CIV PRO OUTLINE - FULL

Pre-Trial Checklist
1. Territorial Jurisdiction – Which of the following will apply?
a. In Personam
b. Pure In Rem
c. Quasi In Rem, Type I
d. Quasi In Rem, Type II
2. Service of Process and Notice – Comply with Due Process and FRCP 4?
3. Subject Matter Jurisdiction – Will the federal court be able to hear the case?
4. Choice/Conflict of Law – Will federal or state law apply?
5. Venue – In which federal district would filing be proper?

Trial
6. Pleadings and Motions
7. Discovery
8. Joinder of Claims and Parties
9. Class Actions
10. Declaratory Judgments and Injunctions

I. Territorial Jurisdiction
A. In Personam Jurisdiction
1. Due Process
a. Amendment V - Nor shall any person be deprived of life, liberty, or
property without due process of law
b. Amendment XIV (14) –No state shall make or enforce any law which shall
abridge the privileges of immunities of citizens; nor shall any state
deprive any person of life, liberty, or property without due process of
law; nor deny to any person within its jurisdiction the equal protection of
the laws
c. Traditional ways to satisfy personal jurisdiction:
i. Served in forum
ii. Agent is served in forum
iii. Domiciled in forum
iv. Consent
2. Raw Power and Physical Presence
a. Pennoyer
i. Raw Power Doctrine – the state/court only has territorial
jurisdiction over a defendant if the state has raw power over them
1. Raw power = physical power a defendant
 2. To get jurisdiction, you must serve the defendant in the
state (hot little hands)
3. If a state does not have raw power over the defendant,
then they cannot fulfill due process
a. Relationship between raw power and the
constitution
ii. Exceptions to raw power (dictum)
1. Waiver - If D waives their constitutional rights by
appearing in court without being served
a. Exception to this = Special Appearance
i. Challenging court’s jurisdiction upon
entering court if the objection is the first
thing the D does in court
ii. In personam – appear to have case
dismissed without being served
2. Agency - If D were to appoint an agent for service of
process
3. Status - In a divorce situation, personal service may not be
required as long as in rem jurisdiction is met
iii. Hess
1. Challenges Pennoyer’s “legal straitjacket” > The P has to
go to the D to serve them – is that fair?
2. Statutory provision: by entering the state, the Legislature
has deemed the Secretary of State (as agent) for the
service of process for out-of-state visitors
iv. Grace v. MacArthur
1. Serving an individual on the plane over the state meets the
Raw Power Doctrine requirements of Pennoyer
v. Burnham
1. Serving husband’s hot little hands in the state satisfies Raw
Power Doctrine (despite lack of minimum contacts)
2. Bedrock rule = if the D is served in the state (i.e. get raw
power), you have satisfied due process
3. Fairness: The Minimum Contacts Doctrine
a. Domicile = Be in a state and intend to reside there
permanently/indefinitely
i. Corporation is domiciled in the state they call home/where they
originate OR where it is incorporated/headquartered
ii. If you are a domiciliary of a state, the court will always have
territorial jurisdiction over you > can take to the bank
1. You keep your domicile until you get a new one
b. International Shoe
i. Shifts from raw power to fairness
ii. For a defendant not present within the territory of a forum to be
subjected to a court's in personam jurisdiction, due process
requires that the defendant have certain minimum contacts with
the forum such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice
iii. Factors to consider:
1. An “estimate of the inconveniences to the defendant” in
having to travel to the forum state
2. The “quality and nature” of the defendant’s activity in the
forum state
3. The extent to which defendant’s activities in the forum
state are “systematic and continuous”
4. The extent to which defendant has enjoyed the “benefits
and protection” of the forum state
5. *Whether or not the plaintiff’s claim against the defendant
arises out of the defendant’s contacts with the forum state
a. Final factor can stand all by itself > Specific
Jurisdiction
b. The other four factors applied > General
Jurisdiction
iv. Long-Arm Jurisdiction
1. Long-Arm Statute = we have power to reach beyond
boundaries of this state, and we are going to exercise it
2. Steps to satisfy
a. Does the statute meet the requirements of the Due
Process Clause?
b. If yes, does the state authorize long-arm
jurisdiction?
c. If yes > state can obtain territorial jurisdiction over
an out-of-stater
v. Burger King
1. Applies Int’l Shoe factors, but adds a few more for
consideration (as part of General Jurisdiction)
a. The burden of the defendant
b. The forum state’s interest in adjudicating the
dispute
c. The plaintiff’s interest in obtaining convenient and
effective relief
 d. The interstate judicial system’s interest in obtaining
the most efficient resolution of the controversies
e. The shared interest of the several States in
furthering fundamental substantive policies
vi. Worldwide Volkswagen
1. Unilateral Activity Principle = The Due Process Clause was
created for the protection of the defendant > Look only at
the contacts of the defendant in the forum state
a. Hansen v. Declan (aunt and the trust)
i. You do not look at the contacts of the
plaintiff
2. Foreseeability: D needs to foresee that they would be sued
in the other state (by meeting minimum contacts)
a. Not that they could foresee the product ending up
in another state (per GR)
vii. McGee
1. Watermark application of specific jurisdiction (claims
arising out of the contact)
2. If the case arises out of the contact of the defendant in the
forum state, Due Process if satisfied
4. Stream of Commerce and the Gray/Radiator Problem
a. Gray Radiator
i. Gray Radiator Doctrine = If a product was produced by a foreign
company and sent it into the stream of commerce, knowing it
might end up in the forum state, that is enough to satisfy Due
Process
1. If D could have reasonably foreseen that the widget might
end up in the foreign state, that is enough for territorial
jurisdiction
a. The injury to the plaintiff is the contact
2. Court relies on the 5th Int’l Shoe factor for this > arises out
of
3. Purposeful availment – D relied upon the benefits and
laws of the forum state but did not necessarily send the
widget into the forum state
4. Purposeful direction – Sending the widget directly to the
forum state
b. Asahi
i. All justices agree that it would be unfair/unreasonable for a
dispute between two foreign companies to be adjudicated in CA
ii. But they disagree on the reasoning: Is Gray Radiator good law?
 1. Applying Gray Radiator – Introduced widget into stream of
commerce knowing it could end up in CA
2. Not applying GR – Introducing a widget without
purposefully sending it to CA is not enough
c. J. McIntyre
i. You have to sue in the forum state > Look only at the contacts of
the D in the forum state
ii. Corporation needs to purposefully avail itself to the benefits and
protections
5. General and Specific Jurisdiction
a. Helicopteros
i. There is a ceiling on general jurisdiction (factor #5) > contacts
separate from the underlying claim not sufficient for territorial
jurisdiction
1. This case showed it’s hard to satisfy general jurisdiction
2. First case to use all 4 other factors and still not sufficient
ii. Specific jurisdiction is the preferred method

b. Daimler
i. General jurisdiction has been demoted as a concept
1. Mercedes is domiciled in Germany, and the claim did not
arise out of the contacts in CA > they are not “at home” in
CA, and it is not their principal place of business
2. Contacts in the forum state need to be relevant to the suit,
but just the parties
3. Added new factor = International comity
ii. Dissent
1. Test was “systematic and continuous” for GJ > no longer
c. Ford
i. Yes, Ford does send cars that blew up the client, but none of the
cars they sent are the ones that blew them up
1. The claim did not arise out of the contact > no specific
jurisdiction in that regard
2. But court implies that even though the typical standard is
not met, it’s close enough to meet SJ
ii. General jurisdiction definitely applies because of all of Ford’s
contacts
6. Waiver of Jurisdiction/Forum
a. Bremen
i. When two companies agree in a contract that disputes will be
held in a certain court (and therefore waive their constitutional
 objections), that agreement stands and will be enforced by the
court
1. Must be freely and knowingly done
B. In Rem Jurisdiction
1. Pure In Rem (rare)
a. Property
i. State’s power over property within the state
ii. Raw power to determine who owns it, based on the property
b. Establish as a matter of law that you have legal title to a thing because
there is no proof/evidence that it could belong to someone else
i. I.e., finding a suitcase of money, no other individuals involved or
potentially involved
c. Shaffer v. Heitner (footnote 17)
i. “A judgement in rem affects the interests of all persons in
designated property”
2. Quasi-In-Rem Type I
a. Person + Property
i. Claim arises out of the property
ii. Defendants = various people who have interest in it
iii. Raw power is based on the property
b. I have an interest in this property, but I have an inkling of who owns it
i. We will establish jurisdiction as long as the assets are in the state
(raw power)
ii. Court has jurisdiction over the property if they do all due diligence
to serve the people who are interested in the property
c. Claim of interpleader:
i. Bring assets into court and say I would like to lay claim to this
property. Who gets what? Have the court decide
1. People are then served so that they can come and make
their claim for the property/thing
d. Shaffer v. Heitner (footnote 17)
i. “Plaintiff is seeking to secure a pre-existing claim in the subject
property and to extinguish or establish the nonexistence of similar
interests of particular persons”
3. Quasi-In-Rem Type II
a. Person + Property (Harris v. Balk)
i. Basis of the suit is not who owns the property
ii. P brings property in only because they have an in personam claim,
and they want to make sure there is assets to satisfy the
judgement
 iii. Raw power satisfied as long as the property brought in for the suit
is in the state’s territory
1. Even if the in personam case originated out of a different
state/D was served in another state
iv. Main claim is in personam claim > property brought in to ensure P
can recover if wins the suit
b. Plaintiff sues D for personal injury and seized property with writ of
attachment (Shaffer v. Heitner)
i. As long as the property value does not exceed what the P is suing
for, this satisfies Due Process because the state has raw power
over the property in its territory
c. Harris v. Balk
i. No longer good law
ii. Don’t need to satisfy the Due Process requirement for the in
personam (underlying) claim
1. Not served in the state
2. Violates Int’l Shoe
iii. Seizing the property = minimum contact
1. As long as judgement on the in personam claim does not
exceed the value of the property, Due Process satisfied
d. Shaffer v. Heitner
i. Footnote 17
1. “Plaintiff seeks to apply what he concedes to be the
property of the defendant to the satisfaction of a claim
against him”
ii. All assertion of state-court jurisdiction must be evaluated
according to the standards set forth in International Shoe and its
project
1. Largely rejects Harris v. Balk
a. Seizing property is NOT a minimum contact and
does not satisfy Due Process (in most cases)
b. But in some cases, it may or may not constitute
Due Process
i. Through Procedure of Attachment
iii. Procedure of Attachment
1. “Sequestration procedure”
2. Narrow conditions where property of D can be seized by P
immediately, rather than waiting for trial
a. Emergency situations with requirements: If P can
show D is about to flee with the property
b. Danger the property will be dissipated
 3. Procedure
a. Factual affidavit
b. Judge has to look at affidavit and approve writ of
attachment
c. D must receive a prompt post-seizure hearing to
object the writ of attachment
d. P must provide a bond for the case should the
attachment be found to be wrongful (for protection
of D)
4. Cannot be done for the purpose of establishing jurisdiction
iv. Limited Appearance
1. Quasi In Rem Type 2
2. D cannot be induced/forced into court by seizing property
a. You can come in and argue re the property without
subjecting yourself to jurisdiction
3. Without this statute, D is forced to come into court and
defend their case (by being served) or forfeit it
v. Transient/Tag Jurisdiction
1. Serving someone from out-of-state by serving them in
person when they enter the state
2. Only applies to individuals (not corporations)
a. Int’l Shoe rules apply to corporations
4. Territorial Jurisdiction Attack
a. In personam – Personal jurisdiction. The principal of law which states that
every state has power over the persons within its sovereign territory
b. Pure in rem – A court has power to settle property rights against the
entire world of property within its territory
c. Quasi in rem type I – A court has power to settle property right disputes
between specific people within its territory
d. Quasi in rem type II – Personal jurisdiction exception: Due Process can be
satisfied when the D has property within the forum state and the P uses
the local attachment statute before the case is brought
i. *Property cannot exceed the amount of the judgement

II. Service of Process

A. Procedural Due Process – Giving D fair notice to be heard
1. Still 5th and 14th Amendments, but different angle
2. Two Step Process
 a. Did service comply with Due Process? (Mullane’s “reasonably
calculated”)
b. Did service comply with FRCP 4 or local rule?
3. Mullane
a. An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present
their objections
i. Service needs to be “reasonably calculated” and due diligence
given to reach/find the Ds
ii. To those who cannot be found, must give proper notice
(reasonably calculated to reach them)
iii. To those not found after due diligence, only then you can give
other notice (i.e., newspaper, statutory notice, published notice)
even if they may not see it
b. Rule 4(e): How to give proper notice
i. Personal service/Hot little hands rule – serve papers to D
ii. Place of abode/suitable age
1. Usual dwelling place
2. Suitable age – no definitive number, but usually 18+
iii. Agent – “This is their agent”
B. FRCP
1. Rule 1: These rules apply to service no matter which state you sue in. These rules
govern federal cases
2. Rule 2: Combine law and equity courts > one judge will adjudicate
a. There is one form of action – the civil action
b. Does not change right to a jury trial
3. Rule 3: How to start an action
a. Need to know when the case has begun > statute of limitations
b. Various options depending on court
i. Some states: You must serve the D and file the action in court
ii. Federal court: action commenced once you file the action in court
> then, you serve the D
c. A civil action is commenced by filing complaint within the court. The case
must be filed before the statute of limitations
4. Rule 4: Summons
a. (d) Waiver of Service
i. Service can be waived when the P mails a copy of the summons
and complaint to the D, and the D signs and sends it back. If the D
 does not waive service, the P will have to formally serve the D,
BUT the D will have to pay the costs
b. Most important - (e) How to Serve an Individual
i. "Hot little hands"
ii. Home/suitable age
iii. Agent
c. (h) Service of a Corporation
i. Must serve an officer or managing agent of that corporation
1. Cannot use tag jurisdiction
2. Int’l Shoe and its progeny rules apply
d. (k) Territorial Limits (statute governing personal jurisdiction in federal
courts)
i. (1) When suing someone in federal court, due process is satisfied
when you serve someone within the state in which the federal
district court sits (i.e. a state in which you could have brought the
suit)
1. (1)(b) Bulge jurisdiction – Need to serve D in a district
court not more than 100 miles from where the summons
was issued
ii. (2) If you want to sue someone in federal court but they do not
have sufficient contracts with any forum in the U.S., then you can
serve them anywhere in the US that satisfies the raw power
doctrine

III. Subject Matter Jurisdiction

A. Does a federal court have the power to adjudicate this certain type of case?
B. Federal court is limited under Article III
1. Article III allows Congress to outline subject matter jurisdiction by statute:
a. 28 USC 1331
b. 28 USC 1332
C. State court
1. General jurisdiction – can hear any case
2. Never will have a subject matter jurisdiction issue if just trying to get into
state court
D. Federal court
1. Limited Jurisdiction (Article III) > Three ways to get into Federal court
a. Diversity Jurisdiction Section 1332: two requirements and need both
i. Cases between citizens of different states (complete diversity)
AND
 ii. Amount in controversy must exceed $75k
b. Federal question Section 1331:
i. Claim must arise under Federal law to qualify as FQ
ii. Must look only at the plaintiff’s complaint
iii. Mottley
c. Supplemental Jurisdiction 1367
i. Pendent jurisdiction – Original claim = federal question, new
claim = “common nucleus of operative fact”
ii. Ancillary jurisdiction – Original claim = diversity, new party =
“substantially related”
2. Federal Question
a. Under 1331, the district courts shall have original jurisdiction of all
civil actions arising under the Constitution, law, or treaties of the U.S.
b. Well Pleaded Complaint Rule
i. To bring a claim under federal question jurisdiction, the P
must plead in their complaint there was a federal question.
Cannot become a FQ if, in anticipation of the D’s defense,
would be a federal defense
c. Mottley
i. You can determine whether the court has SMJ only by looking
at the complaint
1. Well pleaded complaint – Looking at complaint but not
adding to the complaint your guess as to what the D
might say
2. It is not enough to use the anticipated defense as claim
for federal jurisdiction when the original claim was a
state issue (i.e., breach of contract)

d. Merrell Dow
i. Necessity Test/Doctrine
1. Federal jurisdiction exists only if the plaintiffs’ right to
relief depended necessarily on a substantial question
of federal law
2. Was it necessary to show D violated a federal law for P
to make a claim? If no, there is no SMJ because did not
arise under federal law > American Wells formula
e. Grable
i. Smith v. Kansas Title
1. If the resolution of the case depends on the
interpretation of a federal statute, then there should
be federal SMJ > Rejects American Wells formula
3. Diversity Jurisdiction
a. Under 1332, district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and there is complete
diversity of citizens
b. Legal Certainty Test
i. It must appear to a legal certainty that the claim is really for
less than the jurisdictional amount to justify dismissal. The
inability for the P to recover an amount adequate to give the
court jurisdiction does not show his bad faith or oust the
jurisdiction
c. Complete v. Minimal Diversity
i. Complete (1332 and Strawbridge) – Every P must be different
from every D
1. If brought under 1332
2. Default to complete
ii. Minimal (Article III) – Requires that at least 1 D is from a
different state from P
1. If brought under other statutes that are not 1332
d. Citizenship
i. An individual = where they are domiciled
1. Not where they are a resident
ii. Corporation = anywhere it is incorporated and the one state
where it has its nerve center (principal place of business) > 2
places
1. Hertz
4. Supplemental Jurisdiction
a. “Court shall have supplemental jurisdiction over all claims that are so
related to claims in the action within such original jurisdiction that
they form the same case of controversy”
b. Pendent: A federal court can hear a case outside of its subject matter
if it invokes a common nucleus of operative facts to another federal
claim
i. Usually arises in federal question cases
ii. Focus is on adding an additional claim (state claim which has
no diversity)
iii. Determine from vantage point of P
1. Gibbs – Courts should have SMJ over all other claims
that are so related to the actions that they are the
same claim > facts are so intertwined = common
nucleus of operative fact
 c. Ancillary: A federal court can hear a claim outside of its subject
matter if it is substantially related to another federal claim
i. Arises in diversity cases
ii. Focus more on adding additional party (in addition to claim
against that party), as in impleader (where D2 has no FQ)
iii. Determined from vantage point of D
1. Owen Equipment – Rule of Law = No SMJ when P
brings in other D without diversity
d. Post 1367, only referred to as supplemental
i. “Same case of controversy”
1. Clearfield – When the US is a party in the suit, there is
SMJ
5. Removal
a. Section 1441 (a-b)
i. Where P files action in state court but could have filed in
federal. If it could have been brought in federal court, D has
option to remove from state to federal
ii. But an at-home D cannot remove
E. Concurrent Jurisdiction = claim can be brought in federal court (under 1331 or 1332)
and state court (arising under state law) > b7oth courts have jurisdiction
F. Strict Standard  Easier Standard
1. Holmes American Wells – can only argue FQ jurisdiction if the federal law has
authorized suit on the basis of it) >
2. Merrell Dow
3. Grable
4. Kansas Title – sufficient FQ jurisdiction if the outcome of the case depends on
the interpretation/application of the federal statute

IV. Choice/Conflict of Law

A. 28 USC 1652 – The laws of the several states shall be regarded as rules of decision in
civil actions in the courts of the United States
B. The Erie Doctrine: Choice of Law
1. Choice of Law - Choosing Federal or State Law in Diversity Cases
i. Swift v. Tyson
1. Law = statute only
2. Developed a general federal common law to handle
torts/contracts cases to create uniformity > undermined
state law
3. Created forum shopping – Plaintiff shopping around for
law that favors them
b. Erie
i. Use this analysis when there is no FRCP on the issue
ii. Overturns Swift
iii. In diversity cases brought to federal court arising out of state law,
the court must apply the state substantive law (including
decisional law) of the state in which the federal court sits, and
federal procedural law
1. To ensure the case is brought in federal court for
legitimate reasons (not forum shopping) and avoid
inequitable administration of the law
2. Addresses constitutional issue – There is no federal
general common law > it is in the purview of the state’s to
create their own laws
iv. Substantive v. Procedural Laws
1. Substantive = state law
2. Procedural = federal law
c. York
i. In diversity cases, always apply the state law with respect to
statute of limitations (substantive)
ii. How do you define whether a particular rule is substantive or
procedural?
1. Outcome Determinative Test
a. Would it make a difference in the outcome of the
case if we apply state v. federal rule?
b. If yes, you apply the state substantive rule (to not
incentivize forum shopping)
d. Ragan
i. Tolling the statute of limitations > when does it commence?
1. You apply the state rule (substantive) > We cannot give a
case longer life in federal court than it would have had in
the state court
2. But what could be more procedural than that?
ii. Starting to get into territory where outcome determinative test
seems counterintuitive
e. Byrd
i. Do you follow the federal rule for a trial by jury or the state rule?
1. Court here applies the outcome determinative test > It
might affect the outcome
2. They get an answer they don’t like > the rule should be
procedural
3. Demote the outcome determinative test
 ii. Instead of following OD, make up a new rule: Countervailing
Considerations Test:
1. If it’s not certain the outcome will be different, we should
instead look at countervailing considerations
iii. Balancing Test:
1. Federal law prevails over state when there is a strong
federal interest
f. Hanna
i. Use this analysis when the state law is in direct conflict with a
FRCP
ii. Whether or not you should use a state rule that tells you how you
should serve someone > What could be more procedural than
that?
iii. You apply the federal rule
1. If the rule is in the FRCP, you have a tough road to ho to
convince us that this rule is not procedural
iv. “Really Procedural Test”
1. Does the rule really regulate procedure?
2. Further demotes OD
g. Klaxon
i. Conflict of Law = Once decide that state law applies, which state’s
rule do you apply?
ii. Conflict of Law rules are substantive
1. Every state has their own conflict of law rule
2. Reverse Erie: Federal Law Applied in State Courts
a. Dice
i. “Reverse” Erie Doctrine
1. When a claim arising out of federal law is brought in state
court, federal law always applies
a. You apply the federal rule in certain situations
b. Not about procedural/substantive
ii. Where a federal claim is brought in state court, and an issue arises
as to whether there should be a jury trial, you apply the federal
rule
iii. The right to a trial by jury is a substantial, integral part of the
Constitution
1. In “Reverse Erie” situations, the right to a jury is still going
to be defined by federal law
C. Conflict of Law: Choosing Which State Law Applies
1. Can a state always apply their own rule if a case is brought there? No > Two Step
Test
 a. The rule must satisfy the Due Process Clause – is it fair?
b. The rule must satisfy the Full Faith and Credit Clause: every state must
give credence to other states’ decisions and laws
2. Phillips
a. Significant Contacts Test
i. To determine if it would be fair for a state to apply its own law
rather than another state’s law
ii. Two Step Process:
1. Does the state have a conflict of law statute that gives the
state power to exert the law?
2. Does it comply with the significant contacts constitutional
standard?
iii. When the case (as a whole) has significant contacts with the
forum state, the conflict of law is constitutional under the Due
Process Clause and the Full Faith and Credit Clause
iv. Look at the contacts of all people connected to the case, not just
the D
D. Erie Chart
1. Federal/Procedural
a. Manner of service under 4(d) (Hanna)
b. Most FRCPs
c. Right to a Jury Trial (Byrd)
2. State/Substantive
a. Duty of Care/Negligence Standards (Erie)
b. Statute of Limitations (York)
c. Conflict of Law Rules (Klaxon)
d. Rule 3 of FRCP (Ragan)
e. Res Judicata (Angel), Tolling of Statute of Limitations

V. Venue
A. Venue = where in the United States is the proper place to try the case? Which court?
B. Federal Venue Law
1. 1391 Venue Generally
a. In any judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located
b. In the judicial district in which substantial part of the events or omissions
giving rise to the claim occurred
c. If neither of the above methods can be satisfied, then any judicial district
in which any defendant is subject to the court’s personal jurisdiction
 2. 1404 Change of Venue (Transfer from Federal > Federal)
a. For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division
where it might have been brought or where all parties consent
b. Which law is applied?
i. Law of the transferor (Van Dusen)
3. 1406 Cure or Waiver of Defects (Federal > Federal)
a. A district in which is fixed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought
b. Which law is applied?
i. Law of the transferee
4. 1404 Transfer
a. Federal > Federal
b. Discretionary power to transfer to another federal court
c. “Federal housekeeping measure”
d. Based on convenience
e. Apply law of the transferor court
f. Usually filed by D
5. Van Dusen
a. In order to ensure the real reason of transfer is for convenience, the
transferee court must apply the law of the transferor court would have
applied had there been no transfer
i. So that there is no advantage of a change in the law
ii. Uncertainty of the outcome of the decision is a factor to consider
in dismissing the case
1. But it alone is insufficient for dismissal
2. Transfer should be granted based on convenience factors
C. Forum Non Conveniens
1. Forum Non Conveniens:
a. Federal/State > New jurisdiction
b. Discretionary power to dismiss suit where the forum is extremely
inconvenient (on condition that parties will consent to jurisdiction of
other court)
c. Justice seeking remedy
d. Based on convenience
e. Apply law of new court (transferee court)
i. But where the new law would provide no remedy – OK to
dismiss
ii. Usually, filed by D
 f. Private interests (Gil Oil):
iii. Relative case of access to sources of proof
iv. Availability of a compulsory process for attendance of unwilling
v. Cost of obtaining attendance of willing witnesses
vi. Possibility of view or premises
vii. All other practical problems that make trial expeditious
g. Public interests (Gil Oil):
viii. Administrative difficulties flowing from court congestion
ix. Local interest of having localized interests decided at home
x. Interest of having a diversity case in a forum that is at home
with the law that must govern the action
xi. Avoidance of unnecessary problems in conflicts of law
xii. Unfairness of burdening citizens in an unrelated forum with jury
duty
2. Piper Aircraft
a. 1404(a) was designed as a “federal housekeeping measure,” allowing
easy change of venue within a unified federal system
i. Internal transfer from one federal court to another
b. Just because the other court might apply another law is not sufficient to
keep the case in a given court

VI. Pleadings and Motions

A. Motions = asking the court to do something
B. Pleadings = special purpose
1. To determine what facts are going to be an issue at trial > To isolate the facts
from the law, so that the jury decides only the facts at issue
2. Notice Pleading – If give D basic notice in the complaint, passes muster
a. Conley v. Gibson
i. All you need to draft a complaint is to give the D notice
ii. Don’t need to give details, just need to tell the D what the case is
about to get into court
3. Plausibility Doctrine – In order for a complaint to state a claim, the P must allege
facts from which it can be inferred that D’s conduct was liable
a. Twombly
i. Companies colluding, Ps file complaint thinking the evidence will
come out in discovery
ii. Reformation of Conley
iii. P must allege facts from which it can plausibly be inferred that D
has engaged in liable conduct
 1. Set a new standard for the validity of a claim
2. Notice pleading insufficient
3. P cannot make a claim without evidence
b. Iqbal
i. Sued Attorney General for negligent conduct at a detention center
1. Court says it cannot be plausibly inferred that the conduct
of lower officials was condoned, required, etc. by AG
Ashcroft > Insufficient to state a claim
ii. Application of Twombly – Must allege facts in your complaint
c. Also applies to the answer
i. If you are going to raise a defense, you have to state facts from
which the defense can be reasonably inferred
C. Rule 8. General Rules of Pleading
1. 8(a) – Claim for Relief
a. Tells you what must be in the summons and complaint
b. Three parts:
i. Statement of the court’s subject matter jurisdiction
ii. Facts
iii. Damages
2. 8(b) – Defenses
a. D must provide short statement in which he admits or denies part of the
complaint
b. General denial (“I didn’t do any of it”) is improper in a civil case
i. Simply deny those allegations which you in good faith believe are
not true
ii. Denial must fairly respond to the allegation
iii. Good faith
1. No general denials
2. Must admit what’s known to be true
3. And deny that which is not
3. 8(c) – Affirmative Defenses
a. “Yes, but” defenses
i. Will have to admit something in the complaint and say, “yes,
but…”
ii. An avoidance rather than a direct denial of the claim
b. If D is going to use one of these defenses, MUST DO SO IN THE RESPONSE
i. Cannot bring it up at trial
ii. D has obligation to show by the facts the defense
iii. List in this rule is NOT comprehensive
4. 8(d) – Pleading to Be Concise and Direct; Alternative Statements; Inconsistency
a. Each allegation must be simply and direct
 b. Can allege conflicting allegations if it is unknown in good faith
c. Party may state as many separate claims or defenses as it has in a
complaint
i. The fewer facts alleged, the better
D. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the
Court, Sanctions
1. 11(a) – Signature
a. If you are the lawyer representing the claim, you are the officer of the
court
b. You must sign the complaint upon the information as you believe it to be
2. 11(b) – Representations to the Court
a. You are deemed making representations to the court
i. You must believe every motion, pleading, etc. to be true based
upon the information as you believe it to be
ii. Non-frivolous argument > You have some evidentiary support for
the claims
E. Rule 12. Defenses and Objections: When and How Presented Motions For Judgment
on the Pleadings; Consolidating Motions Waiving Defenses; Pretrial Hearing
1. 12(a) – Time to Serve a Responsive Pleading
a. D has 21 days to respond to the complaint
b. If doesn’t respond, loses the case by default
2. 12(b) – How to Present Defenses
a. D has the option to dismiss the case for several reasons:
i. Lack of subject matter jurisdiction
ii. Lack of personal jurisdiction
iii. Improper venue
iv. Insufficient process
v. Insufficient service of process
1. Not made in line with Rule 4 (hot little hands or place of
abode)
vi. Failure to state a claim upon which relief can be granted > MOST
COMMON
1. P alleged injured, that D was responsible, BUT does NOT
state causation/part of the claim
vii. Failure to join a party under Rule 19
3. 12(c) – Motion for Judgment on the Pleadings
a. Get rid of the facts > Only legal question remains
4. 12(e) – Motion for a More Definite Statement
a. D says, “be more specific please”
i. I can’t answer your complaint because it’s too vague
ii. Can file for a more definite statement
 iii. Rarely done because usually get details in discovery
5. 12(f) – Motion to Strike
a. Special Demurrer > Asking court to dismiss just part of the claim, not the
whole thing
6. 12(h) – Waiving and Preserving Certain Defenses
a. If you don’t make motion to dismiss in a timely manner, you waive it
b. Must make all motions to dismiss in one motion > Must combine all
motions/grounds for dismissal in one motion
i. If you don’t then waive your objection
F. Rule 13. Counterclaim and Crossclaim
1. 13(a) – Compulsory Counterclaim
a. Arises out of the same transaction P sues D for
i. D must bring his claim now or hold his peace > Won’t be able to
bring it later because doctrine of res judicata (will already be
decided)
ii. Supplemental jurisdiction is satisfied > Allowed in state court
2. 13(b) – Permissive Counterclaim
a. Any claim the D has against the P which does not arise out of the same
transaction as P’s claim against D
i. If claim is permissive and is a state claim > You got a problem,
subject to dismissal under Rule 12 for lack of SMJ (1367)
3. 13(g) – Crossclaim Against a Co-party
a. A pleading may state as a crossclaim any claim by one party against a co-
party if the claim:
i. Arises out of the transaction or occurrence that is the subject
matter of the original action, OR
ii. If the claim relates to any property that is the subject matter of
the original action
b. Crossclaim Example:
i. P1 sues D1 and D2 (both already in the lawsuit)
ii. Then, D1 says it’s all D2’s fault > Wants to bring a claim:
1. D1’s claim against D2 arises out of the same transaction,
OR
2. Indemnity situation: not arising out of the same
transaction directly
a. Original claim = tort claim
b. New claim = contract claim
c. Indemnity > If I get in trouble, you need to cover
me

c. Impleader Example:
 i. Not the same as crossclaim > Between co-defendants already
brought into the lawsuit
ii. P1 sues D1 only
iii. D1 wants to bring in D2 > D1 impleads D2 (files a third-party
complaint)
1. Arises out of the same transaction, OR
2. Indemnity situation
a. If D1 found liable to P, then they think D2 should
indemnify them
G. Rule 14. Third-Party Practice
1. A defending party may, as third-party plaintiff, serve a summons and complaint
on a nonparty who is or may be liable to it for all or part of the claim against it
a. But the third-party plaintiff must, by motion, obtain the court’s leave if it
files the third-party complaint more than 14 days after serving its original
answer
2. The plaintiff may assert against the third-party defendant any claim arising out of
the transaction or occurrence that is the subject matter of the plaintiff’s claim
against the third-party plaintiff
H. Rule 15. Amended and Supplemental Pleadings
1. 15(a) – Amendments Before Trial
a. A party may amend its pleading once as a matter of course within 21 days
after serving it
i. Amendments to make the complaint/pleadings legally sound are
generally approved
b. Should be liberally granted to Ps > So that cases can get into court
1. I.e., P forgot to allege causation
2. 15(c) – Relation Back of Amendments
a. An amendment to a pleading relates back to the date of the original
pleading when:
i. SOL allows it
ii. Amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out in the original
pleading, OR
iii. Amendment changes the party or the naming of the party against
whom a claim is asserted
1. The party to be brought in knew or should have known
that the action would have been brought against it, but for
a mistake concerning the proper party’s identity
b. Within the statute of limitations, P files the claim > But then P is made
aware he could have filed a different type of complaint AFTER SOL runs
i. Can P amend its original complaint? Probably
 1. If amended complaint refers to the same
conduct/transaction in the original complaint, that will
pass muster > It RELATES BACK, even if using a different
legal theory
c. Worthington v. Wilson
i. Relation Back Doctrine – Can only relate back to correct a mistake
(not just because P lacked knowledge when the complaint filed)
3. 15(d) – Supplemental Pleadings
a. Permits a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the
pleading to be supplemented
i. P alleges that D had entered into agreement with an acceleration
clause (if D pays back the damages, might provide that if D misses
X amount, D has to pay it all back at once)
ii. Want to amend complaint to say, “since OG complaint, D has
missed even more payments” > would file supplemental pleading
I. Rule 17. Plaintiff and Defendant; Capacity, Public Officers
1. 17(a) – Real Party in Interest
a. An action must be prosecuted in the name of the real party in interest.
The following may sue in their own names without joining the person for
whose benefit the action is brought:
i. Executor; administrator; guardian; ballee; trustee; party with
whom or in whose name a contract has been made for another’s
benefit; and a party authorized by statute
b. Whoever is bringing the lawsuit must have standing to bring it
i. Must have sufficient stake in the claim
2. 17(b) – Capacity to Sue to Be Sued
a. Determined as follows:
i. For any individual who is not acting in a representative capacity,
by the law of the individual’s domicile;
ii. For a corporation, by the law under which it was organized; and
iii. For all others, by the law of the state where the court is located
b. Someone of sound mind and of legal age has capacity to be sued
i. Problems arise for mentally disabled, underage, etc.
ii. Look to state substantive law for those not of legal age and sound
mind
J. Rule 18. Joinder of Claims
1. 18(a) – In General
a. A party asserting a claim may join, as independent or alternative claims,
as many claims as it has against the opposing party
2. 18(b) – Joinder of Contingent Claims
 a. A party may join two claims even though one of them is contingent on
the disposition of the other
3. P may allege/assert all claims he has even if they are unrelated (for efficiency
purposes)
K. Rule 20. Permissive Joinder of Parties
1. 12(a) – Persons Who May Join or Be Joined
a. Plaintiffs
i. Persons may join in the action as plaintiffs if they assert any right
to relief with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and any
question of law or fact common to all plaintiffs will arise in the
action
b. Defendants
i. Persons may be joined as defendants if any right to relief is
asserted against them or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and any
question of law or fact common to all defendants will arise in the
action
2. Two scenarios
a. Multiple P’s can join to sue D if their suit arises out of the same
transaction
b. One P can sue more than one D if suit arises out of the same transaction
i. For efficiency
L. Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial;
Conditional Ruling
1. 50(a) – Judgment as a Matter of Law
a. If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may
i. Resolve the issue against the party
ii. Grant a motion for judgment as a matter of law
b. A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury. The motion must specify the
judgment sought and the law and facts that entitle the movant to the
judgment
c. Directed verdict – do not let the case stand where there is insufficient
evidence
i. At the end of P’s case, D can make a motion for a directed verdict
for insufficient evidence (if denied, case proceeds)

2. 50(b) – Renewing Motion After Trial; Alternative Motion for a New Trial
 a. If the court does not grant a motion for judgment as a latter of law under
50(a), the movant may still file a renewed motion for judgment as a
matter of law no later than 28 days after the entry of judgment or after
the jury was discharged
b. The court may:
i. Allow judgment on the verdict if the jury returned a verdict;
ii. Order a new trial; or
iii. Direct the entry of judgment as a matter of law
c. Judgment NOV (notwithstanding the verdict) – Asking the judge to nook
pro took (go back to time when D asked for the directed verdict and
reconsider denial/reverse the verdict)
i. Grounds for this are the same as 50(a), but timing different
ii. Can’t ask for 50(b) if never asked for 50(a) (can’t reconsider
something if never requested the motion to begin with)
M. Rule 56. Summary Judgment
1. 56(a) – Motion for Summary Judgment or Partial Summary Judgment
a. A party may move for summary judgment. The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.
The court shall state on the record the reasons for granting/denying the
motion
i. A party may file a motion for summary judgment at any time until
30 days after the close of all discovery
ii. A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by
1. Citing to particular parts of materials in the record, or
2. Showing that the materials cited do not establish the
absence or presence of a genuine dispute
2. 56(e) – Failing to Properly Support or Address a Fact
a. If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact, the court may:
i. Give an opportunity to properly support or address the fact;
ii. Consider the fact undisputed for purposes of the motion;
iii. Grant summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the
movant is entitled to it; or
iv. Issue any other appropriate order
3. Take all the evidence, depositions, etc. and now make a motion for summary
judgment because no dispute to material fact
a. Get rid of the facts (by admitting them) so that only legal issue remains
 i. D does dispute a fact > You attach affidavits: testimony in writing
demonstrating D’s dispute is wrong
1. Must back up motion for summary judgment with
evidence that there actually is no dispute to the material
facts
ii. If D does not assert counter-affidavit with their own evidence
disputing P’s evidence, then P’s affidavit is deemed to be
automatically true
b. 56(a) – Shows no dispute > 56(b) – Supported with affidavit > 56(c) –
What can be in an affidavit > 56(e) – If no counter affidavit, automatically
deemed to be true
N. Rule 59. New Trial; Altering or Amending a Judgment
1. The court may, on motion, grant a new trial on all or some of the issues – and to
any party – as follows:
a. After a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or
b. After a nonjury trial, for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court
2. Look up case law to see what types of errors can be the basis for a new trial
a. Mistake must be a harmful error
b. Need to show but for that mistake, the outcome would have been
different
O. SUMMARY OF MOTIONS
1. Type 1
a. Purpose is to get rid of the facts so that only the legal question remains
b. Admit the facts > No dispute > Decide as a matter of law
i. Fail to state a claim (12(b)(b))
ii. Motion for judgment on the pleadings (12(c))
iii. Motion for summary judgment (Rule 56)
2. Type 2
a. Evidence presented by opponent is insufficient for reasonable juror to
decide as a matter of law
b. Judgment NOV – reconsider decision, can’t reverse verdict but can nook
pro took
i. Directed Verdict #1 (Rule 50)
ii. Directed Verdict #2 (Rule 50)
3. Type 3
a. Based on judge making mistakes
b. Not about facts/evidence > Rather, an error has been made and there
should be a new trial
i. New Trial (Rule 59)
 ii. Amend Findings (Rule 59)
iii. Amend Judgment (Rule 59)
4. Type 4
a. Miscellaneous
5. Pleadings
a. Complaint (Rule 8)
b. Answer (Rule 8)
c. Counter Claim (Rule 13)
d. Cross Claim (Rule 13)
e. Impleader (Rule 14)
VII. Discovery
A. Purpose is for both sides to know what each other has
1. Ideally, they will then settle
2. Good in theory but not in practice
B. Rule 26. Duty to Disclose; General Provisions Governing Discovery
1. 26(a) – Required Disclosures
a. A party must provide to the other parties:
i. The name and, if known, the address and telephone number of
each individual likely to have discoverable information – along
with the subjects of that information – that the disclosing party
may use to support its claims or defenses, unless the use would
be solely for impeachment
b. A party must disclose to the other parties the identity of any witness it
may use at trial to present evidence. This disclosure must be
accompanied by a written report
c. The required material you can get from your opponent (without asking):
i. Name, address, phone # - with discoverable info
ii. Expert testimony – their identity and a written statement about
what they’ll say (only if they’ll be called to the stand)
d. Anything beyond 26(a) > You will have to ask for it
2. 26(b) – Discovery Scope and Limits
a. (b)(1) The scope of discovery is as follows: Parties may obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case. Information within
this scope of discovery need not be admissible in evidence to be
discoverable
i. Scope = very broad
1. Virtually anything relevant to the case regardless of
whether admissible into evidence
2. Really only objection can make is based on privilege
 b. (b)(3) Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation. But, those materials may be
discovered if:
i. The party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means
ii. If the court orders discovery of those materials, it must protect
against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other
representative concerning the litigation
1. Two-part test = substantial need & undue hardship
c. Hickman v. Taylor
i. Work Product Privilege – We have a limited work product
privilege for documents obtained/prepared in anticipation of
litigation
1. Can be overcome where witnesses not available/hard to
reach AND there is substantial need
2. Mental impressions of the lawyer are always ABSOLUTELY
PRIVILEGED
a. In performing his various duties, it is essential that
a lawyer work with a certain degree of privacy, free
from unnecessary intrusion by opposing parties
and their counsel
d. Upjohn Case
i. Interpreting the scope of discovery
ii. Mental impressions are absolutely privileged
1. Documents about strategy = absolutely privileged
2. Not outright stated in the case, but implied
3. 26(c) – Protective Orders
a. A party or any person from whom discovery is sought may move for a
protective order. The motion must include a certification that the movant
has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action
b. The court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense
i. Cases where the opponent is entitled to the info, but it would be
embarrassing/oppressive to cough it up > Court protects you in
that case
C. Rule 30. Depositions by Oral Examination
1. 30(a) – When a Deposition May Be Taken
a. A party may, by oral questions, depose any person, including a party,
without leave of court
b. A party must obtain leave of court, and the court must grant leave to the
extent consistent with 26(b)(1) and (2):
i. If the parties have not stipulated to the deposition and:
1. If the deposition would result in more than 10 depositions
being taken
a. Not a super strict rule – judges lenient
2. The deponent has already been deposed, or
3. The party seeks to take the deposition before the time
specified in Rule 26(d) unless party certifies in notice, with
supporting facts, that the deponent is expected to leave
the United States and be unavailable for examination in
the country after that time, or
4. If the deponent is confined in prison
a. Oral deposition – Can call just about any witness
i. Subpoena and they must appear, have the
power of the court behind you
ii. Interview witness under oath, transcribed
by a reporter, to see what they know/what
the opponent evidence is
2. 30(b) – Notice of the Deposition; Other Formal Requirements
a. A party who wants to depose a person by oral questions must give
reasonable written notice to every other party. The notice must state the
time and place of the deposition and, if known, the deponent’s name and
address. If the name is unknown, the notice must provide a general
description sufficient to identify the person or the particular class or
group
3. 30(c) – Examination and Cross-Examination; Record of Examination; Objections;
Written Questions
a. The examination and cross-examination of a deponent proceed as they
would at trial. After putting the deponent under oath or affirmation, the
officer must record the testimony. The testimony must be recorded by
the officer personally or by a person acting in the presence under the
direction of the officer
b. An objection at the time of the examination – whether to evidence, to a
party’s conduct, to the officer’s qualifications, to the manner of taking
the deposition, or to any other aspect of the deposition – must be noted
 on the record, but the examination still proceeds; the testimony is taken
subject to any objection
i. An objection must be stated concisely in a nonargumentative and
nonsuggestive manner
ii. A person may instruct a deponent not to answer only when
necessary to preserve a privilege, to enforce a limitation ordered
by the court, or to present a motion
1. Put your objection on the record, so that it appears in
court, but witness still must answer
D. Rule 33. Interrogatories to Parties
1. 33(a) – In General
a. A party may serve on any other no more than 25 written interrogatories,
including all discrete subparts
b. An interrogatory may relate to any matter that may be inquired into
under Rule 26(b). An interrogatory is not objectionable merely because it
asks for an opinion or contention that relates to fact or the application of
law to fact, but the court may order that interrogatory need not be
answered until some designated time
i. Trying to limit massive scope of discovery > Not getting around
the limit of 25 questions
ii. As broad as Rule 26(b) > Any material relating to the case that is
not privileged
2. 33(b) – Answers and Objections
a. The interrogatories must be answered:
i. By the party to whom they are directed, or
ii. If that party is a public or private corporation, a partnership, an
association, or a governmental agency, by any officer or agent,
who must furnish the information available to the party
1. Interrogatories = written questions
a. Can only be sent to the opposing party (NOT
witnesses)
b. Can’t follow up after answer is given (in depositions
you can)
E. Rule 34. Producing Documents, Electronically Stored Information, and Tangible
Things, or Entering onto Land, for Inspection and Other Purposes
1. 34(a) – In General
a. A party may serve on any other party a request within the scope of Rule
26(b):
i. To produce and permit the requesting party or its representatives
to inspect, copy, test, or sample the following items in the
responding party’s possession, custody, or control:
 1. Any designated documents or electronically stored
information – stored in any medium from which info can
be obtained, or
2. Any designated tangible things
ii. To permit entry onto designated land or other property possessed
or controlled by the responding party, so that the requesting
party may inspect, measure, survey, photograph, test, or sample
the property or any designated object or operation on it
2. Shorty but biggie
a. Entitled to documents in possession of your opposing party (don’t forget
work product privilege!)
b. Any document relevant to the claim, or any tangible things
F. Rule 35. Physical and Mental Examinations
1. 35(a) – Order for an Examination
a. The court where the action is pending may order a party whose mental or
physical condition – including blood group – is in controversy to submit to
a physical or mental examination by a suitably licensed or certified
examiner
b. The order:
i. May be made only on motion for good cause and on notice to al
parties and the person to be examined; and
ii. Must specify the time, place, manner, conditions, and scope of
the examination, as well as the person or persons who will
perform it
1. Contentious one
2. Can order court to have party see their doctor > Entitled to
ask for physical examination
a. Easer to get order for D than for P
G. Rule 36. Requests for Admission
1. 36(a) – Scope and Procedure
a. A party may serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within the
scope of Rule 26(b)(1) relating to:
i. Facts, the application of law to fact, or opinions about either; and
ii. The genuineness of any described documents
b. Each matter must be separately stated.
c. A matter is admitted unless, within 30 days after being served, the party
to whom the request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the party or
its attorney
 2. Request for admission = “I ask you to admit that you signed a copy of this
contract at…”
a. Under oath, can’t lie
b. Easiest way to get D to admit signed the contract
c. 36(a)(3) – If D doesn’t respond, they automatically for the record, have
admitted it
i. Unlike interrogatories, with a request for admissions, you hope
they don’t answer
H. Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
1. 37(a) – Motion for an Order Compelling Disclosure or Discovery
a. On notice to other parties and all affected persons, a party may move for
an order compelling disclosure or discovery
b. A motion for an order to a party must be made in the court where the
action is pending. A motion for an order to a nonparty must be made in
the court where the discovery is or will be taken
c. If a party fails to make a disclosure, any other party may move to compel
disclosure and for appropriate sanctions
2. Sanctions Sough in the District Where the Action is Pending
a. If a party fails to obey an order to provide or permit discovery, the court
where the action is pending may issue further just orders. They may
include:
i. Directing the matters embraced in the order or other designated
facts be taken as established for the purposes of the action;
ii. Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
iii. Striking pleadings in whole or in part;
iv. Staying further proceedings until the order is obeyed;
v. Dismissing the action or proceeding in whole or in part;
vi. Rendering a default judgment against the disobedient party; or
vii. Treating as contempt of court the failure to obey any order except
an order to submit to a physical or mental examination
1. What can the judge do to enforce the rules of discovery?
2. 32(A)(2):
a. Find you in contempt, find against you (nuclear
option = you lose the whole case, rarely used)
VIII. Joinder of Claims and Parties
A. Must have a stake (whoever is bringing the case)
1. If have an interest in that stake, must fight it out in this court
2. Must comply with Rule 22 or the statute
B. Rule 22. Interpleader
1. By a plaintiff – Persons with claims that may expose a plaintiff to double or
multiple liability may be joined as defendants and required to interplead. Joinder
for interpleader is proper even though:
a. The claims of several claimants, or the titles on which their claims
depend, lack a common origin or are adverse and independent rather
identical; or
b. The plaintiff denies liability in whole or in part to any or all of the
claimants
2. By a defendant – A defendant exposed to similar liability may seek interpleader
through a crossclaim or counterclaim
3. This rule supplements – and does not limit – the joinder of parties allowed by
Rule 20. The remedy this rule provides is in addition to and does not supersede
or limit the remedy provided by 28 U.S.C. 1335, 1397, and 2361. An action under
those statutes must be conducted under these rules
a. Real conflict NOT between P and D
i. It’s a question of trustee wanting out of the suit and leaving it a
battle between the claimants > Real conflict is between them
ii. Bringing others into court to fight it out amongst themselves
b. Requirements under Rule 22
i. Complete diversity
ii. Service of process in federal court (state in which court sits has TJ
over Ds) – 4K
iii. Venue under 1391
iv. Greater than 75k under 1332
C. 28 U.S.C. 1335. Interpleader
1. The district courts shall have original jurisdiction of any civil action of
interpleader or in the nature of interpleader filed by any person, firm, or
corporation, association, or society having in his or its custody or possession
money or property of value of $500 or more, if
a. Two or more adverse claimants, of diverse citizenship are claiming or may
claim to be entitled to such money or property
i. Only minimal diversity required under 1335
1. Between claimants – just one must be of a different state
than just one other claimant
 ii. P can bring case in any venue in which any one of the claimants
resides
1. Nationwide service – you can sue all claimants anywhere
in the whole US (under the raw power doctrine)
iii. Only needs to be $500 instead of $75k

D. Interpleader Overview
1. Rule 22
a. Complete diversity
b. 4(k) Service of process
c. 28 USC 1391 Venue
d. > 75K (28 USC 1332)
2. 28 USC 1335
a. Minimal diversity
b. Nationwide service (28 USC 2361)
c. Relaxed venue (28 USC 1397)
d. > 500 (28 USC 1335)
i. If 22 is so much stricter, why would you ever file under that
instead of the statute?
1. If all the claimants are from the same state (i.e., no
diversity between the claimants)
3. Tashire
a. P1 State Farm sues
i. Greyhound
ii. Vanta (driver)
iii. Clark (truck driver)
iv. Glasgow (truck owner)
v. School children
b. State Farm’s liability is limited to $20k (the insurance policy amount) >
Makes a stake of $20k, then wants to remove themselves and have the
other claimants battle it out for their part of the $20k
i. Would like injunction from the court to prevent all those people
from bringing a claim against them elsewhere
c. Greyhound then says “we’d like to switch sides with State Farm”
i. Court says NO
ii. Greyhound doesn’t have a specific stake > Their potential liability
for the accident is unlimited
1. Clark and Vanta’s liability are also not limited to a specific
stake, ONLY State Farm’s is
2. State Farm doing interpleader properly > Suring everyone
because they have a stake
E. Rule 24. Intervention
1. You try to get into that case to make sure you are heard on a point
2. 24(a) – Intervention of Right
a. On timely motion, the court must permit anyone to intervene who:
i. Is given an unconditional right to intervene by a federal statute; or
ii. Claims an interest relating to the property or transaction that is
the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s
ability to protect its interest
1. Practical matter
2. 99% of the time, res judicata applies > So D has to get into
this lawsuit as a practical matter or they can never win
3. 24(b) – Permissive Intervention
a. On timely motion, the court may permit anyone to intervene who:
i. Is given a conditional right to intervene by a federal statute; or
ii. Has a claim or defense that shares with the main action a
common question or law or fact
1. Judge’s discretion
2. Need to show there is a common question or law or fact
4. Atlantis Dev. Corp. v. United States
a. Stare decisis = Must follow precedent
b. Res judicata = Already decided
c. Company hoping to build a casino on some rocks, claiming not part of the
US > Atlantic makes claim to it
i. US sues Acme (little company) during Atlantis’s claim > US wants
to establish as a matter of law that the rocks are part of US
territory
ii. Atlantis wants to be heard on this issue
1. Files answer saying they’d like to be D in the US v. Acme
case > Want to intervene
2. Because of the case is decided without them and becomes
res judicata, then an issue of stare decisis. They will be SOL
iii. Court sends the case back to trial to allow Atlantis to intervene
1. Because the claim is who owns it > Exactly the claim
Atlantis was making in their own claim
2. Meets the requirements of permissive intervention >
Common question of law or fact
IX. Class Actions
A. Rule 23. Class Actions
1. Two sets of requirements
2. 23(a) – Prerequisites
a. One or more members of a class may sue or be sued as representative
parties on behalf of all members only if:
i. The class is so numerous that joinder of all members is
impracticable
ii. There are questions of law or fact common to the class
iii. The claims or defenses of the representative parties are typical of
the claims or defenses of the class; and
iv. The representative parties will fairly and adequately protect the
interests of the class
1. Must satisfy all 4 before you can get a court to certify your
class:
a. Numerosity – no specific number, but no limit
b. Commonality – 1-2 common factors or claims
c. Typicality – representative must be typical of the
class
d. Adequacy – rep. must show court that they have
the means of adequately protecting the class
3. 23(b) – Types of Class Actions
a. A class action may be maintained if Rule 23(a) is satisfied and if:
i. Prosecuting separate actions by or against individual class
members would create a risk of:
1. Inconsistent or carrying adjudications with respect to
individual class members that would establish
incompatible standards of conduct for the party’s
opposing the class, or
2. Adjudications with respect to individual class members
that, as a practical matter, would be dispositive of the
interests of the other members not parties to the
individual adjudications or would substantially impair or
impede their ability to protect their interests
ii. The party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting
the class as a whole; or
iii. The court finds that the questions of law or fact common to class
members predominate over any questions affecting only
 individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:
1. Class members’ interests in individually controlling the
prosecution or defense of separate actions;
2. The extent and nature of any litigation concerning the
controversy already begun by or against class members;
3. The desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
4. The likely difficulties in managing a class action
a. Need to meet the requirements of one type
i. B1: Inconsistent precedent at risk if case not
certified as a class
1. One case, one lawsuit, one
precedent set
2. Otherwise, inconsistent for people
not brought into the class
ii. B2: “I want a declaration” has to be the
history
1. Women suing military, seeking
advancement of career
opportunities
iii. B3: Must show the one commonality
predominates over lesser common features
1. Must provide notice reasonably
calculated to reach each class
member individually for them to opt
out if they so choose
2. Expensive type to bring
4. 23(c) – Certification Order; Notice to Class Members; Judgment; Issues Classes;
Subclasses
a. Certification Order
i. At early practicable time after a person sues or is sued as a class
representative, the court must determine by order whether to
certify the action as a class action
ii. An order that certifies a class action must define the class and the
class claims, issues, or defenses and must appoint class counsel
iii. An order that grants or denies class certification may be altered or
amended before final judgment
 b. Notice
i. For any class certified under Rule 23(b)(1) or (b)(2), the court may
direct appropriate notice to the class
ii. For any class certified under (b)(3), the court must direct to class
members the best notice that is practicable under the
circumstances, including individual notice to all members who can
be identified through reasonable effort. The notice must clearly
and concisely state in plain, easily understood language:
1. The nature of the action
2. The definition of the class certified
3. The class claims, issues, or defenses
4. That a class member may enter an appearance through an
attorney if the member so desires
5. That the court will exclude from the class any member
who requests exclusion
6. The time and manner for requesting exclusion; and
7. The binding effect of a class judgment on members under
Rule 23(c)(3)
B. Cases
1. Hansberry
a. First case to say there is such a thing as a class action (with requirements)
i. Case upon which class action rules are based
b. Fundamental principle: Everyone gets their day in court, but this court
recognizes an exception for the first time
i. A class can represent members who are not in court
c. There is not a clearly ascertainable class here
i. People have different interests
ii. Some want the covenant passed and others don’t > Two classes
2. Walmart
a. Crux of the case is the commonality rule (questions of law or fact
common to the class)
i. Walmart’s policy is against having uniform employment practices
though
b. Sought certification under B1 and B2 only, didn’t meet the requirements
c. B3
i. Requires you to give notice to everyone in the class
ii. Individual notice (Book Club Method)
1. Notice that the court will EXCLUDE any member of the
class who requests it
2. Class will exclude only members that request it
X. Declaratory Judgments and Injunctions
A. Usually go together > If see a declaratory judgment, look for an injunction (not
necessarily true for the reverse)
B. Rule 57. Declaratory Judgment
1. These rules govern the procedure for obtaining a declaratory judgment under 28
U.S.C 2201. The existence of another adequate remedy does not preclude a
declaratory judgment that is otherwise appropriate. The court may order a
speedy hearing of a declaratory-judgment action
C. 28 U.S.C 2201. Creation of Remedy
1. In a case of controversy within its jurisdiction, as determined by the
administering authority, any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such
D. Rule 65. Injunctions and Restraining Orders
1. 65(a) – Preliminary Injunction
a. The court may issue a preliminary injunction only on notice to the
adverse party
b. Before or after beginning the hearing on a motion for a preliminary
injunction, the court may advance the trial on the merits and consolidate
it with the hearing. Even when consolidation is not ordered, evidence
that is received on the motion and that would be admissible at trial
becomes part of the trial record and need not be repeated at trial. But
the court must preserve any party’s right to a jury trial
2. 65(b) – Temporary Restraining Order
a. The court may issue a temporary restraining order without written or oral
notice to the adverse party or its attorney only if:
i. Specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in
opposition; and
ii. The movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required
3. 65(c) – Security
a. The court may issue a preliminary injunction or a temporary restraining
order only if the movant gives security in an amount that the court
considers proper to pay the costs and damages sustained by any party
found to have been wrongfully enjoined or restrained. The United States,
its officers, and its agencies are not required to give security
E. Declaratory Judgment Examples/Cases
1. Article III
a. Power of judiciary is limited to controversies
i. Only purpose is to decide cases in controversy
ii. The byproduct of the decision/the reasoning is what we care
about (constitutional byproduct)
1. Big question of declaratory judgments: Are we dealing
with a case in controversy or is the Supreme Court doing
more?
b. Case in Controversy Touchstones
i. Real controversy (not a set-up)
ii. Standing – P must have a stake in the outcome
iii. Adverse parties – Truly adverse conflicts between each other
iv. Concrete facts – Complaint must allege facts from which the
feared contingency can be inferred, vague facts not enough
v. “High likelihood”
2. Porno book > Illegal
a. Can take the book off the shelf, can get arrested for having the book, or
can file a declaratory judgment
i. Ask for declaratory judgment on freedom of speech
ii. But what happens while wait for that to be decided in court? File
an injunction so don’t go to jail
3. Muskrat Case
a. Congress wants to shift the boundary of an Indian tribe, realized this was
a constitutional issue
i. Asks Supreme Court to tell them if the statute is constitutional or
not
ii. “We are not your legal flunkies, your legal counsel”
iii. Read Article III > We decide cases in controversy, we don’t provide
legal advice
b. Indirectly set up a fraudulent case to get to Supreme Court
i. We do not have power under Article III to decide this case
ii. Must be truly adverse parties
4. Willing Case
a. Wanted to tear down opera house, unclear if lease allowed it > Want to
go to court for interpretation
b. Bring case to court > File complaint for declaratory relief
i. “We are not your legal flunkies”
ii. This is not a case in controversy – all speculative
iii. What the P seeks is simply a declaratory judgment and to grant
that relief is beyond Article III
 5. Nashville R.R.
a. Interstate Commerce Clause – No state can interfere with interstate
commerce, only Congress can
i. Nashville R.R set up super high tax on coal > Want to sue
ii. But no controversy yet – Do we need to wait?
b. Supreme Court comes up with exception to Muskrat and Willing
i. If there is a high likelihood that the feared contingency will occur,
the Supreme Court can hear the case
ii. As long as there are facts in the complaint from which it can be
inferred that there is a high likelihood
6. Aetna Life
a. Insurance co. brings declaratory judgment to get rid of husband’s policy
because he’s not paying the premiums
b. P brings complaint with the policy, proof if his disability, proof that he
doesn’t need to pay, etc.
i. The contingency – What is the likelihood the insured will die? High
ii. Court grants declaratory judgment
7. Ties Case
a. Some co. has a device to make ties – Another co. has a patent on the ties
b. Bring declaratory judgment action
i. Include the device prototype, the patent, and three ties they
made > We intend to make more
ii. Is just saying you’re going to do it enough for a high likelihood?
No, need facts
iii. Majority dismisses for failure to state a claim
8. United Workers
a. Congress passes statute that says the govt. employees cannot engage in
political activity or could be fired
i. Say that violates first amendment rights > Ask for declaratory
judgment
ii. Complaint says “we want to engage in political activity” but
nothing more
iii. Court says hypothetical activity is not enough – The facts are not
concrete
F. Injunction Examples
1. Judge can apply an injunction, using court of equity rules
a. To get into a court of equity:
i. No adequate legal remedy
ii. Good conscience
iii. Ease of enforcement
2. Types of injunctions
a. Provisional remedies – Before the case goes to trial, so neither party can
get an advantage over the other > Freeze the action
i. Temporary Restraining Order
1. Purpose is NOT to give a remedy before trial, it is to freeze
the action/maintain the status quo between the parties >
Show the judge via the facts
2. Requirements:
a. Must show irreparable harm
b. Then, file a bond
i. In the even that your TRO was permitted in
error and caused damage to the D
ii. To protect the D from wrongful issuance of
a TRO
c. Don’t have to give notice to D because emergency
situation, but have to try
d. Need pending action
i. Lasts 14 days
ii. If good cause, can last another 14 days
ii. Preliminary Injunction
1. More permanent solution after the TRO runs
2. Requirements:
a. Must convince judge by witnesses that there is a
high likelihood you will win if it goes to trial
b. Have to show that if judge does not issue, there
will be irreparable harm to P (more than $)
c. Must balance P’s harm vs. D’s harm
d. Consider the public interest
e. Must give notice to D during 14 days of the TRO
b. Permanent Injunction
3. Scenarios to Seek Injunction
a. Trees w/ disease, city going to spray with insecticide > Mother wants to
stop this for fear it causes cancer
i. She files a summons and complaint > Pending action
ii. At the same time, files a TRO to order opponent to do something
or not do something
1. Prohibitory injunction – D ordered NOT to do something
by judge, easy to enforce
2. Mandatory injunction – D ordered to do something
iii. Will ask for permanent injunction to not spray insecticide
1. Only adequate remedy when cancer is on the line
 2. If judge doesn’t give immediate remedy, will cause
permanent damage
a. Temporary restraining order because need it
immediately
i. Only lasts 14 days > During that time, serve
D and ask for preliminary injunction while
await trial
ii. Once get preliminary injunction > No spray
until trial

b. Atlantis Community for the Disabled

i. RTD buses without devices for disabled ready to go into rotation
ii. Atlantis Group requested TRO to stop RTS from using those buses
until retrofitted with devices
iii. Preliminary Injunction
1. Irreparable harm
a. The disabled community can’t ride the buses either
way > Not in rotation if being retrofitted
2. P’s harm vs. D’s harm
a. P’s harm (none really) > D’s harm (loss of money)
3. Public interest
a. No buses running!
i. Not granted