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Civil Procedure I - Outline 2
By: SunsetSailor Date: February 17, 2011, 9:23 pm
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Civil Procedure I
Where can suit be filed?
I. Subject Matter Jurisdiction of Federal Courts – Limited
Jurisdiction
a. Limited by statute AND
i. Define the actual scope of jurisdiction
b. Article III of the Constitution
i. Section 1 – created the Supreme Court; permission to
establish lower federal courts
ii. Section 2 - defines permissible scope of federal judicial
power, listing all those areas in which federal subject-matter
jurisdiction may be asserted
c. Extended in special circumstances
i. Supplemental jurisdiction (state and federal claims in one
suit)
ii. Removal (state to federal court) - ’s option
II. Federal Question
a. Case must “arise under” the Constitution or some other aspect
of federal law and that this fact appear on the face of a
well-pleaded complaint
b. “Well pleaded” complaint
i. Must be demonstrated at the outset by party seeking to invoke
FQ
1. If a substantial federal issue is not raised as a legitimate
part of ’s own claim for relief, there is no FQ
jurisdiction under the statute
ii. Cannot be conferred by consent of the parties; absence
cannot be waived
iii. Issues that  raises in the answers or issues
relating to defense that  anticipates, are irrelevant
for jurisdictional purposes (Louisville & Nashville Railroad v.
Mottley)
1. If defect exists, it may be raised at ANY time, even by the
court without prompting – case will be dismissed
c. “Arise under”
d. Need to determine whether FQ jurisdiction exists either
statute or exclusive area
i. Ask – does the relation of fed law to case such that it may
be said to be one “arising under” that law (Article III, Section
2)
ii. Statute
iii. Exclusive areas (listed below)
iv. Constitutional issues
v. U.S. treaties
e. §1331 – The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States
f. Exclusive to Federal Courts
i. Patent and trademark - §1338
ii. U.S. Postal system - §1339
iii. Federal securities - §1335
iv. Maritime law - §1333
v. Bankruptcy - §1334
vi. Anti-trust - §1337
vii. IRS - §1340
g. Exception – domestic relation and probate cases
III. Diversity
a. Look at citizenship at the time when complaint is filed
(later changes in domicile do not matter)
b. ALL parties on ( side need to have different citizenship than
ALL parties on  side
c. Two basic requirements
i. Domiciled within a state
1. Domicile – residence AND intent to stay for indefinite period
2. Have only one domicile at a time
3. Domicile once established continues unless and until a new
one is acquired
4. Factors considered:
a. Current residence
b. Voting or automobile registration
c. Location of personal or real property
d. Location of bank accounts
e. Place of employment
f. Membership in unions, churches, and other associations
g. Participation in civic affairs
h. Personal declaration of domicile
ii. U.S. citizen
d. Representatives
i. Deemed to be a citizen only of the same state as the
decedent, infant or incompetent
e. §1332 – amount in controversy is >$75K AND controversy is
between:
i. 1332a1 – citizens of different states
ii. 1332a2 – citizens of a state, and citizens and subjects of a
foreign state
iii. 1332a3 – citizens of different states and in which foreign
states or citizens or subjects thereof are additional parties
f. Corporations - §1332c
i. Citizenship – has dual
1. State of incorporation
2. Principal place of business
a. Muscle test
i. Major production or service activities = location of major
corporate assets
b. Nerve center test
i. Where corporate policy is made
ii. Executive and administrative functions
c. Activities test
i. Hybrid of nerve and muscle tests
ii. Central location of manufacturing or services controls
iii. Exception – when evenly divided, look to corporate HQ
ii. Limited partnerships
1. Not juridical citizens as are corporations
2. Citizenship of ALL partners must be considered
g. Amount in controversy - > $75K
i. Exclusive of interests and costs
ii. If exactly $75K or less, no jurisdiction
iii. Sum claimed by  controls - must appear to a “legal
certainty” that the claim is really for less
iv. If  recovers less, it does not affect validity of
judgment
v. Aggregation of claims
1. Single 
a. single  w/ 1 claim > $75k may add other unrelated
claims < $75k against the same Δ
b. single  may add claims against a single Δ to >
$75k
c. for a Π to bring in another Δ, claims against that
Δ must > $75k
2. Multiple s
a. 2 s v. 1  - each  is <$75K,
aggregation not permitted if claims are “separate and distinct”
b. 1 Π meets amount others may join, "supplemental
jurisdiction"
c. no single Π meets amount - not allowed (unless Πs
interest is undivided)
d. class action: traditionally, every Π had to satisfy
amount; modern approach - only the named class members
vi. Counterclaims: (by Δ)
1. Compulsory: arising out of same transaction does not need to
meet the amount requirement.
2. Permissive: arising out of an unrelated transaction must
have an independent jurisdictional basis, thus must meet the
amount.
vii. Removal from state to Fed: (by Δ only!) (Π claim
< $75k & Δ's > $75)
1. if Permissive counterclaim Δ may not remove.
2. if Compulsory counterclaim, courts are split….
IV. Supplemental Jurisdiction - §1367
a. §1367 – Supplemental Jurisdiction
i. 1367a - Federal courts have the power to exercise
supplemental jurisdiction “over all claims that are so related
to claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case
or controversy under Article III of USC.
ii. 1367b - Not permitted over claims by  against any
jurisdictional made a party through joinder – incompatible with
complete diversity
iii. 1367c - Decline supplemental jurisdiction under certain
circumstances
b. Two-part inquiry
i. Do the courts have the power to hear the case?
1. Article III, Section 2
2. §1367
3. Should they exercise discretion to hear the case?
c. Pendant jurisdiction (Gibbs)
i. FQ claim and state claim
ii. For claims in ’s original complaint
iii. If arise from same nucleus of operative fact; closely
related
d. Ancillary jurisdiction
i. FQ claim and diversity jurisdiction
ii. claims arising after ’s claims are filed
iii. claims asserted by  if related to ’s claims
iv. If arise from same nucleus of operative fact; closely
related
e. FQ and diversity – Court and Congress narrow jurisdiction
f. Policy reasons
i. Avoids duplicative state and federal cases
ii. Gives parties the right to have the full case in federal
court
iii. Avoids waste
iv. Judicial economy
v. Fairness to litigants
vi. Convenience
V. Removal – §1441
a.  forces  to litigate in federal court instead
of state court originally selected
b. protects  against “local bias” of state court – may
be advantage to 
c. 1441a & b – Which cases can  remove
i. Removable only if it originally could have been brought in a
federal court
1. Look at FQ, diversity and amt. in controversy
ii. Only from state  federal; NOT the reverse
iii. Limited to civil actions
iv. Limited to s
d. 1441b – case can be removed on basis of diversity only if
none of the s is a citizen of the forum state
i. If FQ case -  can remove w/out regard to citizenship
of the parties
e. 1441c – allows removal of entire action whenever a separate
and independent action is joined
i. court can remand to state “all matters in which state law
predominates”
ii. Policy
1. Promotes judicial economy; no need for parallel state
litigation
2.  would be forced to defend two separate actions if
the district court could not hear entire lawsuit
f. 1441e – can hear a case even though state court was improper
venue (i.e. filing a patent case in state court) – can still be
“removed” to federal court
g. 1442 – 1445 – special removal provisions
h. 1446 – procedure for removal
i.  files a notice of removal (usually within 30 days
after receiving complaint) – sets out facts to justify
ii. Give written notice to  and file a copy of notice
with the state court
iii.  may waive right to remove by taking a defensive
action in the state court before petition for removal
1. filing a counterclaim
2. engaging in discovery
i. 1447 – procedures after removal – motion to remand
VI. Personal Juris
a. Within long arm statute?
b. Does constitution authorize personal juris?
i. In personam
1. personally served with process within the court’s territory
(i.e. within the state)
ii. In rem
1. jurisdiction over ’s property
iii. Quasi in rem
1. Actions brought against known persons
2. Attach property to a suit to get to .
3. Substitute for in personam – property, not person in the
forum state
4. If  wins, property can be sold and proceeds awarded
to 
5. No concern with contacts w/ forum state, only presence or
absence within the state
c. History – Pennoyer to International Shoe and progeny
i. Pennoyer – constitutionality is based on state territorial
rules and concepts of claims
6. If personal jurisdiction is valid – entitled to “full faith
and credit” – Article IV, Section 1
7. Jurisdiction
a. In personam – over person within state borders
i. Length of stay doesn’t matter
b. In rem – over property within state borders
c. Consent
iv. International Shoe
1. Changed in personam jurisdiction
2. Minimum contacts
a. Logic -  enjoys benefits of conducting business there
also has an obligation to respond to suit there
b. Depends on “quality and nature of the activity in relation to
fair and orderly administration of the laws.”
i. Two questions
1. Is activity in the forum continuous and systematic?
2. Is the cause of action related to that activity?
3. Fair play
4. Substantial justice
5. Contacts between , state, cause of action – general
and specific
6. Due Process – two-step analysis:
a. Court determines if  has minimum contacts with the
forum, IF YES
b. Does the assertion of jurisdiction comport with “traditional
notions of fair play and substantial justice.”
v. World-Wide Volkswagen
1. foreseeability alone, without “purposeful availment” is not
enough for jurisdiction. ’s conduct and connection with
the forum state are such that he should reasonably anticipate
being haled into court there
2. ’s conduct remains the central concern
vi. Asahi Metal
1. “Stream of commerce”
2. Two step analysis
a. Sufficiency of ’s contacts
b. Does the assertion of jurisdiction comport with “traditional
notions of fair play and substantial justice.”
3. O’Connor – manufacturer’s contacts be “more purposefully
directed at the forum State than the mere acts of placing a
product in the stream of commerce.”
4. Brennan – no requirement for any “additional conduct” beyond
the placement of a product into “the regular and anticipated
flow of products from manf. to dist. to retail sale.”
vii. Shaffer
1. All questions of jurisdiction subject to International Shoe
and its progeny
2. Use for in personam, in rem and quasi in rem
viii. Burnham
1. Jurisdiction based on “physical presence alone” does not
violate due process, and  need not be subjected to the
International Shoe minimum contacts analysis
2. Minimum contacts was developed to serve as a substitute for
physical presence
ix. How to attack defect in personal jurisdiction
1. Direct attack
a. 12(b)(2)
b. Special appearance
2. Collateral attack
a. General jurisdiction
ii. Substantial and continuous contacts – even if activities are
unrelated to action
iii. Corporations
1. Incorporated
2. Principal place of business
iv. Individuals
1. Domicile
b. Specific jurisdiction
v. Sporadic contacts with forum – action arises out of those
contacts
vi. 3-step test
1. Are there minimum contacts? - , forum, COA AND
“purposeful availment”
a. Did ( purposefully direct/target state
Stream of commerce
O’Connor and Brennan
Awareness
Awareness plus
b. Does jurisdiction offend fair play and substantial justice?
c. Is personable jurisdiction reasonable?
Reasonableness factors
1. Burden on (
2. Interests of the forum state
3. (’s interest
4. Efficient resolutions
5. Substantive social policies
2. Interaction of two parts of test
a. Asahi
b. Burger King
Brennan – two part min contacts test
vii. Analysis
1. Most of the time minimum contacts are enough
2. Some time – 5 factors outweigh minimum contacts
d. Long-arm statutes
i. Three factors to use long-arm statute
1. statutory language must apply to the cause of action alleged
2. judicially developed standards that have emerged under the
statute must be satisfied
3. consistent with federal, as well as any applicable state and
constitutional standards
a. Constitutional inquiry is most important
e. How challenge personal juris?
i. 12(b)(2), (g), (h)
ii. Special appearance
1. Rule 12(b)(4) – Insufficiency of process (summons itself is
not accurate)
2. Rule 12(b)(5) - Insufficiency of service of process (service
is not proper)
3. (4) and (5) are waived if they are not answered immediately
iii. Collateral attack
f. Consent
i. By waiver
1. Failing to file 12(b)(2)
2. failing to give documents
3. Making a K
4. If have bargaining power, say no
ii. By contract – forum selection clause
1. Valid even if a contract of adhesion
2. Airline, cruise, etc…
3. Argue don’t have notice of provision, argue it on K, coercion
(unconscionable)
VII. Notice - Within statute or Rule 4?
a. Constitutional obligation to provide  with proper
notice and the opportunity to be heard is an additional aspect
of the due process limitation on a court’s ability to exercise
jurisdiction
b.  has been provided notice when he has received a
process
i. Process
1. Summons, and if applicable procedural rules apply
2. Copy of complaint
ii. 4c – Service with Complaint; by Whom Made
1. 4c1 – summons served together with a copy of the complaint; (
is responsible for service within the time allowed by 4m
2. 4c2 – service may be made by anyone who is not a party and is
at least 18
iii. 4d – Waiver of Service; Duty to Save Costs; Request to
Waive
1. 4d1 – waiver of service does not waive objection to service
2. 4d2 – To avoid costs,  may notify  of
commencement of action and request  to waive service –
“carrot and stick”
a. In writing and addressed directly to 
b. Sent through 1st class mail
3. 4d3 –  returns waiver, does not have to reply to
complaint for 60 days (90 if  outside U.S.)
4. 4d4 – filing date of waiver, treated as filing date of
summons and complaint – no proof of service req.
5. 4d5 –  must pay costs of summons if he fails to waive
iv. 4e – Service upon Individuals in U.S.
1. 4e1 - Use state law (i.e. if mail allowed, use mail)
2. 4e2 - Hand deliver to anyone at (’s dwelling that is of
suitable age and discretion – can serve agent of 
v. 4f – Service in a Foreign Country
1. 4f2 – use law of country in which service is taking place
vi. 4k - Territorial Limits of Effective Service
1. 4k1 – personal jurisdiction when authorized by a federal
statute or when consistent with the long-arm statute of the
state in which the district court is located
2. 4k1A – allows a federal court to adopt state law bases of
jurisdiction
3. 4k1B – “bulge” provision – permits service on certain persons
in multiparty actions within 100 miles from the place from which
the summons issues
4. 4k2 - “long arm statute” for federal courts
a. Used for s who have min. contacts with U.S., but not
subject to personal jurisdiction on the basis of contacts with
any individual state
b. Territorial limit for Federal Court  entire U.S.
c. Rests on the Fifth, rather than the Fourteenth Amendment
vii. 4m – Time Limit for Service
1. Service must be made within 120 days of filing complaint
2. Court may extend time if  “show good cause for the
failure”
3. Does not apply to service in a foreign country
4. If no extension given, court will dismiss the action without
prejudice
c. Constitutional under Mullane?
i. International Shoe of notice
ii. Do whatever is reasonable under all the circumstances, to
contact  so they may appear in court and be heard
iii. “Process which is a mere gesture is not due process”
iv. Broad notice is not enough
1. Many party’s addresses are known
2. Have been sent income payments in the past
3. Not difficult to serve notice
4. Not very expensive
v. Mail is adequate
1. All we need to do is hit almost everyone
VIII. Venue
a. In General
i. Purely statutory
ii. 1391 or specific statute (ex. 1441(a))
iii. Vary from jurisdiction to jurisdiction
iv. Used to identify a convenient forum for the resolution of
disputes
b. Factors considered
i. Functional
1. Where the subject matter of the action is located
2. Where the cause of action arose
3. Where ( resides
4. Where seat of government is located (suits involving gov.)
ii. Nonfunctional
1. Where some fact connected with the case occurred
2. Where  may be found
3. Where  may be served with process
4. In county designated in ’s complaint
5. In any county at all
c. Venue Generally - §1391
1. 1391(a) – A civil action wherein jurisdiction is founded only
on diversity of citizenship may, except as otherwise provided by
law, be brought only in the judicial district where all
plaintiffs or all defendants reside, or in which the claim rose
2. 1391(b) – action where jurisdiction is not founded solely on
diversity may be brought in:
a. judicial district where  resides
b. judicial district in which a substantial part of property
subject to the action is located
c. judicial district where any  may be found, if there
is no other district where action may be brought
3. 1391(c) – A corporation may be sued in any judicial district
in which it is incorporated or licensed to do business or is
doing business, and such judicial district shall be regarded as
the residence of such corporation for venue purposes
4. 1391d – an alien may be sued in any district
d. How challenge?
i. 12(b)(3) – Decline jurisdiction
e. If venue appropriate, sometimes can dismiss – forum non
conveniens
i. Only used if venue is appropriate in the first place
ii. Can never apply if there is absence of jurisdiction or
mistake of venue
iii. Must have an alternative forum in which suit can be
prosecuted
f. If venue appropriate, when transfer – 1404(a)
i. For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to
any district or division where it might have been brought (all 3
factors are met – SM juris, personal juris and venue)
ii. Change of courtroom, NOT a change of law
iii. 1404(a) - We don’t care about 1391 (is change of venue
appropriate?) – already know that venue is appropriate for each
party; we know because it was already removed
iv. Only transfer to another federal court, NOT a state court
g. If venue is not appropriate, can dismiss – 12(b)(3), 1406(a)
i. 12(b)(3) – improper venue
ii. 1406(a) – filed in wrong district court; can dismiss Forum
non conveniens
h. If venue or personal juris is not appropriate, can transfer –
1406(a)
i. The district court in which is filed a case laying venue in
the wrong 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.
ii. Change of law AND change of courtroom
i. If personal jurisdiction wrong, can dismiss 12(b)(2)
i. lack of jurisdiction over the party
j. If personal jurisdiction wrong, sometimes can transfer –
1406(a), 1631
i. 1631 – Transfer to cure want of jurisdiction
ii. Court will transfer case to right court and proceed as
though it was filed there originally. Date of filing shall be
the date case was filed at the wrong court.
iii. Public interest factors
iv. Private interest factors
k. Applicable law
i. If all 3 factors apply (SM juris, Personal juris and venue)
law stays with the original venue regardless of what courtroom
the case is transferred to.
ii. If not, the law of the court where the case is heard is the
controlling law.
l. 1406(a)
i. The district court of a district in which a case is filed 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.
m. 1407 – Multi-district Litigation
i. Authorizes temporary transfer of two or more civil actions
“involving one or more common questions of fact” that are
pending in different districts, to a single district “for
coordinated or consolidated pretrial proceedings.”
ii. Transfer will be ordered only if three conditions are
satisfied:
1. Common questions of fact
2. Transfer will serve the “convenience of parties and
witnesses”, AND
3. Transfer will promote the just and efficient conduct of the
actions to be consolidated
IX. Erie – in a diversity case, does federal or state law
govern?
a. Is the source of the federal law or a federal rule or federal
statute?
b. Yes – use test in Hanna
c. If federal rule ask:
i. Is FRCP broad enough to conflict with state law?
1. Yes – go on
2. No – use federal rule
ii. Is the REA constitutional? Supreme Court has said yes
iii. Does rule comply with REA requirement that rule govern
“practice and procedure”, not substance?
1. Test whether the rule really regulates procedure – the
judicial process for enforcing rights and duties
2. Procedure if “rationally capable of classification as either”
a. Committee, Sup. Ct. and Congress all passed rules before
adopted
iv. Is the FRCP constitutional?
d. If federal stat, ask:
i. Is the statute broad enough to cause a conflict with state
law?
ii. Is the statute constitutional
1. Art III and Art I permit Congress to create procedure for fed
courts
2. Can regulate matters, which thru falling w/in the uncertain
area btw. Substance and procedure are “rationally capable of
classification as either”
e. Is the source of the federal law common law or custom, rather
than fed rule or statute?
f. Yes – Dicta in Hanna (modified “outcome determinative” test
AND/OR Byrd balancing test
i. Outcome determinative test (modified Hanna)
1. Would the federal practice encourage forum shopping?
2. Would the federal practice result in inequitable
administration of justice?
3. If the answer to both is “no” – follow federal law
4. If the answer to either OR both is “yes” – follow state law
5. Sup. Ct has never told us which test to use, let’s look at
the Byrd Balancing
ii. Byrd balancing test
1. Is the state law “bound up with rights and obligations”
(substantive law)?
2. Yes – state law controls
3. No – it is “form or mode” – court must balance 3 factors
a. Is the application of the fed rule outcome determinative?
i. If yes, we will most likely use state law – unless there are
strong countervailing federal interests
b. What is the strength of the federal interests?
i. Cost prohibitive
ii. 7th Amendment (right to a jury trial)
c. What is the strength of the state interests?
i. Efficiency
ii. Could be outcome determinative
g. Erie
i. There is no federal common law
ii. Apply
1. state - substantive law
2. federal – procedural law
iii. Same year FRCP were introduced
h. York
i. Hard to distinguish between substantive and procedural
ii. Look to policy of Erie – federal law should not be applied
when it would change the outcome
iii. Very protective of state law
i. Byrd
i. State law doesn’t always control
ii.
j. Hanna
i. Federal rules and statutes not governed by Erie
X. Pleading
a. Functions
i. Permit the elimination from consideration of contentions that
have no legal significance
1.  sets forth an alleged claim for which the law
provides no redress, the matter should be disposed of
immediately
ii. Guide the parties and the court in the conduct of the cases
1. Settle what facts the parties agree occurred as it is to
determine what matters are in controversy
b. Types
i. Complaint
1.  sets forth allegations and a prayer for relief
ii. Answer
1.  may deny allegations in the complaint and may set
forth affirmative defenses and counteractions
iii. Reply
1. Rarely used
c. Requirements
i. Party must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
ii. Broad rules of discovery allow additional pertinent facts to
be given later
iii. Court and opposing party need to understand – that is all
d. Special Rules
i. Fraud claims – “disfavored action”
1. Require very specific facts to support allegation (when,
where, etc..)
e. Clarification
i. Rule 12e – clarification of a pleading that is so uncertain
that a proper response cannot be made
ii. Not to be used as a substitute for discovery
f. Truthfulness in Pleading
i. Attorney signature requirement
1. Ensure truthful pleading and deter frivolous litigation
2. Attorney can be sanctioned
ii. Verification
XI. Complaint
a. Commences the action. The date of filing of the filing of
the filing of the complaint is what counts for statute of
limitations purposes.
b. Rule 8a -  must make a “short and plain statement” of
the claim sowing that she is entitled to relief
c. Rule 10 - Format
i. Caption, Title of Action, Names of the parties
ii. Jurisdiction allegation
1. Must show that this court has jurisdiction over the parties
iii. Body of allegations
1. Cause of action (statement of the claim)
2. Must set forth sufficient information to allege a right to
relief
3. Party bears the responsibility for pleading those matters
upon which the party must produce proof at trial
iv. Prayer
1. Demand for relief
d. Rule 8 - Notice pleading
i. What do we do when we answer? Rule 8 tells us to do two
things when we answer – 8b, 8c
ii. 8b – Defenses; Form of Denials
1. Ways to admit or deny
a. Don’t have knowledge sufficient to admit or deny
i. Serves as a denial
b. If you think a part is true, you have to admit it
iii. 8c – Affirmative Defenses
1. Duress, estoppel, etc
iv. 8d – Effect of Failure to Deny
1. Those which are not admitted or denied will be considered
answered in the affirmative
v. Rule10 – Form of Pleadings
1. applies to answer as well
vi. Rule 12g – you may make a pre-answer motion and if you do
and leave something out it is waived
vii. If they filed a 12b motion, then you can’t put those
answers unless they are protected under 12h2
1. state a claim which relief can be granted
2. failure to join a party
viii. Rule 8e – Pleading in the alternative
1. A party may set forth two or more statements or defense
alternately
a. Example – In count 1,  claims that work done for
 was done under a valid written contract. In count 2,
 claims that if the K was not valid,  rendered
value to  and can recover as much as it’s worth.
e. Rule 9b – Fraud
i. Requirements
1. Detailed statements that  contends are fraudulent
2. Identify the speaker
3. State where and when the statements were made
4. Explain why statements are fraudulent
ii. Why strict hurdles?
1. fraud is ugly, s have to take this seriously
2. saving s from these nasty allegations
iii. Very difficult to prove fraud
f. Disfavored claims – FRCP 9 and civil rights and 12b6
g. Rule 11
XII. Responding to a Complaint
a. Answer – 8b, c, d
b. Motion to dismiss
c. Don’t do anything
XIII. Pre-Answer Motion
a.  draws it up and serve it on ’s counsel
b. 20 days to file (Rule 12a1) after being served, or service
has been waived you 60 days (or 90)
c. 12b Motions
i. 12b1 – lack of juris over subject matter
ii. 12b2 – lack of juris over the person
iii. 12b3 – improper venue
iv. 12b4 – insufficiency of process
v. 12b5 – insufficiency of service of process
vi. 12b6 – failure to state a claim upon which relief may be
granted
1. generally made before  files his answer. After
 has filed an answer, and the pleadings are complete,
 can accomplish the same result by making a Rule 12c
motion “judgment on the pleadings”
vii. 12b7 – failure to join necessary party under Rule 19
d. 12e – more definite statement
e. 12f – motion to strike
i. derogatory comments – ex. “Car is a death trap”
XIV. Amendments – Rule 15
a. Liberal policy - you can amend as a matter of course 
anytime before the responsive pleading is filed, if no answer if
required then the party may amend within 20 days thereafter
b. 15b
i. can bring things up at trial that are not within the
pleadings
ii. so that the pleadings conform to the issues presented at
trial
iii. if objections are raised and the other party can’t show
prejudice or weren’t given notice then those amendments are
freely allowed
c. 15c2
i. relates back means arose out of the conduct
XV. Rule 11
a. 11a – at least one attorney has to sign every pleading,
written motion and any other paper
i. If not corrected promptly, will be stricken
b. Why this requirement?
i. You stand behind its contents, and if there are certain
conducts then I am liable
ii. What type of problems – 11b
1. Harass
2. Increase cost of litigation
3. Any improper purpose
4. If you have a claim, defense or position that is supported by
law, or that existing law should be reversed or modified, etc..
5. That you have support, or after discovery you will have
evidence to support your claims – got to point something out
that shows you likely have support
You can serve your motion, but you have to wait 21 day “safe
harbor” to file it. You must first file and ask the parties to
change their ways.
XVI. Answer
a. Purpose
i. Determine which allegations in the complaint a 
intends to contest at trial
ii. Permit  to raise additional matters as defenses or
claims
iii. Raise technical defenses
1. lack of jurisdiction
2. misjoinder, lack of joinder
3. validity of service of process
iv. Must be filed in a timely manner
b. Admissions
i.  will either admit allegations by
1. stating in the answer they are true, OR
2. failing to deny them
ii. Why admit?
1. good faith
2. immoral but not illegal conduct – don’t want to bring up in
court
c. Denials
i. General
1.  denies each and every allegation of ’s
complaint
ii. Specific
1. Denying only those allegations that  intends to
contest
iii. Knowledge or information
1.  may make a denial of knowledge or information, by
which he says that he does not have enough knowledge or
information sufficient
iv. Must use proper form – or may be admitted
d. Affirmative Defenses – Rule 8c
i.  can present additional facts to establish a defense
XVII. Reply and Subsequent Pleadings
a. Reply
i. Not used to reply to affirmative defenses set forth in
’s answer – do that at trial
XVIII. Challenges to Pleadings
a. Motion to dismiss for failure to state a claim
b. Motion to strike an insufficient answer
c. Failure to state a claim is not fatal – pleader can in good
faith alter the pleading to remedy the defect
XIX. Time table
a. Complaint
i. Service must usually occur within 120 days – Rule 4m
b. Answer
i. Must be served within 20 days after the service of the
complaint, except that
1. Rule 12 motion
2. Waiver of formal service (Rule 12a1B)
Remedies
I. Substitutionary
a. Used to give a reasonable substitute for what a person wants
b. Usually money
c. What can we give?
II. Hatahley Case
a. Court laid out some damages in monetary terms
b. Replacement Cost
i. Look to market value  so not would make this person
whole again, but what would make average whole 
ii. Factor in the cost of training animals
iii. Look to the reasonable prudent, and how long he/she would
bought new horses…. has high burdens for proving damages
iv. You need to show damages to a reasonable degree of certainty
III. Punitive Damages
a. These are used to punish  for extreme wrongdoing
b. It is punishment because  did wrong and we want to
deter them and others like them
IV. What do we tell a jury?
a. We tell them  has done wrong and we want to deter
them and others like them
b. What is the jury to do with those instructions?
i. In most jurisdictions look to net worth (what will it take
to punish them)
ii. An award will violate the Due Process clause if it is
“grossly excessive.”
V. Due Process Problem
a. If the court can’t review the jury award the jury can award
more than necessary, and even arbitrary amounts, and without
judicial review there is a violation.
b. How do we tell if something violates the Due Process Clause?
i. The amount is grossly excessive (substantive issue)
ii. No review is allowed (procedural due process problem)
1. We can tell this by looking to the Due Process Clause which
provides certain procedures, which we have always had at common
law, which is judicial review. We have said that with respect
to punitive damages on key check is review.
iii. If we don’t allow a judicial review, it doesn’t mean that
it is unconstitutional, just an indication that it is
VI. What about the amount?
a. Look to BMW v. Gore
b.  is entitled to notice that his conduct is wrong and
the severity of the punishment to be imposed
VII. Three Factors
a. Degree of reprehensibility
b. Disparity between the harm or potential harm suffered by one
and the punitive damages award
c. Difference between this remedy and the civil penalties
authorized or imposed in similar cases
VIII. Specific Remedies
a. In some cases we can give what was specifically lost
b.  has to show that money really isn’t good enough
c. Sigma Chemical v. Harris
i. Injunctive relief – the standard is that ( is being
threatened by some injury for which no legal remedy (and
balancing of the hardships…and who is the hardship going to be
worse for? – actually part of one analysis).
IX. Permanent Injunction
a. The key thing about this is that it happens at the END of the
trial (we already know at this point ( is entitled to relief)
i. PERMANENT INJUNCTION
1.  wins on the merits
2. balance hardships on  and 
3.  must have no adequate legal remedies
X. Test for Permanent Injunction
a.  will suffer irreparable harm
b.  will probably win on the merits
c. Balance equities
d. Granting is in public interest
XI. Alternative Test
a.  will suffer irreparable harm
b. Either
i. Possible success and possible irreparable injury
ii. Serious questions on merits and balance or hardships sharply
in ’s favor
iii. Granting is in public interest
XII. Temporary Restraining Order
a. May be granted to  without notice if
i. It appears from affidavit/verified complaint that immediate
or irreparable injury will result before we can hear from an
adverse party, AND
ii. Attorney certifies in writing attempts to give notice
b. Issued Without Notice
i. Shall state irreparable damage and why no notice
ii. Shall expire no later than 10 days
iii. Court shall set for hearing at earliest possible time
iv. On two days notice to party who obtained TRO, adverse party
may move for dissolution
c. TRO’s and preliminary injunctions USE THE SAME TEST
i. If a court uses both tests they will use both tests for both
types, one test for both types if they only use one
XIII. Declaratory Relief
a. You can get a declaration of what the law is (the case cannot
be hypothetical)
i. Available even if  does not show irreparable damages
ii. Federal question must be in true ’s complaint
XIV. Financing the Litigation
a. American Rule
i. Each party pays his own fees
1. Enables  to sue
2. Private persons play a big role in protecting constitutional
rights
b. English Rule
i. Loser pays both parties fees’
c. Expectations to the American Rule
i. Contract for fee shifting (loser pays winner’s fees)
ii. Common law requires (malicious prosecution, courts inherent
power)
iii. If statute requires
1. Many federal statutes – mine safety; environmental, truth in
lending
2. Many such statutes are asymmetrical
a. A losing  pays a prevailing ’s attorney’s
fees
b. A losing  pays ’s fees only if ’s
claim was frivolous, unreasonable, or groundless
XV. One Way Fee Shifting
a.  pays prevailing ’s attorney fees
b.  pays prevailing ’s fees only if claim
frivolous or unreasonable
c. Encourages civil rights litigation
XVI. Rule 68 and Fee Shifting
a. An offer not accepted shall be deemed withdrawn and evidence
thereof is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is not
more favorable than the offer, the offeree must pay the cost
incurred after the making of the offer. The fact that an offer
is made but not accepted does not preclude a subsequent offer.
#Post#: 85--------------------------------------------------
Re: Civil Procedure I - Outline 2
By: Hisojas Date: April 22, 2015, 6:48 am
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We continue to fight for a better future life.
#Post#: 114--------------------------------------------------
Re: Civil Procedure I - Outline 2
By: Nathaniel Date: February 1, 2018, 1:42 am
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These are good information you should read.
#Post#: 153--------------------------------------------------
Re: Civil Procedure I - Outline 2
By: Radfrod Date: June 4, 2019, 2:47 am
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Thanks for the info Hope to have this kind of information again
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