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Civil Procedure I
Rutgers University, Newark School of Law
Henderson, Taja-Nia

Civil Procedure Henderson Spring 2017


Order of filings

Order of events (if and when the take place):


12(b) motions


Motions for voluntary or involuntary dismissal

Rule 16 scheduling conference and order


Motions to Amend

Settlement Discussion

Motions for Summary Judgment

Rule 16 Pre-Trial Conference


Motions for Directed Verdict/Judgment as a matter of law

Motions for New Trial


Motions to Vacate Judgment

Execution of Judgment

Types of Courts – Local, State, Federal, Tribal

Types of Relief – Monetary (legal), Injunctive (Equitable), Declaratory

Champerty – Parties that conspire to file a lawsuit and then divide the award. Avoid this by characterizing fee sharing as a loan.

Habeas Corpus – A writ to bring before a court to either release a person or to show cause as to why they must continue to be detained.

Cognizable – Whether a particular claim is something for which relief can be granted under the law.

Notice Pleading – just give enough information to give notice to the defendant and allow him to reply. Standard in Dioguardi, and overturned in Twombly.

Nonjusticiable – cases where one branch of the government is trying to interfere with another branch. These are no gos. Only congress can create federal courts.

Res Judicata – once it’s done it’s done. The civil version of double jeopardy. Collateral estoppel is the other version of it (once someone’s determined to be at fault and multiple defendants bring suits for the same issue).

Cause of Action – What occurred that entitles the pleader to relief.

Elements of a Claim – Factors that determine if a claim exists.

Alternative Dispute Resolution (ADR) – When a lawyer or party seeks other ways to mediate the matter before a complaint is filed.

Subject matter jurisdiction – What court has the authority to hear the case (trial court, federal versus state, etc.) and where it is best to hold it given federal and state laws. Subject matter jurisdiction goes by authority.

Concurrent subject matter jurisdiction – Means you can have it in state or federal court.

Exclusive subject matter jurisdiction – Granted by congress and means that only federal courts can hear that particular issue.

Joinder – When you link two or more causes of action and/or defendants in one complaint.

Joinder of parties – When you link two defendants.

Article III of the US Constitution – Describes what cases the federal courts may hear.

Limited Subject Matter Jurisdiction – Another word for federal jurisdiction – Title 28 in 1330 section of the US Code.

Venue – The specific court that will hear the litigation. This is decided based on the rules of that state or the federal rules. In state it’s commonly the county where the action took place.

Long arm statute – a statute that tells you if a resident of another state can be sued in the present one for a claim that occurred in this state.

Statute of limitations – Each state has its own rules for how complaints must be drafted and the federal rules (1 – 11) say how it must be done in federal court.

Interlocutory appeal – An appeal of an order issued during the pendency of a proceeding before it is fully resolved at the trial level.

Res judicata – (a matter adjudged) means that a case has already been fully adjudicated and cannot be brought a second time – even if the plaintiff wants to do another claim on the same issue (claim preclusion).

Issue preclusion – If you reopen a case due to noncompliance with the settlement, the defendant cannot reopen the issue of whether the claim was valid in the first place. This is often also called res judicata.

Prima Facie case – “At the start” – either an enumeration of the elements of the claim or a brief summary of the evidence as to these elements.

Tolling agreements – When the defendant agrees to stop the run time of the statute of limitations pending settlement.

Discovery – Depositions – rules 27 -32, interrogatories – rule 33, requests for documents – rule 34, physical and mental examinations – rule 35, and requests for admissions – rule 36. The permissible scope for all of these discovery techniques is rule 26.

Hearsay – According to Rule 801(c) is “a statement, other than one made by the declarant [the person who makes a statement] at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay can be oral or written and is when a person is giving information that they got from a third party.

Even though normally, hearsay is inadmissible as direct evidence, sometimes it’s admissible as evidence such as in contract cases where the wording of contracts is important. So A can say she saw B tell C she would pay $500 as evidence as to the terms of the contract. This is considered a non-hearsay purpose, and it only applies in limited circumstances.

The admissions exception (FRE 801(d)(2)) – something that would otherwise be hearsay will be admitted as evidence against an opponent as long a it’s relevant (such as in a PI case if there as a car accident and

ime of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

7th Amendment: Reserves the right to a jury in certain civil cases – it’s not guaranteed. It recognizes those cases that were recognized in 1791 (requires a historical check on this). Equitable suits don’t get jury trials (declaratory or injunctive relief). Some statutes, however, allow for jury trials in equitable cases. To determine if a matter is worthy of a jury trial, two prong test:

Consider the nature of the right (legal/equitable)
Nature of remedy (entirely about money)
Note that there can be a jury trial for just one element of a cause of action if that part is monetary damages.

There is no questioning of jurors as to what happens during deliberation EXCEPT in cases where there is “blatant racial discrimination.”

Batson v. Kentucky (page 518) states that if the defense makes a prima facie case that the prosecution is removing jurors based on race, the prosecution must then prove why its challenges are race neutral. This protection was later expanded to civil cases.


In civil cases, the plaintiff can request a jury within 14 days. If it doesn’t, then that right is waived.

The three part Batson Test:

First, the party opposing the strike must show that circumstances surrounding a particular strike permit an inference that the peremptory challenge was race-based. For instance, a party may satisfy the first part of the test by proving that the opposing party excluded all members of a cognizable racial group.

Second, the burden shifts to the proponent of the challenge to provide a race-neutral reason for exercising the strike. If the prosecution satisfies this burden of production,

third, it is then incumbent upon the party opposing the strike to prove to the court that use of the strike was motivated by purposeful discrimination.