Cartier – Civil Procedure Spring 2010 Outline
Table of Contents:
A. General Exam Tips. 3
B. Jurisdiction Introduction. 3
C. SMJ-PJ-Venue Comparisons. 3
D. Personal Jurisdiction (aka. Territorial Jurisdiction)4
E. Subject Matter Jurisdiction. 7
1. Federal Question: Article III and §1331. 7
2. Diversity Jurisdiction: §1332. 8
3. Supplemental Jurisdiction: §1367. 9
4. Removal: §1441. 10
F. Venue. 11
1. Venue – Structure of §1391. 11
2. Transfer and Choice of Law (aka. Change of Venue)11
3. Forum Non Conveniens. 12
G. ERIE.. 13
H. Relief. 15
I. Joinder Basics (Diagram)16
J. Joinder. 17
1. “Quickie” Exam Flow.. 17
2. Joinder Rules in Detail18
3. Class Actions. 22
K. Discovery. 24
1. Scope of Discovery. 24
2. Disclosures. 25
3. Experts. 25
4. Discovery Tools. 26
L. Pre-Trial Activities. 28
1. Pre-Trial Conferencing. 28
2. Giving the Judge the Boot28
3. Pre-Trial Claim Resolutions. 28
M. Trial Phase. 32
1. Right to Jury Trial32
2. Jury Selection. 33
O. Estoppel (Claim & Issue Preclusion)36
A. Res Judicata (Claim Preclusion)36
B. Collateral Estoppel (Issue Preclusion)39
C. Other Preclusion Related Rules. 41
P. Rules and Pleadings. 43
1. Federal Rules of Civil Procedure. 43
2. Federal Rules Of Appellate Procedure. 49
3. Other Rules. 50
Q. Appendix – Class Review of Jurisdiction for Midterm.. 52
R. Appendix – Test taking Tips from Delta Phi Outline. 53
§ Key: *** Barf taken from Cartier’s model exam answers **+ Barf modified slightly from Cartier’s.
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A. General Exam Tips
For each exam question, provide an introduction and state the issue of the case. This gets no points but is expected on each exam. The intent is to help clarify the issue faced and record the basic facts.
B. Jurisdiction Introduction
Personal Jurisdiction, Subject Matter Jurisdiction and Venue must all be satisfied to bring a suit in a particular forum. Each of these doctrines has a different legal source, serves a distinct purpose, and employs a different standard.
Subject Matter Jurisdiction limits are found in Art III of the Constitution, which authorizes federal jurisdiction over certain limited types of cases. State courts always have courts of general jurisdiction. SMJ is not waivable.
Personal Jurisdiction arises from due process limits in the 14th Amendment and limits the power of states to require out of state defendants to defend suits in their courts. PJ is waived if not raised.
Venue does not have a constitutional source; it is a statutory limit that imposes separate constraints on the place of trial to protect litigants from inconvenient litigation. Venue is waived if not raised.
C. SMJ-PJ-Venue Comparisons
a. For jurisdictional determination:
minimum contacts or:
citizenship based on:
( ≠ domicile)
citizenship based on:
Inc / PPB
Where subject to PJ
citizenship based on:
Perm = residence
Otherwise = anywhere
b. Collateral Attack (an attack on a judgment entered in a different proceeding)
PJ can be subject to a collateral attack (can choose to not appear in court and receive a default judgment)
SMJ is not subject to a collateral attack (need to object in person)
c. Challenging Jurisdiction
SMJ – can challenge at any time; address on exam anytime add a new claim
PJ – only challengeable at time suit is filed, otherwise is considered waived; address on exam anytime a new party is added
Venue – only challengeable at time suit is filed or removed, otherwise is considered waived.
D. Personal Jurisdiction (aka. Territorial Jurisdiction)
1. Barf of PJ – PJ is the power of a court to make a binding order against a party and is obtained by giving notice within the grasp of the state’s long-arm statute in a manner permitted by statute.***
The determination of whether each D is subject to PJ depends on 1) whether the D was properly served and, if so, 2) whether the exercise of jdx comports with traditional notions of fair play and substantial justice. ***
2. Barf of PJ-LAS – Typically one gets personal jurisdiction over an out of state defendant by giving notice within the grasp of the state’s long arm statute IF the defendant has minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. California’s long arm statute is coextensive with the limits imposed by the Constitution.
3. Barf of Notice- Modernly, a court may exercise jurisdiction over an out-of-state def
and systematic activity/ activities unrelated to lawsuit- maybe; consider pervasive presence and apply fairness factors.
Due Process Requires Pervasive Presence AND Fairness Factors:
· Pervasive Presence (only applies to corporations, not persons): General jurisdiction can be obtained over a corporation if its continuous and systematic activities are so pervasive that jurisdiction extends to even unrelated matters. *** Even without pervasive presence, jurisdiction can be sustained if the D engaged in purposeful conduct that make it foreseeable, at the time of acting, that the D could be sued in the forum state. ***
d. Continuous and systematic activity/ activities related to the lawsuit- jurisdiction never doubted
· When a D has continuous and systematic activity in the forum state and the law suit is related to these activities, jurisdiction has never been doubted. ***
5. Fairness Factors – Exercise of jurisdiction must be fair. Due process might permit an exercise of jurisdiction over a defendant without minimum contacts when compelled by:
Fairness factors: (BIPES)
1. Burden on defendant
2. Interest of the forum state in resolving the dispute
3. Plaintiff’s interest in obtaining relief (can’t get elsewhere)
4. Efficient resolution of controversies between states
5. Shared interests of the states in furthering social policies
Fairness negates PJ for:
o International cases
o Domestic relations
o General jurisdiction over corporations
6. Traditionally PJ is established by:
· Individuals – place of residence
· Corporations – place of incorporation
b. Presence in forum state at the time of service (regardless of min contacts) is a traditional basis for obtaining jurisdiction over an otherwise out-of-state D. ***
· Ever since Pennoyer v. Neff it has been permissible to obtain personal jurisdiction over an individual defendant by serving him with the summons in the state where the suit is brought.
· Shaffer v. Heitner suggested that all exercises of jurisdiction must comport with Shoe and its progeny and that assertions of jurisdiction be based on minimum contacts. Burnham upheld jurisdiction based on presence at time of service. While some justices felt a minimum contacts analysis was needed, others held that presence at time of service was enough. ***
c. Consent (ex. forum selection clause)
d. Appearance (in person or written response to the complaint)
· General – appearing on the merits of the case
· Special – appearing to contest PJ of the court; a special appearance is not a consent to jurisdiction that otherwise does not exist. ***