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Civil Procedure II
Santa Clara University School of Law
Jimenez, Philip

Order of events:
Events giving rise to the COA
P files complaint (& Commences action)
–          20 days after filing complaint = earliest time for Summary Judgment (56a1)
Pre-trial motions:
–          Def files pre-trial motions (12b motions)
–          P may amend pleading once as a matter of course (15a1A)
P’s last chance for an Amendment as a matter of course, before being served w/a responsive pleading (15a1)
D answers:
–          Lists affirmative defenses (8c)
–          ***Joins 3PD w/in 10 days of filing answer
D’s last chance for an Amendment as a matter of course, before being served w/a responsive pleading (15a1)
12c motion for judgment on the pleadings (may be filed as soon as pleadings are closed).
Pre-Discovery conference (26f). Sanctions for failure to participate in good faith under 37f.
–          Disclosures:
o   Initial disclosures mandatory/automatic w/in 14 days after pre-discovery conference (26a1c= time for disclosure; Content is covered by 26a1A-general & 26a2-Expert witnesses & 26a3A-evidence)
o   Expert testimony disclosures: Due at least 90 days before trial, or as the ct stipulates (per 26a2C, covering 26a2; w/timing exception in 26a2Cii).
o   General disclosures mandatory/automatic w/in 30 days prior to trial (per 26a3B, covering 26a3)
o   Failure to Disclose: sanctions under 37c1
–          Proactive Discovery:
o   Oral depositions (w/o leave 30a1; leave required if… 30a2)
§ Max # of depos = 10 (more OK if stipulated or court gives leave) (30a2Ai)
§ Max time for depo = 7 hours in 1 day (30d1)
§ Deposing Corporations: 30b6
§ Failure to appear at deposition: sanctions under 37d1Ai
o   Written depositions (w/o leave 31a1; leave required if… 31a2)
§ Max # of depos = 10 (more OK if stipulated or court gives leave) (30a2Ai)
§ Deposing Corporations: per 31a4, look to 30b6
§ Failure to respond to written depositions: sanctions under 37d1Ai
o   Interrogatories (33)
§ Max # = 25 (more OK if stipulated or court ordered) (33a1)
§ Interrrogatories must be answered by: the party to whom they are directed (33b1A), or by an officer/agent of the corp to whom they are directed (33b1B)
§ Failure to respond to interrogatories: sanctions under 37d1Aii
o   Producing Documents/Tangible things/access to Land (34)
§ Failure to produce/give access: sanctions under 37d1Aii
o   Physical Examinations (35) – see class notes 3-18-09, p. 1
§ Failure to submit to examination: sanctions under 37b2B (referencing 37b2Ai-vii)
o   Request for Admission (36)
§ Effect of admission under 36 (see 36b)
§ Failure to Admit: sanctions under 37c2
–          Sanctions: 37
o   Motion to Compel disclosure or discovery: 37a (allows it generally)
§ To compel Disclosure: 37a3A
·         Note: For purposes of compelling, an incomplete/evasive disclosure is treated as a failure to disclose (37a3C)
§ To compel Discovery: 37a3B
o   Sanctions If Motion to Compel is…
§ Granted: 37a5A
§ Denied: 37a5B
§ Granted in part & Denied in part: 37a5C
o   Sanctions for Failure to Disclose (i.e., if you still refuse/fail to disclose after motion to compel is granted): 37c1 (referencing 37b2Ai-vii)
o   Sanctions for Disobeying a court Discovery order: 37b2Ai-vii
Supplemental JX:
1)      Can the Fed cts get subject matter JX over the additional claim on its own? (i.e., Is there an independent basis for fed JX over the additional claim?
Yes = Automatically In Fed ct on its own merits (via 1331, 1334, etc.)
No = continue…
2)      Is this additional claim “so related” that it forms part of same case/controversy as the original claim? i.e., Would the P be expected to try both the main Fed claim & this additional state claim in one proceeding?
a.      Note: Crossclaims that meet the 13g requirements & Counterclaims that meet the 13a requirements are automatically “so related”
No = OUT (no Fed JX)
Yes = continue…
3)      Is the original claim in Fed ct under 1332? Yes ___AND
            Is this additional claim being brought by the original P? Yes ___AND
                        Is the additional claim against a party who was joined via 14, 19, 20, 24? Yes___AND
Does the party against whom the additional claim is being brought ruin complete diversity (per 1332)?
YES TO ALL of #3 = OUT (no Fed JX, b/c excluded by 1367b)
No to any of these in #3 = OK (Supplemental Fed JX over the additional claim, under 1367a)
1367c: Fed ct may decline supplemental JX that it would otherwise have under 1367a IF:
(1)   State Clam raises a novel/complex issue of State law
(2)   State claim substantially predominates over the claim(s) over which the Fed ct has JX
(3)   Fed dist ct has dismissed all claims over which it had original Fed JX (i.e., no longer any Fed claim to which this state claim may be supplementally connected)
(4)   Other compelling reasons (under exceptional circumstances)
***Characteristics of Pendent JX:
Pendent JX = JX over claims by same P v. same D
Pendent JX is a doctrine of judicial discretion, not of P’s right. Whether pendent JX is properly assumed remains open throughout trial.
–          If , at any point in hearing, state law claims (that don’t depend on Fed questions for their adjudication) appear to become the main body of the suit (to wh/the Fed questions are mere appendages) then state claim may be fairly dismissed.
–          Considerations for judges: Judicial efficiency; convenience & fairness to parties (location & jury confusion per Rule 42(b)). If these not present, should lean toward not hearing in a fed ct
–          If case dismissed from fed cts on this ground, can still refile in state ct. (i.e., no Res Judicata)
If JX is based on 1332, and Def(Cal) seeks to join a 3D(Cal) using 14(a), ct would have supplemental JX over the 14a claims, under §1367a (b/c 1367b doesn’t bar it, b/c complete diverstiy is maintained across the V).
–          However, if Def sought to subsequently bring additional 18a claims against 3D, these claims would be barred (under a 12b1 challenge, b/c not “so related” under 1367a), unless the 18a claims had an independent basis for Fed JX.
Counterclaims, CrossClaims & Supplemental JX:
–          Always get supplemental JX over 13g crossclaims, b/c a 13g crossclaim is already “arising out of” or “relates to any property that’s the subject matter of the original action”, ∴ automatically satisfies the “so related” clause of 1367a.
–          A compulsory state counterclaim that is sufficient to meet 13a (i.e., is “arising from” same nexus of facts), automatically satisfies the “so related” clause of 1367a.
–          A permissive state counterclaim may (or may not) satisfy the “so related” clause of 1367a, depending on the circumstances.
Hypo: RULE 13h & Supplemental JX
B (P, landlord – NY) sues C (Def, tenant – NJ) for not paying rent, under 1332.
C counterclaims (13a) for B not keeping up the property.
A (NJ property owner who leased to DefC, who leased to PB). A is inherently involved in the suit.
A not joined by B in original suit b/c it would defeat diversity.
C wants to dismiss b/c of lack of joinder of a necessary party under 19a.
–          C raises 12b7 motion to raise 19a problem.
Court doesn’t want to dismiss – tells C to join A himself.
How can C join A?
–          13h: Rules 19 & 20 govern the addition of a person as a party to a counterclaim/crossclaim.
o   13h Allows you to join a party for the purposes of submitting a compulsory counterclaim under 13a, so long as said party meets the requirements of 19 or 20. Still have the problem of the additional party defeating diversity. [Doesn’t matter whether you join using 20/19].
§ 1367a gives supplementary JX over compulsory counterclaims, even under 1332; & 1367b doesn’t take supp JX away
A couldn’t have been a co-P under Strawbridge, but Def can solve this problem (if he wants to), by joining under 13h.
3rd Party Defendants: Rule 14
14a1: Allows a Def to bring in a 3PD who may be liable to the Def for all/some of the P’s claims against Def.
14a2: 3PD has to consider doing the following:
–          3PD vs. Def/3PP:
o   14a2A: MUST assert any Rule 12 defense it has against the Def/3PP
o   14a2B: MUST assert any 13a Counterclaim against the Def/3PP
o   14a2B: MAY assert any 13b Counterclaim against the Def/3PP
–          3PD vs. original P: (When 3PD attacks original P first)
o   14a2C: MAY assert any defense that the 3PD has against the original P’s claim
o   14a2D: 3PD MAY assert any claim against the original P, so long as it arises from the same transaction as the P’s claim against the Def/3PP.
–          3PD vs. another 3PD:
o   14a2B: MAY assert any 13g Crossclaim against another 3PD
14b: Allows a P to bring in a 3PD (e.g., to defend against a cross-claim/counterclaim), so long as a Def would be allowed to do so under the same circumstances (i.e., //s 14a – if the P’s 3PD may be liable to the P for all/some of the Def’s claims

the other Ps (C&D).
–          Solution: Def seeks a 1404a transfer to Calif & thereby gets personal JX.
Amendments: 15
a)      Amending the pleading before trial (15a)
a.       Party may amend it’s pleading ONCE as a matter of course (i.e., w/o needing permission from the ct) under these circumstances:
                                                   i.      Before being served w/a responsive pleading (15a1A); OR
                                                 ii.      If a responsive pleading is not allowed to this one (the one you’re trying to amend), and the action isn’t yet on the trial calendar, and it’s w/in 20 days after filing this pleading (that you’re trying to amend) (15a1B)
–          Otherwise, party seeking to amend must seek ct’s permission (or other party’s written consent), & ct should freely give consent when justice requires (15a2)
b)      Amendments during & after the trial (15b)
a.       During trial: Amendment to conform pleadings to include issues that would allow admission of evidence you want to admit
                                                   i.      At trial, if a party objects that evidence is not w/in the issues raised in the pleadings, the ct may permit the pleadings to be amended. Ct should allow this when so allowing will aid in presenting the merits & the objecting party fails to satisfy the ct that so allowing would prejudice the objecting party’s action or defense on the merits. (15b1)
                                                 ii.      At or after trial (even after judgment rendered), a party may move to amend the pleadings to conform them to the evidence raised at trial, and to [thereby] raise an unpleaded issue. When an issue not raised by the pleadings is tried by the parties’ express or implied consent [b/c one party admits evidence relevant to the issue not pled, and the other party fails to object], said issue must be treated in all respects as if raised in the pleadings. (15b2)
c)       When an amendment relates back to the date of the original pleading – Relationship between Amending pleadings & SOL. Rule 15(c): (numbering below is actual FRCP numbering)
(1)    Amendment relates back to the date of the original pleading when ANY of these:
(A)   the law that provides the applicable SOL allows relation back
(B)   amendment asserts a claim or defense that arose out of the conduct/ transaction/ occurrence set out (or attempted to be set out) in the original pleading
(C)   amendment changes the party, or the naming of the party against whom a claim is asserted, IF 15c1B is satisfied AND IF, w/in the time granted by 4(m) for service (120 days after complaint filed), the party to be brought in via the amendment…
(i)                  rec’d notice of the action such that it won’t be prejudiced in defending on the merits, AND
(ii)                knew/should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity
d)      15d: Supplemental pleading: Use when you want to include additional events that have happened since the time you filed your original pleading.
–          Ct may, on motion & reasonable notice, allow a party to serve a supplemental pleading IF the Supplemental pleading sets out events that happened after the date of the pleading to be supplemented (usually the original pleading). (15d) …
o   Ct may allow this even if the original pleading is defective in stating a claim or defense.  (15d)
o   Ct may order that the opposing party plead to the [new] supplemental pleading w/in a specified time. (15d)