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Civil Procedure I
University of Iowa School of Law
Bauer, Patrick B.

Prof. Bauer Spring 2010

1. Checklist for Moving Through Essay
a. First, look at personal jurisdiction.
i. Ensure Defendant had minimum contacts with the state; and
ii. That Defendant received such notice and opportunity to be heard as to satisfy the constitutional requirements for due process.
b. Second, check to see whether venue was correct. The case must be heard either:
i. In any district where the defendant resides; or
ii. In any district in which a substantial part of the events giving rise to the claim occurred.
c. Third, if the case is a federal case, ask whether the court has subject matter jurisdiction. Look to see if the case raises issues of:
i. Diversity: case is between citizens of different states; or
ii. Federal question: case raises a “federal question” which means that plaintiff’s right to recover stems from the US Constitution, a federal treaty, or an act of Congress.
d. Fourth, examine the pleadings (typically the complaint and answer).
e. Fifth, look at pre-trial discovery.
f. Sixth, figure out what jurisdictions law should be used in the case (ascertaining applicable law). You might look at whether:
i. There is an applicable statute on point whereby the federal court sitting in diversity must apply that law (ERIE Considerations).
g. Seventh, examine the trial procedure.
h. Eighth, examine whether or not this litigation involves multiple parties or multiple claims. Things to consider might include:
i. Counterclaims and cross-claims;
ii. Joinder of claims and parties;
iii. Interpleader (also third-party interpleader); and
iv. Jurisdiction.
i. Finally, examine whether the prior litigation is binding on the current suit [Note: May want to move this step up before pleadings]. Things you may want to consider include:
i. Merger and bar;
ii. “Collateral estoppel;” and
iii. The “full faith and credit limitation.”
2. Basic Joinder of Parties and Claims
Permissive Joinder of Parties
i. Rule 20 Permissive Joinder of Parties:
Plaintiffs: joinder done at the discretion of the plaintiff’s. Multiple plaintiff’s may (but need not) join together in an action if they satisfy two tests:
Their claims for relief must arise from a single transaction, occurrence, or series of transactions or occurrences (based on “logical relationship” or “same evidence”), and
a. There is a question of law or fact common to all plaintiffs which will arise in the action.
b. Aggregation where one plaintiff meets the amount: multiple plaintiffs are permitted to aggregate their claims to meet the jurisdictional amount, if at least one plaintiff meets the amount (Note: Supplemental jurisdiction applies to this situation see Allapattah).
2. Defendants: if one or more plaintiffs have a claim against multiple defendant, these defendants may be joined based on the same two tests as plaintiff joinder.
ii. Rule 21 Mis-joinder and Non-joinder of Parties
iii. Rule 42 Consolidation; Separate Trials
iv. Apache County v. Superior Court (Ariz. 1989): where there is no common thread running between or through each of the claims, joinder is improper.
1. Court uses the “same evidence” test whereby the court recognizes that the greatest demand placed upon a court in litigation is to hear and consider the evidence.
v. Alexander v. Fulton County (11th Cir. 2000): where the plaintiff’s claims arise out of the same transaction or occurrence—because of the common core of allegations, the substantial overlap of the particular claims, and the logical interconnection of several of the different forms of the alleged discrimination—the trial court did not err in not severing the claims.
1. Court uses the logical relationship test whereby the test does not limit itself to just the evidence but instead considers all factors that may exist in a particular case.
a. Obvious problem with a case-by-case approach is uniformity.
vi. Note: “juridical link” is a legal relationship which sufficiently relates all the defendants so that a single action is preferable.
1. Most found when members of a defendant class are state officials charged with enforcing or uniformly acting in accordance with a state statute or common rule or practice of state-wide application, which is alleged to be unconstitutional.
b. Counterclaims: “a counterclaim is a claim by a defendant against a plaintiff.”
i. Rule 13 (a)-(f) Counterclaims
1. Permissive: any claim that does not arise out of the same transaction or occurrence as plaintiff’s claim is a “permissive” counterclaim. Defendant does not lose her counterclaim in future litigation if she declines to assert it in the first suit.
2. Compulsory: any claim that arises out of the same transaction or occurrence. If defendant does not assert her compulsory counterclaim, she will lose that claim in any future litigation (res judicata). Defendant must include a compulsory claim in the pleading.
a. Rule 13 Exceptions:
i. When the claim is the subject of another pending action at the time the present action was commenced; or
ii. When the claim is in rem or quasi in rem.
ii. Simmons v. Simmons (Colo. 1988): sound policy considerations preclude either permissive or compulsory joinder of interspousal tort claims, or non-related contract claims with dissolution of marriage proceedings.
1. Note: Colorado and Arizona adopt a “no fault, not compulsory” approach while NJ adopts a “fault, compulsory” approach and UT adopts a “fault, noncompulsory” approach.
2. Note: Simmons is a judge-made exception not an explicit exception to Rule 13 (a).
c. Cross-Claims
i. Rule 13 (g)-(i) Cross-Claims: a claim by a party against a co-party. It is only made against a party who is on the same side of an already-existing claim. They are NEVER compulsory.
ii. Rainbow Management Group, Ltd. v. Atlantis Submarines Hawaii (D. Haw. 1994): plaintiff’s claim is a compulsory counter-claim where another party’s cross-claim is substantive in a previous case.
1. Note: the claim is still compulsory even though the parties were co-parties in a previous case. The claim still needed to be asserted then.
2. Note: co-parties become opposing parties within the meaning of Rule 13 (a) after one party pleads a cross-claim against the other.
a. But the court notes that this should be limited to substantive cross-claims as opposed to a claim for indemnity or contribution.
3. Note: when in doubt assert a counter-claim because it will be a loss altogether if you don’t.
d. Third-Party Claims (Impleader)
i. Rule 14 (a)-(b) Third Party Practice: when a defendant “impleads” someone as a “third-party defendant” because she believes the third party is liable to her for all or part of the plaintiff’s claim. The defendant who is making the third-party impleader claims is called the “third-party plaintiff.”
1. Note: once a third-party defendant has been impleaded, she may make claims of her own, including counterclaims against the third party plaintiff.
ii. Lopez de Robinson v. United States (D. P.R. 1995): where defendants are not joint tortfeasors and had no contractual relations with one another, the third party complaint by defendant is not valid under Rule 14(a).
1. Note: defendant may raise a defense that the third party was negligent in bringing about the death of the plaintiff’s spouse, but they must raise this as a defense not as an argument for impleader.
2. Note: Rule 14 does not itself create a right of indemnity or contribution. Instead, the party seeking impleader must show that such a right already exists in the substantive law. Rule 14 simply provides a procedure by which defendant’s existing right of indemnity or contribution can be litigated along with the suit establishing defendant’s liability.
e. Permissive Joi

908): case dismissed because the federal statute was not essential to the plaintiffs’ cause of action.
a. Test:
i. First the case must turn on an issue of federal law, the United States Constitution or a treaty (FQ).
ii. Second, that issue of federal law must appear in plaintiff’s well-pleaded complaint [Note: this is the portion the Mottley’s failed].
c. Diversity Jurisdiction
i. Test:
1. Complete diversity, and
2. Amount-in-controversy must exceed $75,000.
ii. Introduction:
1. Was established by §11 of the Judiciary act of 1789.
2. There have been efforts to abolish diversity jurisdiction. Why?
a. Because there is doubt whether state-court bias is a real problem, and
b. The diversity cases occupy a significant percentage of the federal court’s workload.
iii. Authority:
1. U.S. Constitution Article III, §2, Cl. 1
2. 28 U.S.C. §1332 (a)-(c) & (e) Diversity of Citizenship; Amount in Controversy Costs
a. “Complete Diversity” is a judge-made interpretation of §1332 (Strawbridge v. Curtiss). Thus, Congress is free at any time to specify that “partial” diversity will suffice.
b. Congress has removed the requirement for complete diversity in certain types of cases:
i. Interpleader
ii. Class actions
c. Nominal Parties: in determining the existence of diversity, nominal parties may be ignored.
d. Date of Determination: a court will look only to the citizenship of the parties on the date the case begins.
i. Except in the case of removal in which diversity of citizenship must be diverse on the day the case begins and the day the case is removed.
e. Refusal to Exercise Jurisdiction: even where diversity jurisdiction exists, the federal court may still decline to exercise jurisdiction under certain circumstances. Exceptions:
i. Where diversity is the result of improper or collusive joinder of parties;
ii. Where domestic relations constitute the main subject matter of the suit;
iii. Where probate matters are the essence of the suit; or where
iv. The “abstention doctrine” is invoked (congestion, difficulty of state law, etc).
f. Domicile v. Residence: residence, by itself, is not enough to make a person a citizen of a state in the sense in which the term is used under Art. III. Domicile is controlling.
i. Domicile: a person is usually considered to be domiciled in the place where he has his current dwelling-place, if he also has an intention to remain in that place, for an indefinite period (Domicile=current dwelling place + intent to remain indefinitely). For the purposes of citizenship, you can only have one domicile.
ii. Note on domicile:
1. An infant acquires domicile at birth, which is almost always the domicile of his/her parents.
2. A person only one domicile, but can have multiple residencies.
3. A minor will usually keep the domicile of his parents until the age of majority.
4. People with diminished capacity cannot themselves form the intent to change domicile.
5. An insurance company will be a citizen of its state of incorporation, principal place of business, and the insured’s state of domicile.