Civil Procedure Rules

Pleadings and Motions

1. If all the requirements for an interlocutory appeal are filed the court still has
discretion to accept or deny the appeal.
2. In the federal court system, an order for a new trial is not a final judgment.
3. Without a final judgment on the merits for the case, there is no appellate court
jurisdiction.
4. In federal courts, an order for a new trial means the case is not resolved and will
proceed in the district court. It’s NOT a final judgment.
5. Subject matter jurisdiction cannot be waived, but personal jurisdiction can.
6. Even when requirements for diversity jx are satisfied, federal courts cannot exercise
jx over domestic relation or probate proceedings.
7. A lack of subject matter jx can be asserted at any time, it cannot be waived.
8. a D wants to remove a civil case to federal court, they have to remove it to the federal
court whose division covers the state court where the original action was filed.
9. A federal court can have supplemental jx over another plaintiffs claim when it (1)
stems from the same case or controversy and (2) additional P isn’t a citizen of the
state of any of the defendants.
10. A states long arm statute cannot give its court more power than under the US
Constitution but it can give them less.
11. A civil action in a state court arising under workers comp laws of that state cant be
removed to a district court even if diversity jx standards are met.
12. A forum selection clause indicates where a lawsuit has to be filed, not which states
substantive law is to be applied.
13. The defense of improper venue is waived if you don’t raise it in your initial pre-
answer motion.
14. When a plaintiff files a claim in a specific state, they’re consenting to that states
jurisdiction.
15. When a federal court would have jurisdiction solely based on diversity, and the D is a
citizen of the state where the action is brought, the action cant be removed to fed
court.
16. A D has to file a notice of removal with the federal district court, not the state court.
17. Since its likely a jury would be biased after hearing repeated derogatory comments
from an attorney, if the other side files a motion for new trial the courts would grant
the motion.
18. The collateral order doctrine is a narrow exception to the finality requirement for
appeals. Under this doctrine a claim or issue is immediately appealable if its too
important to wait, and there’s three requirements (1) lower court had to conclusively
answer the disputed question, (2) the issue has to be separate from and collateral to
the merits of the main issue, and (3) the issue has to be unreviewable on an appeal
from the final judgment. This really only applies to cases involving immutinty and
double jeopardy where basically someone has a right to not even have to do a trial.
19. Motions for a new trial can be made for errors concerning the admissibility of
evidence, jury instructions, juror misconduct, excessive/inadequate verdicts, or
verdicts against manifest weight of evidence.
20. If a D has a defense that can’t be asserted under a Rule 12 motion, they have to file an answer
first then a motion for summary judgment.
21.
Pretrial Procedure
1. A plaintiff may request the D to waive service of process. They have to mail a formal
request and the D has 30 days from that date to return the waiver. If they don’t waive
service of process they must have good cause, otherwise they’ll be responsible for
fines the ct can impose (service fees etc.)
2. The rules of civil procedure don’t require a claimant to plead facts constituting a
cause of action, each complaint just needs a short statement on grounds for the courts
jx, short statement showing the pleader is entitled to relief and a demand for judgment
for relief.
3. An amendment that changes the party the claim is asserted against relates back to the
date of the original complaint as long as the party who should have been served had
notice the wrong party was named.
4. When dealing with necessary parties who cant be joined, the FRCP require the court
to determine whether in equity and good conscience the action should proceed.
5. Permissive counterclaims arise out of a completely unrelated transaction.
6. To bring a permissive counterclaim you need independent jurisdictional basis and
meet the jx amount requirement.
7. Supplemental jx claims relate to the claim in action and don’t need to meet the 75k
requirement.
8. Misjoinder isn’t a ground to dismiss, only to sever.
9. When a claim is misjoined, federal court severs the claim then determines whether
they have smjx over the severed suits.
10. The courts don’t HAVE to afford class members an opportunity to opt out before the
court approves the settlement.
11. A court can only approve a coupon settlement after the court holds a settlement
hearing to make sure its fair.
12.
Burden of production
Discovery & Jury Trials
1. The issue of whether requirements for a class action have been met is an equity issue,
thus determined by a judge not a jury.
2. An issue common to both legal and equitable claims in the same proceeding has to be
tried by a jury when a jury has been properly requested.
3. The 7th amendment doesn’t preclude states from having juries in civil cases, jury
rights are a matter of state law in those circumstances.
4. The 6th amendment applies ot states, but the jury guarantee only applies to criminal
cases.
5. While ejectments are not suits for monetary damages, they were historically
considered a writ at common law so they trigger the 7th amendments jury guarantee.
6. The 7th amendment only guarantees a jury to suits at common law- not equitable
remedies.
7. The FRCP require parties to submit disclosures and discovery responses in a timely
ammner. If you have information that you don’t disclose when you learn it, the court
 cant consider that info if someone files a motion for summary judgment etc. against
you.
8. The 7th amendment right to jury trial requires claims to be both legal (not equitable
etc.) and asserted against the type of D that was suable at common law in 1791.
Foreign instrumentalities were not suable at common law in 1791.
9.
Summary Judgment
1. A party can only file a motion for judgment as a matter of law before a claim goes to
a jury and renew the motion after the verdict.
2. A party cannot raise a motion for judgment as matter of law for the first time on
appeal.
3. A motion for summary judgment is only available within 30 days after the close of
discovery.
4. Motions for JMOL and motions for new trial have different requirements so a court
can grant one but not the other if a person files for both.
5. A defendant who moves for summary judgment based on issues that the plaintiff has
the burden of proof for, doesn’t NEED to support their motion with an affirmative
evidentiary showing. It’s enough if they just demonstrate that no evidence on the
record supports the plaintiffs case.
6. A defendant who moves for summary judgment may win the motion by either
showing no evidence in the record supports the p’s case, or by a showing of
affirmative evidentiary support.
7. Motions opposing summary judgment can be supported with affidavits, but they must
be (1) based on personal knowledge; (2) set forth facts that would be admissible
during trial, (3) show that affiant is competent to testify. Affidavits can have opinion
but it also needs factual support to support that opinion, you cant just say I think my
husband is dead bc I haven’t seen him in 7 years.
8. When ruling on a renewed JMOL the CT shouldn’t consider credibility of witnesses,
conflicts in testimony etc. Instead they have to determine if a rx jury would have
sufficient legal basis for finding for the nonmoving party.
9. If a P moves for summary judgment, for a D to secure their right to a jury trial, they
need to come forward with evidence that creates a genuine question as to the P’s
evidence and show that a rx jury could find for them.
10.
 Determine burden of proof
 Determine burden of production
 Genuine issue of material fact
Former Adjudication (Res Judicata & Collateral Estoppel)
1. Collateral estoppel doesn’t require a decision from a jury, relitigating an issue can be
barred if the initial fact findings were made by a judge.
2. Issue preclusion only applies to a party or its privies.
3. Claim preclusion arises when a final judgment on the merits is reached on a particular
cause of action. The same cause of action in a later lawsuit is prohibited.
4. Collateral estoppel can only be asserted against someone who was a party in the
previous case.
5.
Appealability and Review
1.

Jurisdiction and Venue

Verdicts and Judgments

1. You don’t get relief when you are aware of a critical argument and fail to raise it
at the appropriate time- for example if your case is being dismissed for forum non
conveniens and you fail to bring up the fact that no other court can hear your case,
you are out of luck!
2. When improper comments by an attny are not single isolated incidents, but
repeated reminders to the jury, the court cant count on instructions to disregard
the comments- they have to grant a motion for new trial.
3. The FRCP requires a D to be served with both a summons and a complaint. If not
they can file to dismiss for insufficient process.
4. When ruling on a parties renewed JMOL the court should review the evidence in
favor of the non moving party.
5. A potential D who might be jointly and severally liable isn’t a necessary party. So
CT’s aren’t required to dismiss in that case, and even then CT’s have discretion
whether to dismiss a suit when a necessary party cant be joined.
6. A party from whom documents are requested cant place the burden of identifying
those documents on the other party.
7. If more than 21 days has passed since a complaint was served to D, P needs the
courts permission to amend their pleadings.
8. An amendment to a pleading relates back to the original pleading when the
amendment asserts a claim/defense that arose out of the same conduct/occurrence
as the original pleading.
9. When a court is sitting in diversity, state standards apply.
10. Remittitur applies when a judge believes damage awards are excessive.
11. States may have additur rules, but the SCOTUS decided additur violates the 7th
amendment.
12. Under FRCP courts can relieve a party from final judgment. Grounds for this are
mistake, newly discovered evidence, fraud, and more.
13. Motion for a new trial must be filed no later than 28 days after entry of a
judgment.
14. JMOL has to be renewed within 28 days of judgment being entered against them.
15. Statute of litimiations defense isn’t waived if you don’t make it in a pre-answer
rule 12 motion. Can do it later !
16. Lack of PJX is waived if you don’t raise it in the pre-answer motion.
17. In suits brought to fed ct under diversity, a P can’t use supplemental jx to add
non-diverse third party D’s. But D’s can add non diverse third party D’s through
supplemental jx.
18. If a party seeks to discover work product, they can only do so through a CT order.
Must show that you have substantial need for the info and it would cause undue
hardship to obtain materials in an alternative way.
19. A party wanting to file a motion for sanctions has to first serve the motion to the
opposing party- THEN if opposing party doesn’t withdraw or correct the issue
within 21 days, the moving party can file a motion for sanctions with the court.
20. A party can depose testifying experts who are expected to be called at rtial, but
they are not entitled to depose consulting experts who aren’t expected to testify at
trial. Disclosures from consulting experts are only discoverable when you show
an exceptional circumstance where its impracticable for the other party to get
those facts by other means.
21. Collateral estoppel and issue preclusion ARE THE SAME THING.
22. Rule 26(c) allows a court to prohibit revelation of info learned in discovery
outside of litigation.
23. A court should modify a pretrial order ONLY to prevent manifest injustice. Thus
for example, modifying your witness list to include someone you forgot who has
decent but not ground breaking testimony isn’t enough.
24. Rule 1 sanctions don’t apply to discovery requests, responses, or motions.
25. If a party’s interest in a suit will be impaired if they are not joined, that party is
only necessary, not indispensable.
26. If a parties interst would be prejudiced if excluded, they are considered an
indispensable party and the ct has to dismiss the original claim if they cannot be
joined.
27. Federal pleading requirements apply to federal courts even when they hear
diversity cases. Pleadings have to have legal conclusions and facts that make the
 claim plausible, not just possible. (i.e. bare assertion that someone was negligent
isn’t enough)
28. If youre seeking relief from a judgment due to mistake, surprise, neglect, etc. you
have to do it within one year of entry of the judgment. Even if it’s your attorneys
fault.
29. A judgment as matter of law is a motion made by a party, during trial claiming the
opposing party has insufficient evidence to support their case.
30. A JMOL cannot be made before the trial begins (i.e. after pre-trial motions)
31. You can file a judgment on the pleadings if its obvious on the face of the pleadins
that you are entitled to judgment. (i.e. P says D breached contract, D admits it and
tries to make an invalid excuse).
32. Removal statutes allow a D to remove a civil action brought in state court if the
federal courts have federal question JX.
33. Federal courts don’t provide for alternate jurors.
34. If a juror acts in good faith and doesn’t deliberately lie when responding to voir
dire question, even if something that the attorney wanted to find out isn’t
disclosed it wont result in a reversal of the judgment.
35. If an attorney is unprepared to participate in trial/pretrial conference the court can
impose sanctions.
36. An attorney who goes to a pretrial conference has to be authorized to make
stipulations and admissions about anything that could have been reasonably
anticipated for discussion.
37. Federal court with diversity jx applies the choice-of-law rules of the state they’re
in.
38. While erie declared the end of federal general common law, they still can create
federal common law in areas of strong federal interest.
39. Issues tried by consent are treated as if they were raised in the pleadings.
40. If a party doesn’t object to new evidence introduced to show liability then they
consent to trying those issues.
41. A corporation is at home in its state of incorporation as well as state of principal
place of business or even where the board meetings are.
42. A court cant allow a party to amend their complaint and add another party if that
party would ruin diversity and take away the courts jurisdiction.
43. If a party is looking for a different from of relief (i.e. equitable instead of legal)
from the original claim they brought which had a final judgment, it’s still barred
under res judicata.
44. A court can enter final judgment on fewer than all the claims if they determine
that theres no reason to delay, but a party can block this if they show that partial
judgment will put an undue burden on them.
45. Having property in a state that’s unrelated to a claim isn’t enough to give a ct in
that jx personal jx over the owner of the property, they still must have minimum
contacts. (ie need to have visited the property, use it etc.)
46. If a federal ct has supplemental jx over state claims, and the P drops the federal
question the state claims were attached to, the court show allow the party to
remand to state court unless there;s a good reason for them to keep the case.
47. New trials can be granted if the verdict is against the weight of the evidence, to
correct an error, or because the verdict is excessive or inadequate.
48. JMOL is granted when a reasonable jury wouldn’t have a legally sufficient basis
to find for the non-moving party.
49.