Civil Procedure Outline: Professor Crump, Fall 2017

By Davis Hairston

Personal Jurisdiction

 Territoriality: A court generally has power to adjudicate a person validly served with process
within its territorial limits (Burnham v. Superior Court)
o Fraud is an exception to the above
o Also called Tag Jursidiction
 Consent: A court has jurisdiction to adjudicate as to persons who have consented to the
jurisdiction of the court either expressly or impliedly (Hess v. Pawlowski)
 Waiver: If you appear to defend against the claim without objecting to jurisdiction early on, you
have consented to jurisdiction.
o Special Appearance is not a waive
 Long Arm Jurisdiction must comply with Due Process: There must be sufficient contacts such
that jurisdiction over defendant is consistent with traditional notions of fair play and substantive
justice (International Shoe v. Washington)
o Specific Jurisdiction: One contact may be sufficient if the claim arises out of the
contact(s) with the forum state, contact and claim are related (Mcgee v. International
Life)
o General Jurisdiction: The claim is unrelated to the contacts with the forum state.
Contacts must be so systematic and continuous such that the defendant is essentially at
home in the forum state (Perkins v. Benguet). Further refinements have found:
 Must have Purposefully Availed themselves of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of
its laws (Hanson v. Denckla)
 Defendant must have Reasonable Anticipation of being brought to suit in the
forum state
o If there is a commercial defendant there is jurisdiction unless the defendant makes a
compelling showing of convenience issues (Burger King)
 Do not rely on this, at the discretion of the court and never been used
o In Rem: The court can adjudicate rights of the land because the court has power of the
land in its state
 The property cannot be held hostage to compel the defendant to appear if
there are no other contacts with the state and the property is not connected to
the claim (Shaffner v. Heitner)
 Applies International Shoe Test to in rem
 See whether there is a nexus between defendant, state, and litigation to
satisfy the fair play test
 Jurisdiction must comply with forum state’s Long-Arm Statue:
o Laundry List: Lists contacts necessary to create jurisdiction over a foreign defendant
o Limits of Due Process: There must be sufficient contacts such that jurisdiction complies
with traditional notions of fair play and substantive justice
 Civil Procedure Outline: Professor Crump, Fall 2017
By Davis Hairston

o Hybrid: Laundry List with a Due Process “catch-all”-“arising out of the business done in
the state”
 Challenging Personal Jurisdiction
1. Refuse to appear and challenge jurisdiction when foreign state tries to urge your state to
enforce the decision
a. If you lose jurisdiction argument you lose the right to challenge the suit on its merits
2. Make a special appearance in the forum state to challenge jurisdiction

Service of Process

 Must comply with Due Process and State-Law Methods

o Notice has to be reasonably calculated to give defendant notice of the claim and time to
respond
 At minimum, mailed service ought to be allowed
 If you do not have address, advertising or publication may be enough
 May be sufficient even if not received
 Must use method of service that local rules provide for, etiquette of service
o Must be served by person 18 or older that is not a party to the suit
o Complaint must include notice and waiver
 Notice gives information of complaint
 Waiver waives actual service, if signed and returned equivalent to defendant
being served
 Methods of Service, Individual
1. In-hand or registered mail
 Process cannot be served in state on a defendant that is only in the state to
answer another civil suit against them
2. Through an agent
 For out of state service, serve on the Secretary of State
3. Leave with a person of suitable age and discretion at the dwelling or usual place of
abode at which the defendant is then residing
4. State-Law Methods
 Methods of Service, Corporation
1. Registered Mail Directed to Corporation
2. Can serve Officer, President, or Managing Agent
3. General Agent that has authority to bind corporation in contracts
4. Agents authorized by appointment or law
 Substituted Service may only be used if plaintiff proves impracticability of usual service
 Judge may order any method reasonably calculated to inform the defendant of the suit
 Must make sworn showing of inability of other forms of service

Venue

 Always many courts in either system that could acquire jurisdiction

 Civil Procedure Outline: Professor Crump, Fall 2017
By Davis Hairston

o Venue limits and narrows where the trial can be

o Matter of privilege to the defendant, must be asserted
 Section 1391: A civil suit may be brought
1. In a district where any defendant resides if all defendants are from the same state;
 Or where all defendants reside
2. Where a substantial portion of the action of the claim occurred; or
3. If an action does not fit the above options, any district in which any defendant is subject
to personal jurisdiction of the court
 Transfer of venue may only be granted;
o For the convenience of parties and witnesses,
 Also includes the location of relevant documents and the relative ease of access
to sources of proof (Robertson v. Cartinhour)
o In the interest of justice,
 Where did the controversy arise is what usually considered
o At the discretion of the judge, and
 Courts usually defer to plaintiff’s choice of forum unless the connection
between the case and the forum is minimal or where the plaintiff is motivated
primarily by tactical considerations (Robertson v. Cartinhour)
o Only to a venue where the suit might have been brought
 A venue that both parties agree to, or
 Forum Non Conveniens: When a suit that is brought before one court would more appropriately
be heard before another court which the first cannot legally transfer to, the initial court will
either dismiss the case or stay the action before it in order for the plaintiff to file in the proper
court
o State to State (i.e. Texas State court to California court)
o Federal to Foreign Nation (i.e. American Federal court to Scottish court)

Subject Matter Jurisdiction

 Power over the type of dispute, what state has the power to rule
o Removable without regard to citzenship
 Arising Under, Federal Question
o Initial claim must arise under the U.S. Constitution, Federal Statues, or Treaties
 Federal Defense is not enough
 Anticipation of a Federal Defense is not enough
 Use of a Federal law that avoids a federal defense is not enough
o Creation Test: Claim is itself created by Federal Law, i.e. violations of free speech
o Ingredient Test: Substantial ingredient of the claim is Federal Law
 More liberal and generous
 Diversity
o Exceed $75K
o Diversity of Citizenship, must be complete
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 Permanent resident aliens are citizens of the state in which they reside
 All Defendants must be completely diverse from all Plaintiffs
 Every plaintiff must be able to sue every defendant
 A corporation is a citizen of the state of incorporation or the principle place of
business
 The Nerve Center Test, where headquarters is located
 Supplemental
o Allow closely related claim that does not have a jurisdictional handle to be litigated in
the same case as a federal case, more efficient and fair
o State claim so related to a claim over which federal court has jurisdiction that they form
part of the same case or controversy under Article 3 of the Constitution
 Federal and state claim in the same claim, can be brought in the same case
 Counterclaim not within federal jurisdiction, can be brought in same case
 Claim against outside third party, can be brought in the same case
 Federal claim outweighs the state claim
o Discretionary by court in certain instances, can choose to dismiss if:
 Novel state questions
 State claim is predominant
 Jurisdictional claim dismissed early in case
 Other exceptional cases
o Includes all types of claims
 Removal
o Defendant takes case from state to federal, must be under original jurisdiction of federal
court
 If it could have been filed in the federal court to begin with, normally removable
o Defendant files Notice of Removal, all defendants must agree to this
 Must be done within 30 days after receipt of pleading or other document
providing notice of removability
 Notice to parties effectuates removal, state court must stop adjudicating case
 Federal Court may remand if it does not have jurisdiction, cannot be repealed
o Reasons for Removal
 Diversity
 The case cannot be removed by local defendant or if there is a local
defendant
 1 year limit on removal
 Arising Under
 Removable without regard to citizenship
 Objection on Procedural Grounds by Plaintiff
 Plaintiff must object within 30 days or else waived the procedural
defects
 Special Jurisdiction Statue
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o Federal court always has jurisdiction over:

 United States is a party
 Foreign Country
 Bankruptcy

Erie Doctrine

 In diversity or other state claim cases, substantive law determined by the substantive law of the
state where the district court sits
o Federal Judges do what State Judges would do when presiding over State Issues
 State law governs in the forum state
o Policy issues this alleviates
 Avoids forum shopping
 Absence of irrational discrimination
o Basis of decision Constitutional
 Federal Courts have no power to make up State laws of decision
 Substantive Law or Procedural Law
o Controlling Federal Rule: When the substance-procedure distinction is ambiguous, there
should be deference to controlling provisions in the Federal Rules
 it is automatically procedural unless it is so clearly substantive that it would be
unconstitutional to follow
 if there is a rule that controls the outcome of the case, follow that rule
o If there is NO controlling federal rule, use the following tests:
 Outcome Determination: If the rule will likely make a difference to the outcome,
the rule was substantive
 Absolute Outcome Determination: If the rule had a strong likelihood or even a
certainty of affecting the outcome, only then substantive
 Balancing: Determination by the strength of the competing state and federal
policies underlying the different rules in question
 Strong Federal Policy for doing something a certain way, procedural
 Strong State Policy for doing something a certain way, procedural
 Policies of Erie: If the application of federal law would produce irrational
differences in results and encourage forum shopping, the matter is substantive
 Federal court infers what highest state court would do when delivering a ruling based on state
law, including which state law forum state would use in out of state cases
o If there is no decision on point, the court makes an “Erie Educated Guess”
 Infers what the highest court would do using similar cases
 State Choice of Law Rules, Federal Court follows the forum state’s choice of law rule
o Most Significant Relationship
 The state that has the most interest in the outcome of the case
o Lex Loci Delicti
 The place where the injury or claim occurred
 Civil Procedure Outline: Professor Crump, Fall 2017
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Pleadings

Common Law and Code Pleading

Standards for the Federal Complaint

Rule 7: Pleadings Allowed

(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers.
(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of form in pleadings apply to
motions and other papers.

Rule 8: General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no jurisdiction new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
(d) Pleading to be concise and direct
(1) Each allegation must be simple, concise, and direct. No technical form is required.

Rule 10: Form of Pleadings

(a) Caption: Every pleading must have caption setting forth the court’s name, a title, a file
number, and a Rule 7(a) designation.
(b) A party must state its claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.
(c) A statement in a pleading may be adopted by reference elsewhere in the same pleading or in
another pleading or motion.
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 Complaints must
o State a claim
o Show jurisdiction
o Claim relief
 Alternate or inconsistent claims are allowed
 Notice Pleading: Each allegation must be a short and plain statement that gives reasonable
notice of the claim and provide facts showing plausible inference of a claim.
o The statement must be specific enough to give defendant notice of the plaintiff’s claim
 Give notice of the factual context and legal type of claim
 Must also provide notice that would reasonably apprise defendant of type of
claim and factual context but not the elements
o If all allegations are assumed true and the court concludes that the plaintiff cannot
recover anything under the law, then the court can dismiss
 Cause of Action Pleading: Plead each element of the cause of actions
o Statement must give notice of each of the elements of the claim
 Three types of defense attacks on pleadings
o 1. Motion to Dismiss for Failure to State a Claim
 If all the allegations are assumed true, but the law says plaintiff still can’t win
anything, then the complaint is subject to dismissal
o 2. Motion for More Definite Statement
 Does it give reasonable notice
o 3. Motion to Strike
 Must not contain irrelevant, immaterial, or scandalous material
 Certain things must be alleged with particularity
o i.e. Fraud and special damages
 The answer may contain
o Motion attacking jurisdiction, venue, service, or parties
 Jurisdiction and venue waiced if not raised promptly
o Motions directed toward complaint
o Motion for more definite answer or strike
 May be filed before answer filed
o Denials and Admissions
 General Denials allowed in State Claims
 Denies the whole claim, makes plaintiff prove each statement
 Federal courts must parse the complaint
 Read and answer each allegations, admit or deny in good faith
 Affirmative Defenses must be alleged by Notice Pleading
o Abatement
 Jurisdiction, service, venue, parties
o Attacks on Pleadings
 Failure to state a claim
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 Motion for more Definite Statement

 Motion to Strike
 Amendment can be done as a matter of right once before a responsive pleading is filed
o Permissive amendment can be done with
 Permission from opponent, or
 By leave of court, broad discretion to deny


Defendant’s Pleadings

Rule 8: General Rules of Pleading

(b) Defenses; Admissions and Denials
(1) In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it;
and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials. A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the
allegations of a pleading, including the jurisdictional grounds, may do so by a general denial. A party that
does not intend to deny all the allegations must either specifically deny designated allegations or
generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of
an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information
sufficient to form a belief about the truth of an allegation must so state, and the statement has the
effect of a denial
(6) Effect of Failing to Deny. An allegation, other than one relating to the amount of
damages, is admitted if a responsive pleading is required and the allegation is not denied. If a responsive
pleading is not required, an allegation is considered denied or avoided.
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including:
 Accord and Satisfaction;
 Arbitration and Award;
 Assumption of Risk;
 Contributory Negligence;
 Duress;
 Estoppel;
 Failure of Consideration;
 Fraud;
 Illegality;
 Injury by Fellow Servant;
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 Laches;
 License;
 Payment;
 Release;
 Res Judicata;
 Statue of Frauds;
 Statue of Limitations; and
 Waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim,
or a counterclaim as a defense, the court must, if justice requires, treat the pleading as
though it were correctly designated, and may impose terms for doing so.
(d) Pleading to be Concise and Direct; Alternative Statements; Inconsistency
(1) Each allegation must be simple, concise, and direct. No technical form is required.
(2) A party may set out two or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.
(3) A party may state as many separate claims or defenses as it has, regardless of
consistency.

Rule 12: Defenses and Objections

(a) Time to Serve a Responsive Pleading.
(1) Unless another time is specified by this rule or a federal statue, the time for serving a
responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint;
or;
(ii) if it has timely waived service, within 60 days after the request for a
waiver was sent, or within 90 days after it was sent to the defendant
outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days
after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served
with an order to reply, unless the order specifies a different time.
(2) The United States, a United States agency, or a United States officer or employee
sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within
60 days after service on the United States attorney.
(3) A United States officer or employee sued in an individual capacity for an act or
omission occurring in connection with duties performed on the United States’ behalf must serve an
answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or
employee or service on the United States attorney, whichever is later.
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(4) Unless the court sets a different time, serving a motion under this rule alters these
periods as follows
(A) if the court denies the motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive
pleading must be served within 14 days after the more definite statement is served.
(h) Waiving and Preserving Certain Defenses.
(1) A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting if from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either;
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by
Rule 15(a)(1) as a matter of course
(2) Failure to state a claim upon which relief can be granted, to join a person required by
Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a)
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) If the court determines at any time that it lack jurisdiction, the court must dismiss
the action.

Certifications and Sanctions: Rule 11

 An attorney’s signature on a claim certifies that each allegation;

o Has been made after a reasonable inquiry
 An objective standard
 Attorney acting in ignorance of facts and law that would be disclosed by a
reasonable investigation could is not protected by good faith argument
o There is no improper purpose behind the complaint
o Backed by evidentiary support, or is likely to be after discovery
o Warranted by existing law or by no frivolous argument for extension
 Violations make incur sanctions, judges have discretion under Rule 11
o Purpose and limit must that which is sufficient to deter violation
o May be imposed on
 Attorneys
 Law Firms
 Parties responsible for violation
o Must be an “appropriate” sanction
 Does not have to be monetary
o If party wants to file a motion for sanctions
 Draft motion, do not file
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 Serve on the offending party

 May only file if offending pleading not withdrawn within 21 days
o Judge may also initiate the procedure
 To avoid sanctions
o Send demand letter
o Cross examine client, must understand what they are telling you
o Document the investigation
o Hire expert witness in complex cases
o Hire a legal expert when unexperienced with the issue
o Do prompt discovery, helps withdraw pleading
 New Rule 11, only applies to pleadings and documents
o Requires notice by the movant
o Provides safe harbor to claimant
 Gives opportunity to “cure”, time to amend allegations
o Makes sanctions discretionary
 Old Rule 11 made sanctions mandatory

Amendment

Rule 15:

State Court Pleadings

Multiple Parties and Claims

 Impleader: Defendant files claim against third-party.

 Joinder:
o Permissive Joinder: Plaintiff sues multiples parties, either or both could have caused suit
 Right to relief claimed jointly, severally, or in the alternative
 Out of the same transaction or series of occurances
 Common questions of law or fact are involved
o Compulsory Joinder: The court compels plaintiff to join a third party, if feasible, so that
the court can effectively render a fair judgement
 Persons needed for just adjudication
 Will cause consequences to person left out of, or someone, in the lawsuit if not
present
 Counterclaim: Defendant files complaint against Plaintiff. Compulsory counter claims must be
asserted at the time of the plaintiff’s suit.
o Permissive Counter-Claims: Those that do not arise out of the same transactions or
occurrence, may be tried later
 Cross-claim: An action by one defendant against another defendant
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 Interpleader: Suit pleaded between two parties to determine a matter of claim or right to
property held by third party
o Multiple, conflicting claims from multiple defendants
 Usually bank or insurer that has claims from more than one person to
decedent’s assets
o Claims must be inconsistent
 Intervention: A third party has an interest in a law suit but has not been made a party
 Class Actions: When there are a large number of cases dealing with essentially the same
complaint, they can be combined into a class action, brought by Plaintiff
o Four Prerequisites
 1. Numerosity: A number so large impractical to bring before court
 2. Commonality: At least one common question
 3. Typicality: Claims must be typical of class members
 4. Adequate Representation: The claimant must be such that they will
adequately represent absent parties
o Has to meet one of three models
 B1.
 B2.
 B3. A large number of consumers that have been misrepresented to in a
common scheme, must be predominance and superiority
 The common claims have to predominate over individual issues of class
members, a class action must be the superior method of resolving the
set of disputes
 Multidistrict Panel: Federal panel made of judges from multiple districts to hear a case
o Consolidation of large number of similar cases into one case, brought by Defendant
 The court has broad discretionary powers to consolidate multiple lawsuits into one case or to
separate large cases.
o Severance: Separation of different claims into different suits
o Separation: Separate trials for a single claim

Discovery and Disclosure

Scope of Disocvery: Rule 26(b)

 Parties may obtain discovery pertaining to any nonprivileged matter that is relevant to the
party’s claim or defense and proportional to the needs of the case.
o A document is privileged if its disclosure cannot be compelled at trial or during the
discovery process
 Includes but s not limited to,
 Attorney-Client Privilege
 Physician-Patient Privilege
 Psychotherapist-Patient Privilege
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 Spousal Communications Privilege

 List not exhaustive, each state may have more
 When a party withholds by claim of privilege or subject to protection must
 Expressly make claim
 Describe the nature of the documents not produced or disclosed and do
so in a manner that will, without revealing privileged information,
enable other parties to assess the claim
 If a party produces information that is subject to claim of privilege may notify
recipient of the claim and the basis for it
 Recipient must then promptly return, sequester, or destroy the
specified information and all copies
 Recipient must not use or disclose information until claim is resolved
 Recipient must take reasonable steps to retrieve information if
disclosed before being notified
 May promptly present information to court under seal for a
determination of the claim
 Producing party must preserve information until claim resolved
o A document is relevant if it is reasonably calculated to lead to admissible evidence
o Proportionality is determined by
 importance of the issues at stake in the action
 the amount in controversy
 the parties’ relative access to relevant information
 the parties’ resources
 the importance of the discovery in resolving the issues
 whether the burden or expense of the proposed discovery outweighs its likely
benefit
o Courts must limit the scope of discovery if
 Discovery sought is unreasonably cumulative or duplicative, or
 Information can be obtained from some other more convenient source, or
 Less expensive
 Less burdensome
 Party seeking information has had ample opportunity to obtain
 Outside scope
 Information within this scope need not be admissible to be discoverable

Work Product: Rule 26(b)

 A party may not discover documents prepared in anticipation of litigation or for trials, including
documents prepared by
o An attorney
o A consultant
o A surety
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o An indemnitor
o An insurer
o An agent
 A party may discover such documents if they can show
o Document prepared in the ordinary course of business
o substantial need for the materials to prepare its case
 Substantial need discretion of court
o they cannot obtain substantial equivalent without undue hardship
 Substantial equivalent and Undue hardship discretion of the court
 An attorney cannot retroactively adopt or convert the work of another, already performed, into
his own

Discovery of Experts: Rule 26(b)

 Experts witnesses are part of work product

 Experts separated into four categories
o 1. Experts expected to testify at trial
 Fully discoverable
 Party seeking discovery from the other party’s expert must pay the other party a
fair portion of the fees and expenses it reasonably incurred in obtaining the
expert’s facts and opinions
o 2. Consultants retained or specially employed for the litigation but not expected to
testify
 Discoverable on showing of exceptional circumstances under which it is
impractical for the party to obtain facts or opinions on the same subject by
other means
 Discoverable only in extraordinary circumstances
o 3. Experts consulted informally and not retained or specially employed
o 4. Experts contacted for purposes unrelated to the litigation
 i.e. Designed the product, accountants consulted for improving systems of
accounts
 Fully discoverable
 Any party seeking discovery from an expert must pay the expert a reasonable fee for time spent
in responding to depositions or trial preparations

Protective Orders and Confidentiality Agreements: Rule 26(c)

 Any party from whom discovery is sought may move for a protective order. Motion must include
certification that the movant has, in good faith, conferred or attempted to confer affected
parties. Balances need against harm,
o Court may issue order to protect a party/person from
 Annoyance
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 Embarrassment
 Oppression
 Undue burden or expense
o The order
 Forbid the discovery of disclosure
 Prescribe another discovery method
 Forbid inquiry into certain matters
 Limit scope of discovery
 Designate who may be present while discovery conducted
 Require deposition sealed and only opened on court order
 Require trade secret not be revealed or revealed in a specified way
 Includes confidential research, development, or commercial information
 If a motion for a protective order is denied the court may order that the party/person provide or
permit discovery

Mechanics of the Discovery Devices

 Depositions
o Rule 28: Depositions must be taken before
 officer authorized to administer oaths either by federal law or by the law in the
lace of examination or
 officer includes a person appointed by the court or designated by the
parties
 a person appointed by the court where the action is pending to administer
oaths and take testimony
o Rule 29: Unless the court orders otherwise, the parties may
 A deposition may be taken by any person, at anytime or place, on any notice
 May be used in the same way as any deposition
 Modify other procedures governing or limiting discovery
 A stipulation extending the time for any form of discovery must have
court approval if it would interfere with time set for completing
discovery, for hearing a motion, or for trial
o Rule 30:
 A party may depose any persons without leave of court
 deponent’s attendance may be compelled by subpoena under Rule 45
 A party must obtain leave of court
o If the parties have not stipulated to the deposition and
 Deposition would result in more than 10 depositions
 The deponent has already been deposed
o Party seeks to take deposition before the Conference of
the Parties unless deponent is leaving the country and will not
be available for examination
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 Party that wants to depose a person must give reasonable written notice to
every other party. Must state time, place, deponent’s name and address
 If unknown, must provide general description sufficient to identify the
person or the particular class or group to which the person belongs
 If subpoena dues tecum served on deponent, notice must list materials
designated for production
 Notice must state the method for recording the testimony
o May be in the form of audio, audiovisual, or stenograph
 Other forms may be designated by any party if notice is
given to the deponent and all of the other parties
 The parties or court may stipulate that a deposition be
taken over the phone or by other remote means
o Noticing party bears the costs
 Officer must begin the deposition with an on the record statement of
 Officer’s name and business address
 Date, time, and place of the deposition
 The deponent’s name
 The officer’s administration of the oath or affirmation to the deponent
 The identity of all persons present
 Officer must repeat the above, directly, at the beginning of each unit of the
recording medium, if deposition taken nonstenographically
 Officer must conclude with statement that deposition complete and must set
out any stipulations made by the attorneys about custody of the transcript or
recording and of the exhibits,
 Deponent’s or Attorneys’ appearance or demeanor must not be distorted
through recording techniques
 Examination and cross-examination proceed as they would at trial
 Testimony must be recorded by the officer or by a person acting in the presence
and under the direction of the officer
 Objections are written on the record but the deposition proceeds
 Deponent can only be instructed not to answer to preserve a privilege,
to enforce a limitation ordered by the court, or to present a motion to
limit or terminate the deposition
 A party may serve written questions in a sealed envelope on the party noticing
the deposition who must deliver them to the officer, officer must ask the
deponent
 Answers must be recorded verbatim
 A deposition is limited to one day of 7 hours
 Unless stipulated or ordered by the court
o Rule 31: A party may depose any person by written questions
 Follows the same rules Rule 30
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 Interrogatories
o Rule 33:
 Must be limited to 25 interrogatories
 Unless stipulated or ordered by the court
 May relate to any discoverable matter
 Is not objectional because it asks for an opinion or contention that
relates to fact or the application of law to fact
 Must be answered
 By the party to whom they are directed
 If the party is a corporation, partnership, association, or governmental
agency, by an officer or agent
 Responding party must serve its answers and any objections within 30 days after
being served
 Each interrogatory must be answered, if not objected to
 Objections must be stated with specificity
 Any ground not stated in a timely objection is waived, court may excuse
the failure
 Must be signed by the person who makes the answers
 Requests for Admissions: Rule 36
o Party may serve on any other party a written request to admit, for purposes of pending
action only, the truth of any matters within the scope of discovery
 Facts, the application of the law to fact, or opinions about either
 The genuineness of any described documents
 Must be accompanied by a copy of the document unless otherwise
furnished or made available for copying
o Each matter must be stated separately
o A matter is admitted unless, within 30 days of being served, serves a written answer or
objection and signed by the party or its attorney
 If matter not admitted, answer must specifically deny it or state in detail why
the party cannot truthfully admit or deny
 Denial must fairly respond to the substance of the matter
 If only denying part, must specify part admitted
o Answering party may assert lack of knowledge or information for failing to admit or
deny
 Must state that it has made reasonable inquiry
o Grounds for objecting must be stated
 Cannot object solely on the ground that the request presents a genuine issure
for trial
o Requesting party may move to determine the sufficiency of an answer or objection
 If objection not justified, court must order answer served
o Court may permit admission to be amended or withdrawn
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 Production
o Rule 34:
 A party may serve on any other party a request within the scope of discovery
 To produce and permit requestor to inspect, copy, test, or sample the
following items
o Any designated documents or electronically stored information
o Any designated tangible things
 To permit entry onto designated land or other property possessed or
controlled by the responding party so that the requestor may inspect,
measure, survey, photograph, test, or sample the property or any
designated object or operation on it
 The request
 Must describe with reasonable particularity each item or category of
items to be inspected
 Must specify a reasonable time, place, and manner for the inspection
and for performing the related acts
 May specify the form or forms in which electronically stored
information is to be produced
 Party served must respond in writing within 30 days after being served
 Must state with specificity the grounds for objection if does not state that
inspection and related activities will be permitted
 Objection must state whether any responsive materials are being
withheld on the basis of the objection
 An objection to part of a request must specify the part, permit the rest
 Producing electronically stored information
 Party must produce documents as they are kept in the usual course of
business or musr organize and label them to correspond to the
categories in the request
 If request does not specify a form for producing, party must produce in
a form or forms in which it is normally maintained or in a reasonably
usable form
 Party need not produce the same information in more than one form
o Rule 45:
 Party responsible for issuing and serving a subpoena must take reasonable steps
to avoid causing undue burden or expense on a person subject to the subpoena
 Court must impose sanctions for violation
 Person commanded to produce or permit inspection need not appear at
production or inspection unless ordered to do so by the court
 Objection to produce or permit inspection must be served in writing, must be
served before the earlier of
 The time specified for compliance or
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 14 days after the subpoena is served

 If objection is made
 At any time, given notice, serving party may move for an order to
compel production of inspection in district where compliance is
required
 Acts may be required only as directed in the order, order ust protect
nonparty nor a party’s officer from significant expense resulting from
compliance
 On timely motion, court must quash or modify subpoena that
 Fails to allow a reasonable time to comply
 Requires a person to comply beyond the geographical limits specified in
Rule 45(c)
 Requires disclosure of privileged or other protected matter, if no
exception or waiver applies
 Subjects a person to undue burden
 May quash or modify if subpoena requires
 Disclosing a trade secret
 Disclosing an unretained expert’s opinion or information that does not
describe specific occurrences in dispute and results from expert’s study
that was not requested by party
 Instead of quashing or modifying, court order appearance or production under
specified conditions if the serving party
 Shows substantial need for testimony or material that cannot be
otherwise met without undue hardship
 Ensures that the subpoenaed person will be reasonably compensated
o Rule 26: A party need not provide discovery of electronically stored information from
sources that the party identifies as not reasonably accessible because of undue burden
or cost
 On motion to compel or for a protective order, must show information not
reasonably accessible because of undue burden or cost
 Court may still compel if moving party shows good cause
 Motions for Physical and Mental Examinations
o

The Duty to Supplement; Use of Discovery

Self-Initiated Disclosures, Presumptive Limits, etc.

Discovery Certifications, Conferences, Abuse, and Sanctions

Pretrial Conferences and Case Management

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Pretrial Conferences

Judges as Managers

Docket Control

Summary Judgement, Dismissal, and Default

Judgment on the Pleadings

Summary Judgment

Dismissal

Default

Trial

Right to Trial by Jury

 Preserved by 7th Amendment extends to cases at law, not in equity

o Equity applicable to claims and defenses where no remedy at law, gap filler
o Also does not exist in habeas corpus claims or admiralty
 When law and equity combined
o Judge decides equity
o Jury decides law
 If jury is not demanded, right is waived
o Federal demand within 10 days of last pleading directed toward issue on which jury trial
being sought
 After time limit, Judge has discretion
 Demand is written demand, can be written on complaint or answer, nothing
fancy
 “Plaintiff demands trial by jury on all issues applicable”
o If removal, jury preserved if everything done to preserve in state court
 If not, 10 days rule

Demand and Waiver of the Right

Jury Selection

 Jury summons must be issued to avoid systematic exclusion of identifiable classes of people
o Constitutional requirement
o Uses voter registration list, can be supplemented by driver’s license list
o Each district must create system of exemptions
o Method of summoning includes information form for juror to fill out
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 Federal Statute allows challenge to the array of jurors on a constitutional or statutory basis
o Must be done before jury selected or within a certain number of days after error
discovered
 Voir Dire Examination, to get discovery from the jurors, may be done by the attorneys and/or
judge
o Ask about qualifications
o Ask about matters of disqualification
o Get information for preemptory challenges
o Communicate with the jury
o Obtain commitments to follow law
o Prepare jury to accept proof
o Define legal terms
o Inoculate jury
o Build reporte
o If judge does it all, must allow attorneys to make written suggestions and must fairly
interrogate jurors to discovery probable biases
 Federal judges must read formula from rules
 Two types of Challenges
o Challenges for Cause, Unlimited
 Not citizens
 Can’t read or write English
 Biased or Prejudice
o Preemptory, assigned without reason, three to a side and must have reason
 Impermissible to have race or gender as a factor
 Must make prima facie statistical case of racial/gender bias
 Submitted into record, if unrebutted it is enough to validate challenge
 Opponent must rebut with credible neutral explanation
o Judge decides if the explanation is adequate
 Always done by stereotypes and gross characteristics
 Still can’t be done on the basis of race and gender

Opening Statements

 The Rule: Witnesses must stay out of the courtroom and may only talk to the attorneys
o “Your Honor, the Plaintiff/Defendant invokes the rule”

Evidence and “Proof”

 The party with the burden of proof opens and has the right to close evidence
 If the evidence is logically relevant, it is admissible
o If evidence has any tendency to make a fact at issue more likely/less likely without
evidence, then it is logical relevant
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o Unless excluded by exclusionary rule

 Exclusionary Rules
o Relevancy balanced against prejudice
 If logical relevancy substantially outweighed by prejudice or confusion, then
excluded
 Judge has discretion to balance
o Settlement or Compromise Offers
o Evidence of Subsequent Repairs
o Evidence of Bad Character
o Hearsay, statement made by someone other than while testifying at trial offered to
prove truth of matter stated in statement
 Can’t repeat someone else’s version of the facts in court, can’t cross-examine
declarant
 Exceptions
o Business Records
o Spontaneous Utterances
o Public Records
 If the statement is important part of the facts, it is repetition not hearsay
o Most matters not based on personal knowledge
 Exception is expert witnesses
o Privileged Matters, prevention of disclosure
 Admitted evidence that is not objected to becomes part of the evidence even if inadmissible

Jury Argument

 Things you can’t do

o Can’t distort the law
o Can’t use facts outside the record, no new facts not part of evidence
 Can make inferences from record
o Can’t appeal to passion or prejudice
 Organization
o Plaintiff
 Thanks
 Praises judicial system
 Definitions in charge
 Special Interrogatories
 Read it to the jury
 Translate it to the jury
 Marshall the evidence
 Tell the jury how to answer the interrogatories
 Short, unemotional answer
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o Defendant
 Thanks
 Praises judicial system
 Special Interrogatories with defense spin
 Answers two or three Plaintiff arguments
 Should be small part of argument
 Emotional basis
 Put together evidence with the law, IRAC method

Jury Instructions; Verdicts

 Two types of Verdicts

o General
o Special
 General Verdict is one long question
o Given every principle of law needed to solve the question
o Who wins, how much?
 Special Verdicts are questions about ultimate facts of case
 Judge can use discretion in Federal Court to use one or a mix of both
 Charge includes
o Basic instructions
o Definitions and Principles of Law
o Questions about the case
 Objections to charge must be made before jury retires
o If not objected to cannot be assigned as error on appeal

Trial to the Court Without a Jury

 No jury selection or jury charge

 Argument may be more informal
 To appeal on factual grounds, must have judge to make fact findings

Directed Verdict and Post-Trial Motions

Judgement as a Matter of Law

 On the undisputed evidence, movant is entitled to judgment as a matter of law

o No reasonable way to construe evidence to reasonably find for the nonmovant
o Mechanical motion, either entitled to it or not
 Made before jury verdict, formally called directed verdict
 Raised at conclusion of evidence
o Must make it before jury verdict for Appeal Process
 Motion may be renewed after jury verdict
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o Standard is the same

o Formally called Judgement Not Withstanding the Verdict

Motion for New Trial

 Discretionary to judge, correct miscarriages of justice

 Errors
o If factual findings of jury against great weight of evidence, even if directed verdict is not
appropriate
o Legal or procedural errors
o Newly discovered evidence
 Could not have found by the exercise of due diligence
 Major piece of evidence that would change the verdict
o Discretion of the Judge
 Review of granted motion for new trial on appeal is by abuse of discretion grounds
o Correction of judgment procured by fraud or mistake
 Made within 10 days, motion for new trial
 Within one-year, Rule 60 motion
 A. Judge can fix any accidental clerical errors made at any time
 B. Excusable neglect, mistake, fraud, newly discovered evidence
 After one-year, common law independent action
 Extrinsic fraud must be shown

Appeal

 Only final judgements are appealable

o Must be finalized to every party, claim, requested grounds for relief
o If there is anything that matter still pending in the case, it is not appealable
 Exceptions
o Certain interlocutory orders by statutes
 i.e. Injunctions
o Discretionary Appeals, Appeal by Certification
 Novel question about substantial ground for difference of opinion AND decision
on the matter would advance determination of the decision
 Trial judge and Court of Appeals certifies nonfinal judgment as appealable
o Make nonfinal judgement into final judgment
 Done with order disposing one of the claims
o Mandamus, allows Appellate Court to hear the matter is appeal would not be an
adequate remedy
 i.e. Discovery orders, waiting for appeal would defeat the objection
 Procedure
o Notice of Appeal must be filed within 30 days
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 Court can give extra 30 days, discretionary

o Must final cost bond
 Bond for the cost of appeals, $100
o Doesn’t stop judgment from being enforced
 Must file supercedious bond to stop execution
o Record must be filed within certain period of time
 Must request from court reporter and clerk
o Must file docket fees within a certain period of time
 Jurisdiction, over all district court decisions that don’t’ go directly to Supreme Court
o Original if one state sues another

Execution

 Federal rules adopt state collection procedures

 Having a judgment, the plaintiff has the court issue a writ of execution
o Order to the Sheriff to question the defendant about his property and seize the property
to sell
 Limitations
o Seizure must bear reasonable relation to judgement
 Must be in proportion
o Sheriff must subdivide property
o Debtor may specify order of sell
 Exemptions
o Home and business property

Post-Judgment Garnishment

 Used to get at debt owed to debtor by third party

 Technically a suit against a third party
o Separately numbered case
o Defendant must be given notice and opportunity to appear

Liens

 Abstract judgment, file a record in every county where real property is believed to be
 Places incumberance on all of defendant’s real estate
o Lien follows the property
o People can’t sell property without paying off the judgement
 Important ot have lien first in line

Turnover

 Invokes full panoply of courts equitable powers, must show adequate remedy at law
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o Property must not be readily executable

o Afraid defendant will get rid of property before it can be executed
o Property in foreign jurisdiction
 Can check records but can also use every discovery method
o Interrogatories, depositions, etc.

Provisional Remedies

 Used when there is fear that case may be uncollectable at the end
 Includes
o Attachment
o Pre-judgment garnishment
o Lis pendens
o Temporary restraining orders
 Can’t use seizure remedy if there is no prior adversary hearing
o Court may have overruled this, can be constitutional if based on sworn testimony