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Course: Civil Procedure Outline Winter 2003
School: University of Detroit
Year: 2003
Professor: Mavel
Course Outline provided by

Civil Procedure

Video Notes – Final Exam Review




Determining Jurisdiction – follow these steps exactly –


  1. Subject matter jurisdiction

  2. Personal Jurisdiciton

  3. Notice and opportunity to be heard – the defendant

  4. Proper service of process

  5. Does the court have venue

  6. If you are in state court does the defendant have a right to remove – but one way street cannot remove federal to state

  7. Have any of the above been waived by defendant




Diversity jurisdiction – Rules –


  1. Complete diversity needed

  2. You care about diversity on the day of the filing of the c/a – not the day the cars collided

  3. Citizenship = domicile – for domicile need and intention to stay in a state for the indefinite future – but once cross the border of a state and have an intent to remain indefinitely you become domiciled


If you have people that live in one state and work in other you have to determine where the center of gravity is – judgment call – where is the family – where are the major contacts that is how going to determine domicile


Corporations have two citizenships - 1. State of incorporation – 2. The corporations principle place of business, not where doing business but where is the company’s principle place of business – for GM its either MI or NY – two test to test where corporation principle place of business is – some courts say where the corp.’s decisions are made, other courts say, where does corp. where does it make its products or do its services – the muscle test


The unincorporated assoc. –the union – the partnership – these are citizens of each and every state of its members – the lawyer example


The representative party – executor or executrix, rep of incompetent, shareholder of derivative suit or class action – determine diversity based on citizenship of representative, not the represented – see 1332 – example action involving estate it’s the represented that determines jurisdiction


The matter in controversy must be greater the 75,000 exclusive of costs – must be at least 75,000 and one penny


You can add up the claims to make the 75,000 amount but cannot add up the plaintiffs the make the 75,000 min. amount


1367 – supplemental jurisdiction –

The key element here is the notion that a case or controversy – must embrace common nucleus of operative facts – Gibbs case – means if you are for example infringing upon Apollo 13 that is fed question – but have a state claim can add it on using 1376






Personal Jurisdiction –

Three tiers – is there a traditional base of jurisdiction –

  1. Territoriality – Pennyor – Burham

  2. Agency – can I get juris over your agent

  3. Domcile

  4. Consent – waiver or contract of adhesion – express consent

  5. Implied consent – cross border into state you impliedly consented to that state

  6. Doing business – Shoe case



Second tier – is there jurisdiction within the states long arm statute –


Has defendant done business in state, or left a spouse in state, or something under a statute


Some states give anything falling under due process a long arm jurisdiction instead of listing ways to hook people in under the long arm – without a specific statute probably in land of due process like Cali.


Third tier – Constitutional analysis –

Three cases here really need to know – Shoe, Hansen v. Denckla, World-wide Volkswagon


A state Con. can assert jurisdiction based on shoe, Min. contacts equaling fair play and substantial justice


Denckla – the contacts must be volitional, cognitive (must know) and beneficial


Volkswagon - Mere foresee ability not enough, the defendant must reasonably fear maybe dragged in forum of the state





Two New Yorker’s rent a car in Cali and go to amusement park, driving north in 1 and stop and Ma and Pa Jam and Jelly – now go back in New York – then they open the jelly – eat the jelly and get sick they want to sue the Ma and Pa – no traditional statute – maybe get under a long arm statute – no Con juris, no min, contacts or the other of the cases here – now what if they have an ad in the New Yorker Magazine, Ashai case – stream of commerce issue – some judges say mere stream of commerce not enough need more, mail order, advertising or something else


Notice and Opportunity to be heard –


Mullane case is controlling here – notice must be reasonably calculated under circumstances to give actual notice – certain type of notice no problem – in hand, mature age, and so forth no problem – is the notice given in the best most efficient method possible


Venue –

Three things to look for –

  1. Has the federal venue rule been satisfied - §1391 – estbl venue pattern for federal cases

  2. Transfer of venue – every system has venue transfer provision – which say – you can transfer venue in the interest of justice – means is there another place that is a lot more convenient – not a little more, but a lot more, significantly - §1404a – there is a clause in there that limits ability to transfer to those courts in which the action could have been brought originally – is the defendant subject to personal jurisdiction in that court trying to transfer to

  3. Forum non-covienes – this is not a convenient place – a federal court can transfer to any other federal court, but never to a state court

  4. Removal - §1441 – you cannot remove anything you could not originate in a federal court – to remove a case must have a federal question – you cannot remove on the bases of a federal defense



Wavier –


You never waive subject matter jurisdiction – you can assert it at any, at any time – you can raise it for the first time in US Supreme Court


A federal court will throw out as soon as it realizes it does not have subject matter jurisdiction


Waiver of personal jurisdiction, notice, process, venue, - must assert these early – if not asserted early they are waived – how early – all these must raised by pre-answer motion or inserted in the answer or you waive them – that’s it






The law governing in a Federal court –

Governing law in a diversity action -------


4 major cases in this area – Erie, Guaranty, Bird, and Hanna


Erie –

In a federal diversity action, a federal court applies the substantive law of the forum state


Guaranty –

Whether a New York court sitting in diversity applied the New York state statute of limitations or was the federal court in New York free to invoke centuries of federal equity practices and use laches – Sup court said have to apply NY statute of limitations – it is outcome determinative – the function of federal court is to achieve the same outcome as the state court across the street – suppose to achieve the same results – an equitable administration of the law

Choice of law – a New York federal court would apply the same choice of law as state court – that would be outcome determinative


Bird –

Is this worker covered by workers comp law – if so he can’t sue has to workers comp – in S. Carolina this was a judge question – in fed diversity action there is tradition of jury trial – so is federal court free to give this question to jury or can judge decide this – here we have a counter veiling federal policy – this is worth something on the scale – must balance the federal policy with Carolina policy – next its not a mathematically certainty of outcome differential – s/l is but here jury v. judge is not necessarily outcome determinative


Hanna –

An application of Bryd – loosely speaking – in effect the US sup said the fed rules of civil procedure trump competing or contrary state practice and do not care of out-come determinative under the supremacy clause – this includes fed rules of evidence – if federal rule does not violate the C, and federal rule applies you go federal


Pleadings –

Standard of particularity that is demand – rule 8 – short and plain statement showing entitled to relief – no facts, or conclusions


In fed rule 9 you have a special pleading rule – pleading of fraud – heightened pleading burden when charge is fraud because it’s a nasty allegation that is easy to make – must have circumstances pleaded with particularity


Amendments of pleading rule 15 – modern procedure allows amendments with abandon – given one free shot at any point prior to responsive pleading – pre-trial or at trial – leave shall be freely granted in the interest of justice – that is true even at trial – you can amend unless the other party will be unduly prejudiced – we will accept the late amendment if there is a reason and it is not negligent – or other party will be unduly prejudiced



Relation back of amendments – under certain circumstances will not only allow you to make the amendment and make believe that it is dated back to day of filing to do end run around the statute of limitation – will do it when the amendment material comes from base transaction as original material – same t/o, transaction and occurrence – harder to relate back when changing parties then changing claims – the poor clown may not have had notice – so if changing parties, that individual must have known should have been sued – this is used when you need to add a claim when s/l has run


Joinder –

This is a label given to nine pieces so must reconcile


Joinder of claims - impleader

Permissive Joinder of parties – who may you join

Compulsory Joinder of parties – who must you join





3rd party claims





Class Action



Joinder of claims – two rules – minority rule, is that a plaintiff may join against a defendant all claims arising out of a transaction or occurrence – what claims are do not matter just same core – the federal rules say – a plaintiff may join any claims he has against a defendant – the federal rule is infinitely permissible, severance rule – you may sever a piece simple to avoid confusion

Federal rules permit the joining of any claims, joinder is proper


Permissive joinder of parties – who may I join – here the rule is universal – you can join plaintiffs or defendants if their claims or liabilities arise from same transaction or occurrence and there is a common question of law or fact – two cars collide the collusion is the transaction the common question is a question of negligent liability


Compulsory joinder – r. 19a and b – who must I join is the trouble zone – two propositions here – you got a bunch a people in the action and one on the outside, need to figure out if need him – do I need the outsider in order to give effective relief to the insiders, can I do job without him or do I really need him – if going to grant s/p to a contract you need everybody to the contract if going to reform the K you need everyone to the K – second proposition – you want outsider in if the outsider is going to be prejudiced by being outside – five farmers put wheat in a silo and it blows up, now have insurance policy for 100,000, 4 of 5 come in an ask for proceeds the problem is the 4 may consume whole policy and the farmer outside will get nothing unless bring him in, common sense – want to protect the outsider

There is a trap though – joint tortfeasors are never compulsory parties – if I walk down street and three cars collide and hit me I am not obliged to join all three, I can sue 1, or 2 or all 3 up to me – they are joint tortfeasors but this is a short hand for several liability


Now what if 5th farmer can’t be joined because his presence would destroy diversity or cannot get personal jurisdiction, shoe – denkla, woodsen power to reach – what do you do if realize want him – before would have to dismiss for want of indispensable party, now in modern courts do not do this – now you proceed without the party and try to give partial relief – will allow 4 to claim against the policy and put the rest of money in escrow for the 5th party – this is shaping the relief




Counter-claim – a defendant returning firing – you sue me, I sue you – world of counter claims two parts – compulsory and permissive


Compulsory counter claim – a claim that arises out of same transaction or occurrence or series of – if defendant has this kind of counter claim – the defendant must, mandatory must asserted it- if defendant fails to do this – he will lose it, cannot bring a second action, precluded


Anything that is not a compulsory counter claim is a permissive claim – defendant is obliged by the compulsory rule – if not the same t/o then can assert separately if want – 1376 – you need not have subject matter jurisdiction over a compulsory counter claim that arises out of same t/o, transaction or occurrence – coats tails


Permissive counterclaims require their independent subject matter jurisdiction


Cross claims – claims between co-defendant or co-plaintiffs – walking down street three cars hit me – each cross claims against the others – driver 1 against driver 2 – cross claims are ok if arise from same t/o of the base claim – no suck thing as a compulsory cross claim – always permissive – but limited to the t/o – 1367 applies


3rd party claim – the action over for indemnification, contribution – finger pointing - A buys a pair of PJ’s and goes home and puts them on – then lights a cigarette and burns the PJ’s and her – goes to court and sues the store – its brings 3rd party action against mfg – bring in fabric finisher – they bring in grade goods guy mfg, they bring in flam retarded chemical mfg – no limit – rule not phrased in t/o terms – but all this really is t/o – this brings in a new party the other two above really do not – so have a jurisdiction question – can you maintain personal jurisdiction – here you can get 1367 here to – but have to watch out – 1367 does not extend to claims plaintiffs may assert against the 3rd parties








Class action – you test diversity only in terms of the representative of the class – the plaintiff needs a claim of more than 75,000 from each member of class – they way get around is there is a mega – punitive damage allegation that is held jointly among the members – now go to certification – r. 23 – in class action get a figurative day in court – reasons for class action – numoristy – in all class actions all class members must be bound together by common question of law of fact – class rep must be typically of class req. – the class rep must be an adequate representatives, this is a due process req. – Hansberry v. Lee is the big case – here you had a subdivison and all of the owner of all of the lots have a racially restrictive covenant – and one owner was trying to sell owner to a black so a class action was brought on behalf of all owners and the courts enforced – and this was not rep. Because no one was rep. The black members of the class – w/o adequacy of rep. Nothing is binding – make sure class is homogenous – that is speaking with single voice, the sub-groups will need independent representation


Federal rule 23 – say in damage class actions – like a class of all people who received breast implants, or all smokers or all asbestos effected people – damage class actions, for money – not only must you have common question of law or fact, but the must pre-dominate – if bring action to desegregate a school or some injunctive relief – one common question is enough – but if I lead class of smokers – I must be able to show court the common question pre-dominate – because divesting people of their ability to sue you need hyper-commonality – must show class action best route – like the smokers, will not each sue for $100 the class action is obviously superior – but Supreme court said cannot bring class action on behalf of all people that were infected by bad blood, because each of these people have a claim of a million or more and the class action is not superior in this type of thing – you also must give notice to class members – Mullane


The notice requirement here is individual notice to each known member


Tape 2 of 2:


Discovery –

Rules 26 –37


What is the scope of discovery – what is it you can get at


What can you do at depositions?


Work product – materials prepared in anticipation of litigation – Hickman v. Taylor



Scope of discovery – some states continue to limit discovery to what is admissible at trial, this is a minority rule – the majority rule is the federal rules of civil procedure which is the broadest conceivable discovery found – critical passage r. 26(b)(1) – anything that is relevant to the subject matter of the action, not just issue in case, no burden of persuasion rule, nor the matter be admissible at trial - not a ground to object that not admissible at trial – as long as the matter sought is reasonable calculated that leads to something that is admissible – almost everything is basically discoverable – but be careful of limitations – e.g., assume two car collision plaintiff disposing defendant driver, many quest of state of repair and driving drunk – then plaintiff says how much do you earn, do own home, objection, can defend by saying inquiring into assets to determine economic value of claim – even though may have some pragmatic reasons to know net worth but is reasonably calculated to lead to something admissible so beyond the scope of discovery – now if seeking punitive damages then these questions are relevant because calculated punitive damages need the net worth to figure them out


Next – tell me what you know about one of the discovery devices – like depositions, interrogatories, or document or tangible thing discovery, mental and request for admissions


Physical or mental examination arm most testable – there are pre-requisites to this rule – this is the only one that requires a motion the others operate by notice, litigant to litigant, and must show good cause for this, you have to show the person condition, physical or mental is in controversy, limited to parities, privities, and people under legal control of the party – if you have a eyewitness says the light was green, you cannot make him submit to an exam not a party this is rule 35


Work product – material prepared in anticipation of litigation – you want to encourage everyone to discover and prepare – but if knew these could be grabbed by opponent then will not prepare – so this stuff is protected, anti-parasite principle here – these are immune in a qualified way, this is not a privilege – what is in anticipation of litigation – an event has occurred that will likely produce a law suit – normal record keeping not protected by the immunity – can be done by agents and its all work product – this can be over-powered – situations in which the material is simply not available to the discovering party so we revert to basic principle of American discovery – equal access to all relevant data – what is unavailability that would over-power, the witness is dead, hostile or away – and there is recorded statement he gave a year ago or whatever


Hickman type 2 – super work product – mind of lawyer, his opinion, strategy, mental impressions – that stuff is basically absolutely immune from discovery – can’t ask if Jones is telling the truth are you relying on doctrine of X – you can’t get into mind of attorney – we immunize mind of lawyer from discovery because we are committed to an adversary system – committed to the fact that each person has a role, advocate, judge whatever – if ask the mind questions making him a witness and taken out of role of advocate


Summary judgment -----


Flirtation device – filters out cases not worth proceeding – why do we have trials, one reason for trials to resolve disputed questions of fact – r. 56 – light most favorable to the non-moving party


Trial -

Generally means jury trial – 7th amendment, right to jury trial in federal court – you get it in damages case – do not get in equity cases – s/p action is simple an injunction action in a K action – most likely testing question based Beacon theaters – deals with what do you do about jury trial right in a case that is a mixture of law and equity – what do you do – 7th amendment should grow – Justice Black said right to jury attaches to issues not only cases, to figure out what to do in mixed case – you have to itemize case and separate the issues into three categories – first the legal ques which go to jury 2. then pure equity ques they go to judge and third law/equity and said if give to judge in equity mode first then they are collaterally estopped on law side and jury never gets – these should go to jury not judge for maximum fairness – next question is damage so go to jury, next on these facts is plaintiff entitled to injunction goes to judge – under Beacon theaters 2/3 of case goes to jury and only 1/3 to judge – in past whole thing went to judge – common question goes to jury



Beacon only works in the federal courts – the states courts are divided on the Beacon theater issue – civil jury right never incorporated 14th amend and states are allowed to go by the Beacon issue


Post trial motions –

3 motions –


New trial

Directed Verdict




The directed verdict and JNOV – judgment as a matter of law = directed verdict and we have renewed motion for judgment as a matter of law = JNOV ----- most have ignored the new terms


These Motions tend to be made as a group – if you see being asked two or three of them need to when writing that you pick them up and lay them down one at a time


New trial motion – a cleansing motion, designed to clean up errors – consequence is that the case is re-tried – if there was error, if harmless do not get a new trial – anyone can commit error, even judge – if a material error committed then you can get a new trial


New trial – judge has ability to declare new trial if verdict is simply inconsistent with great weight of evidence – judge must really believe clearly not a proper verdict


At the close of case lawyers make new trial motion automatically – the judge may deny or grant – judge does not want to do this twice –consequence of granting motion is must sit through it again – so may grant a partial new trial – may just retry liability or just retry damages as long as the issues are seperable – in commercial cases generally can do this – torts its tough


Additor v. Remittur

Jury finds for plaintiff for 30,000 plaintiff’s lawyer pissed does not cover medical – and says this is way off as a verdict the judge is likely to call the defense lawyer and say, that is one hell of a verdict, plaintiff wants new trial and have to grant unless you can convince client to sweeten the pot, added up to 300,000 – if defense agrees then judge orders motion for new trial denied on condition that defense agrees to higher amount – the reverse is true, 100,000 for a new toe so judge calls plaintiff to remit and accept 25,000 or new trial – remittur – remit downwards – motion for new trial denied unless plaintiff allow entry of judgment for 25,000


In federal courts additur not allowed but remittur is allowed


Directed verdict – happens post trial but pre-verdict, before jury back – motion for judgment as a matter of law – if make that motion you are saying this case is not jury worth so direct a verdict – so why do we have juries – we have them for resolutions of facts – basically saying no genuine dispute of fact – this is basically the summary judgment motion – the directed verdict motion is simple the summary judgment motion that has aged a bit – standard exactly the same – is there a genuine issue of material fact – no reasonable jury could find for the non-moving party – means no fact worthy of jury’s attention – the bend over backwards applies – light most favorable to the non-moving party – this is a terminal motion that is a major difference her from summary judgment


JNOV is a renewed directed verdict motion – you have made the directed verdict motion – jury has come back, found against you – now asking for a verdict not with standing the verdict – the jnov is more efficient – because if reversed simple enter the jury verdict – but if directed verdict reversed then have to re-try case


JNOV - Two consequences – terminal motion, and also takes away the money



Res Judicata –

Collateral estoppel = issue preclusion


Res Judicata – Restatement of Judgments calls it – claim preclusion ------------


Once you have litigated a cause of action on the merits it cannot be re-litigated – you only get to go around once


It has nothing to do with whether the first adjudication was right or wrong, had your day in court good-bye


Only two issue in Res – what a cause of action and second – what’s on the merits mean –

Cause of action – something rough co-incident to a transaction or occurrence - res Judicata creates something equal to compulsory joinder or counter claim have to bring all your causes of actions occurring out of a core of operative facts all at once – you cannot split you causes of action


On the merits – does not mean dismissal for lack or jurisdiction or failure to join a party


Collateral estoppel – Restatement calls it issue preclusion – by definition it’s a different cause of action – you have an issue that has been adjudicated in the first – and if necessarily adjudicated you cannot re-litigate that issue – is excises an issue and says it has been litigated – I proved in trial one that you were negligent so you are collaterally estopped from denying you were not negligent


Mutuality of estoppel – Pan Am flight crash – passenger 1 sues and loses then comes passenger two – can Pan Am say collateral estoppel – passenger two has never had his or her day in court and cannot be bound by the judgment – Assume passenger 1 this time wins – now passenger two shows up and wants to take advantage and impose collateral estoppel, issue preclusion against you – today mutuality is dead - Burnhart case – today what say is following, in action 1 you were found negligent – here is action 2 – you knew there would be other claims against you there was more than one passenger – you are now bound and other passengers can take advantage of that conclusion, offensive non-mutual collateral estoppel – once fairly litigated that is it ---









































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