CivPro Attack Outline
CivPro Attack Outline
CivPro Attack Outline
Personal Jurisdiction
a. Statutory
b. Constitutional
2) Notice (Service) 4
3) SMJ 1331, 1332, 1367, 1441/46/47
a. DivJ, FQJ, Supplemental, Removal
4) Venue 1391, 1404/06
5) Erie Doctrine
6) Pleadings 8, 11, 12, 15
a. Complaint, Response
b. Amendments
7) Joinder 13, 14, 18, 19, 20, 22, 24
a. Permissive Claim J, Counter-, CrossClaim, Permissive Party J,
Compulsory, Impleader, Intervention,
Interpleader, Class Action
8) Pre-Trial Adjudication 41, 12, 56
a. Voluntary/Involuntary Dismissal,
12(b)(6) Dismissal, Summary
Judgment
9) Preclusion Doctrines
1)
NOTICE RULE 4
Served by person non-party at least 18
Must be served w/in 90d w/ process:
summons + complaint
Serving an Individual
1) Personal Service
2) Substituted Service
a. Dwelling/usual place of abode
b. Suitable age/discretion, resides there
3) Serve s agent
Serving a Corporation
1) Officer or managing or general agent
Ct. can serve however/wherever state ct. can
Waiver of service
1) can request waive service
2) must have good reason to not waive or
else pays cost
3) If waived = 60d to respond to complaint
instead of 21d, 90d if outside US
Notice must be reasonably calculated to
inform D newspaper = last resort (Mullane)
SMJ
(assess for every claim filed in fed ct!)
Diversity Jurisdiction (DivJ) 1332
1) Complete Diversity Rule: , all s
citizens of diff. states than s
2) Diversity of Citizenship
a. Individual: US citizen and where
domiciled (physical presence in state +
Intent to remain)
b. Corp: dual citizenship PPB (nerve
center) + state of incorporation
3) Amount in Controversy >$75K
a. Cannot aggregate if multiple parties
unless joint claims
Fed. Question Jurisdiction (FQJ) 1331
1) Case arises from under fed law
2) Well-Pleaded Complaint Rule
a. Is the Cause of Action st. or fed.?
i. If fed. = FQJ, If st. = go to (b)
b. State CoA incl. fed. ingredient?
i. No = no FQJ, Yes = FQJ
c.
Matter of fed. concern?
i. Actually disputed/substantial?
ii. Affect balance b/w fed. & st.?
Supplemental Jurisdiction (SJ) 1367
1) Does 1367(a) grant SJ?
a. YES if claim arises from same
case/controversy; or, fed hook
b. Unless (b)
2) 1367(b) takes away SJ = NO SJ (only
in diversity cases):
a. claim against party joined by R:14,
19, 24 (StarKist/Allapattah 20, 23)
b. Claims by R:19 compulsory s
c.
Claims by R:24 intervener s
Removal 1441, 1446, 1447
1) All s must agree
2) cannot remove if it's a diversity claim
in state of citizenship (needs SMJ)
3) 30 days to remove, runs when served
4) Lawsuit is removed to embracing fed. ct.
VENUE
Venue in Div/non-Div cases 1391
1) where any lives if all in same state
2) where substantial part of event occurred
3) FALLBACK: where any is subj. to PJ
(div); or where any can be found (non)
4) residency
a. individual: domicile
b. corporation: wherever subj. to ct. PJ
JOINDER
(assess SMJ for every claim filed in fed ct!)
Proper Parties
Permissive RULE 20(A) IPJ/SMJ/V?
1) Parties joined as s/s if
2) Assert right to relief that arises from
same T/O or series of T/O
3) At least one common Q of law/fact
NOTE: misjoinder dismissal;
ct. should sever (R21)
Compulsory/Necessary RULE 19
Necessary/indispensable/required party?
1) No complete relief w/o absentee
2) Absentee interest would be impaired
3) Absentee interest would be subj. to
multiple/inconsistent obligations
NOTE: joint tortfeasors not necessary!
Joinder feasible?
1) IPJ ok? Retain SMJ? (check DivJ)
a. YES: party must be joined
2) NO: does court dismiss/proceed?
a. Prejudicial? Adequate judgment? Most
impt: will have remedy?
3) If party determined indispensable and
cant be joined, then court dismiss (rare)
3P Practice
Impleader RULE 14 SJ or SMJ
1) 3P may be liable for all/part orig. s
claim against orig. , file complaint
2) Timing: w/in 14d, or need ct.s permit
3) SJ governs for 3P to 3p (orig )
4) against 3P? NO SJ (R14 not ok!),
needs SMJ (same T/O as orig. claim)
Intervention RULE 24
1) Party assert or defend claim (check SMJ)
2) Motion must be timely = not disruptive
3) Right: absentee legal interest impaired if
not joined; adequate rep?
4) Permissive: absentee claim/defense has
at least 1 common Q of law/fact
Plaintiff Claim Joinder
Permissive Claim Joinder RULE 18
1) can join all the claims (SMJ)
Defendant Claim Joinder
Counter-Claim RULE 13(A), (B) SJ?
1) Compulsory 13(a)
a. Against opposing party, no new party
b. Same T/O as s claim
c.
Must assert or waive
2) Permissive 13(b) IPJ/SMJ/SJ?
a. state any claim against opposing party
b. R18 only works for party once they
successfully add claim via R13(a)/(b)
Cross-claim RULE 13(G) - permissive
1) Against co-party (same side of v.)
2) Same T/O as underlying dispute
Interpleader RULE 22, 1335
Stakeholder force all potential claimants into
single case, party may file defensive if sued
first (through R13 counter-claim)
1) Rule (narrow): complete div, no deposit,
status quo IPJ/SMJ/V, rare injunction
2) 1335 (broad): minimal div, need deposit
stake; AIC>$500, 1397 for V, 2361
SOP, IPJ, and injunction possible
Class Action RULE 23
Pre-reqs for certification:
1) Numerosity
2) Commonality
3) Typicality
4) Adequacy
CASE LIST
Bands Refuse: judge=neutral arbiter, pre-trial
hearings, joinder, pleading amendmts
IPJ - see PJ chart p. 5-6!
Notice (Service) 4
Mullane: reasonably calculated to inform
SMJ 1331, 1332
FQJ
Mottley: FQJ must arise under fed law
Osborn: fed ct. can hear if fed element/issue
Skelly Oil: need fed law dispute b/w and
Vornado: no plead fed counterclaim
Merrell Dow: state law w/ fed issue, mere
presence of fed issue does not confer SMJ
Grable: IRS notice, 4-pt test upheld SMJ
DivJ
Strawbridge: complete diversity for 1332(a)
SJ 1367
Gibbs: common nucleus, same case/contro
Owen: R14 need complete diversity
Alla/StarKist: SJ over addl s who fail to
satisfy AIC ok if still diverse, named AIC >
$75k, addl claims if same case/contro
Removal 1441/46/47
Venue 1391, 1404/06
Atlantic Marine: transfer to enforce forum
selection clause (FSC), uphold K validity
Ricoh: fed 1404 trumps state ban on FSC
Reyno: forum non conveniens test
Erie Doctrine - see Erie chart p. 27!
Pleadings 8, 11, 12, 15
Complaint
Conley: notice plead, no set of facts
Swierkiewicz: short & plain statement
Twombly: plausibility pleading
Iqbal: no legal conclusions, no fact detail
Kopmann: alt. plead ok, honesty in pleading
Tellabs: PSLRA specificity/heightened pleading
Zuk v. EPPI: sanction, inquiry into fact/law
Response
Darrah: default set aside for good cause
Crompton: ineffective denial = admission
Amendment
Krupski: relate back, new shouldve known
Crompton: no amend, would be prejudiced
Joinder 13, 14, 18, 19, 20, 22, 24
Proper Parties
Kedra: police brutality, allow party joinder
Insolia: smokers, no joinder, not same T/O
3P Practice
Clark: 3P complaint proper for indemnity
Augenti: 3P & orig. suit need causal connect
Grutter: aff. action, intervention of right
Claims
Wigglesworth: labor union, permissive CC
needs independent jdxl grounds
Interpleader
SF v. Tashire: inappropriate, injunction to
stake only, all suits need judgment
Class Action
Hansberry: RJ no apply to absent class member
if inadequate rep. in class action
Walmart: need commonality
Reno: aliens, appropriate injunction class
Castano: state law differ, mass torts disfavor
Preclusion Doctrines
Moitie: RJ bars re-lit unappealed final jdgmt
Manego: same claim precluded (T/O test)
Lil Blue Goose: est. CE materiality grounds
Blonder Tongue: DCE ok (shield)
Parklane: offense OCE (sword) 2-pt test
Kremer: 1738 fed look at state preclusion law
Marrese: implied repeal 1738 only if in fed
Semtek: R41(b) re: preclusion gets a new
meaning: w/ prejudice FQJ=on merits,
DivJ=depends on state law