Virginia Bar Exam Blog
Saturday, July 08, 2006
  Civil Procedure Outline

- Two steps:
o Satisfy long-arm statute if applicable
o Satisfy Due Process
- For Due Process must get ONE of:
o Domicile in state
o Present in state when served
o Consent to jurisdiction
o MAYBE put product into the stream of commerce that caused harm in forum state (Asahi)
§ Split of authority as to whether this is enough
o Approximation of presence in state sufficient for jurisdiction:
§ Contacts factors:
· Minimum contacts with forum state, resulting from purposeful availament
· Foreseeability that D would be haled into court there
§ Weighed against Fairness factors:
· Relatedness between the minimum contacts and the harm done
· Forum not so inconvenient as to put D at a severe disadvantage
· State’s interest in providing a forum for its citizens.
- If Due Process satisfied, the forum need not be convenient.
o Exception: If location puts D at a SEVERE disadvantage in the litigation.
- In rem jurisdiction
o Contact must still meet the Due Process test
o Property at issue is present in the forum state

- Diversity jurisdiction
o Requirements:
§ Amount in controversy EXCEEDS $75K AND
§ Complete diversity
o Domicile for diversity purposes:
§ Individual
· Arrival in state
· With intent to remain indefinitely
§ Corporation
· ALL states where incorporated AND
· The one state where principal place of business is located
o Use “nerve center” (HQ) unless all “muscle” activity all in one state
§ Unincorporated association
· Citizen of every state where a member is a citizen
§ Decedents, minors and incompetents
· Where they are citizens, not executor/guardian/etc.
o Amount exceeding $75K
§ Not counting costs
§ Must be a good faith estimate
§ Not OK unless it is clear to a legal certainty that P could not recover more than $75K.
§ Actual award of less than $75K is irrelevant for subject matter jurisdiction, BUT P may be liable to pay the D’s costs even if she wins.
§ Injunctions – measure value by EITHER:
· Value to P
· Cost to D to comply
§ Aggregation
· One P can aggregate all the claims against one D.
· If suing more than one joint tortfeasor, need not divide number among number of tortfeasors.
· Class actions: Split of authority:
o 9th Circuit: OK if only REPRESENTATIVE’S claim is over $75K
o Other courts: EVERY class member’s claim must be over $75K.
- Federal question jurisdiction
o Well-pleaded complaint must be based on a right or interest grounded in federal law
§ P is enforcing a federal right
o Whether federal DEFENSES will be raised is irrelevant
o No diversity/amount in controversy requirements
- Supplemental Jurisdiction
o When underlying claim is a Federal Question
§ Claims joined by PLAINTIFF
§ That arise from the same “common nucleus of operative fact” as the underlying claim
§ Court has discretion to hear or not hear:
· Was federal question dismissed early in the proceedings?
· Is the state law claim complex?
· Would state law issues predominate?
o When underlying claim can be either FQ or Diversity
§ That arise from the same nucleus of operative fact as the underlying claim
§ Court has discretion to hear or not hear.
- Removal
o Only Ds may remove
o ALL Ds must agree to remove
o Must remove to federal district that embraces state court where it was originally filed
o For diversity cases only: Can’t remove if ANY D is a citizen of the forum state.
o Must remove no later than 30 days after service of the first removable document.

- Venue
o In diversity cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where all Ds are subject to personal jurisdiction
o In all other cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where any D can be found.
- Residence
o Individuals à residence = domicile
o Corporations reside in EVERY district where they would be subject to personal jurisdiction.
- Improper or inappropriate venue
o Transfer
o Forum Non Conveniens
§ Where transfer is impossible b/c it’s a foreign country or state system
§ Factors court will look at:
· Public factors
o What law applies
o What community should be burdened with jury service
o Need for fact finder to visit site of events
· Private factors
o Where witnesses and evidence are

- Erie Doctrine
o Federal courts must apply state substantive law to nonfederal causes of action
o Federal procedural rules can be applied
- Steps of analysis:
o Is there a federal law on point that directly conflicts w/ state law?
§ YES à Apply the federal law as long as it is valid (FRCPs are presumed valid so long as it is arguably procedural)
o If no federal law is on point, but the judge wants to follow federal practice/customs, she can only do so if it is truly procedural and not substantive. If substantive, must apply state law.
§ Steps to analyzing if it’s substantive:
· Would it determine the outcome of the case?
o If yes à probably substantive
· Does either federal or state system have a strong interest in applying its rule?
· Will applying the federal rule cause people to flock to state court (forum-shopping)?
§ Well-established as substantive in these situations:
· Statutes of limitations
· Rules for tolling statutes of limitations
· Choice of law rules

- Ways of service:
o Papers given to P personally
o Process left at Ds usual place of abode with a person of suitable age and discretion who resides there
o Service on D’s agent
o Process mailed to D, who returns waiver of formal service form
§ If refuses to waive, may be charged with cost of personal service
o Any way permitted by state law in either:
§ The state where the federal court sits OR
§ The state where service is being made.
o Immunity from service when D in state only to appear in another case.

- Complaint
o Statement of subject matter jurisdiction
o Statement of the claim
o Demand for relief
o Special matters that must be pleaded with particularity:
§ Fraud
§ Mistake
§ Special damages
- Defendant’s response
o Answer
§ Respond to allegations of complaint (admit, deny, or lack sufficient info)
§ Raise affirmative defenses
o Rule 12(b) motion
§ Waived if not raised in first response:
· Lack of personal jurisdiction
· Improper Venue
· Insufficiency of process
· Insufficient service of process
§ Other ones
· Motion for a more definite statement (must be filed before a responsive pleading)
· Motion to strike
· Lack of subject matter jurisdiction
· Failure to state a claim
· Failure to join indispensable parties
- Counterclaim
o Compulsory
§ Arises from the same T/O as P’s claim
o Permissive
§ Against the same P, but from a different T/O
o Supplemental jurisdiction (if needed) for compulsory
- Cross-claims
o Offensive claims against a co-party
o Must arise from the same T/O as original claim
o Not compulsory
o Supplemental jurisdiction (if needed)
- Amendments and supplemental pleadings
o P can amend once before D answers as a matter of right
o D can amend once w/in 20 days of serving his answer
o Further amendments at discretion of court to allow
o Amendments relate back to original filing date
§ BUT if you are changing the D, only relates back if you sued the wrong D but the right D knew about it.
- Rule 11
o Certification
§ Must sign all papers certifying that:
· To the best of her knowledge AND
· After a reasonable inquiry
· The legal contentions are either warranted by law or a nonfrivolous argument for changing the law.
§ Paper is considered re-certified every time it is “presented” to the court
o Sanctions
§ Party alleged to have violated Rule 11 gets a 21-day grace period to fix the problem.

- Joinder of parties
o Compulsory joinder – necessary parties should be joined if possible
§ Necessary parties:
· W/o them, court can’t grant complete relief
· Absentee’s interest may be harmed if she is not joined
· Absentee claims an interest that could subject a party to multiple obligations.
· Joint tortfeasors are not necessarily necessary parties!
o Permissive joinder – if joinder of necessary party not feasible, court must either proceed without absentee or dismiss.
§ Whether to proceed or dismiss:
· Is there an alternative forum available?
· What is the actual likelihood of prejudice?
· Can the court shape relief to avoid that prejudice?
- Joinder of claims
o Class actions
§ Requirements:
· Class so numerous that joinder is impracticable
· Common questions of law or fact
· The claims of the representative are typical of the class claims
· Representatives will fairly and adequately represent the interests of the class
· If damages class action:
o Common questions must PREDOMINATE
o Class action must be the best way to handle dispute
o Must provide notice to all reasonably identifiable class members, with ability to opt out
§ Types:
· Prejudice – class treatment necessary to avoid harm to other members of class (race to courthouse)
· Injunction/declaratory judgment
· Damages
§ Once certified as a class, court approval required for:
· Settlement
· Dismissal
o Intervention
§ Absentee wants to join as either a P or D.
· Court can realign if it thinks she joined on the “wrong” side.
§ Intervention as of right
· Her interest may be harmed if she can’t intervene, and she’s not adequately represented now
§ Permissive intervention
· Her claim or defense and the pending case have at least one common question.
§ Supplemental jurisdiction (if needed) for intervenor
· Won’t usually get it if intervenor will mess up diversity, even for intervention as of right.
o Impleader
§ Claims involving a third-party defendant brought in by D
§ Must be for indemnity or contribution
§ Other claims
§ Supplemental jurisdiction (if needed) for these
o Interpleader
§ Person with property wants to bring everyone who claims that property into one lawsuit
· Court can enjoin anyone who doesn’t participate from suing elsewhere
§ Rule 22 interpleader
§ Statutory interpleader

- Types of discovery
o Depositions
o Interrogatories (to parties only)
o Requests to produce
o Physical or mental examinations (requires court order)
o Requests for admission
o Required disclosures
- Scope of discovery
o Anything reasonably calculated to lead to admissible evidence
o Privileged matter not discoverable
o Work product or trial preparation materials not discoverable
§ BUT can discover facts (not mental impressions) if there’s no other way to get the info and there is exceptional need
- Enforcement of discovery rules (sanctions)
o Total or partial failure to provide discovery: Motion to compel plus costs and certify good faith attempt to obtain discovery.
o Sanctions include:
§ Treat matters as admitted
§ Disallow evidence on an issue
§ Establish the issue adverse to the violating party
§ Strike the pleadings
§ Dismiss the cause of action or the entire action (bad faith)
§ Enter a default judgment (bad faith)
§ Hold in contempt
· NOT available for refusal to submit to a physical or mental exam

- 12(b)(6) – failure to state a claim
o Assuming all allegations are true, would P be able to win a judgment? If no, dismiss.
- Dismissal
o Voluntary
§ P can dismiss once without prejudice à second, probably can’t refile even if first filing was in state court.
o Involuntary
- Summary judgment
o The moving party must show:
§ No issues of disputed fact AND
§ Entitled to judgment as a matter of law
o Partial summary judgment may be granted

- 7th amendment right to jury trial for:
o Actions at law
o NOT equitable actions.
o P must demand a jury trial
- Jury selection
o Each side has unlimited strikes for cause
§ Each side gets 3 no-cause strikes
§ Strikes MUST be used in a race and gender-neutral way
- If there is a jury, can its verdict be disregarded?
o Judgment as a matter of law
§ By D à at close of P’s case
§ By P à at close of all evidence
o Renewed motion for judgment as a matter of law
§ Must have moved for JMOL initially
o Motion for new trial
§ Grounds:
· Prejudicial error at trial makes judgment unfair
· New evidence that could not have been obtained by due diligence for the original trial,
· Prejudicial misconduct of party, attorney, third party, or juror
· Judgment is against the weight of evidence

- Final judgment before appeal can be taken
o Nothing left for court to do on the merits
- Exceptions to the final judgment rule
o Pretrial orders involving temporary remedies
o Final judgment on collateral matters
o Interlocutory orders of great importance that may be determinative of the ultimate decision

- Res Judicata
o Claim preclusion
o Already settled by a judgment on the merits
- Collateral estoppel
o Issue preclusion
o Issue must have been actually litigated and essential to the first judgment
- Who is bound by the judgment?
o Can only assert collateral estoppel AGAINST someone who was a party to the original action (required by due process)
o BUT some jurisdictions allow collateral estoppel to be asserted BY someone who was not a party to the original case if the other party had a fair and full opportunity to litigate it in the first trial.
§ When used defensively: A sues B and C, separately, as joint torfeasors. In action Aà B, court finds A was contributorily negligent. In A à C, C wants to collaterally estop on issue that A was contributorily negligent.
§ Can also be used OFFENSIVELY if not UNFAIR. Factors:
· Party had full and fair opportunity to litigate in first case
· Could foreseee multiple suits
· New party could not have joined easily in first suit
· There are no inconsistent judgments on record.
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May 2006 / June 2006 / July 2006 /

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