1. Right Court? a. Personal Jurisdiction (PJ) = Need personal power over the parties. i.

In personam = D lives or is present in the forum or has done something in the forum ii. In rem and quasi in rem = jdx over defendants property. b. Subject Matter JDx (SMJ) = Power over the case. i. Diversity of Citizenship cases (test for diversity when case is filed) 1. Between citizens of different states (complete diversity, no same diversity across part lines) or between a citizen of a state and a citizen of a foreign country AND. a. US citizen = state of domicile, (presence and intent to make permanent home.) b. Corp = citizen where incorporated AND state with principal place of business. c. Unincorp assoc = where citizenship of all members rests. d. Decedents, minors, or incompetents = use their citizenship, not their reps. 2. Amount in controversy exceeds $75,000. (not counting interest on the claim or costs of litigation) a. If in good faith ok, unless clear to a legal certainty they cant recover more than $75,000. i. If P wins less than $75,000 may have to pay D litigation costs. b. Aggregation = adding two or more claims to meet amount requirement. (join totals for 1 P v. 1 D). i. Joint claims, # of parties is irrelevant. c. Equitable relief, ok if either of 2 tests met. i. P view: does the [blocked view] decrease the value of the P property by more than $75,000 ii. D view: would it cost more than $75,000 to comply. 3. Fed courts will not hear actions involving issuance of divorce, alimony or child custody decree or probate an estate. ii. Federal Question(FQ) cases = complaint must show a right or interest founded substantially on a federal law. Claim arrises under fed law. 1. P must be enforcing a federal right. a. Once there additional claims can be part of the case. i. If additional claims dont meet diversity or FQ then supplement juisdiction. iii. Supplemental Jdx 1. Must share common nucleus of operative fact with the claim that invoked federal SMJ. Always met by claims that arise from the same Transaction or Occurrence (T/O) 2. In a diversity case, the P cannot use supplemental jdx to overcome lack of diversity.

Federal Jurisdiction and Civ Pro

iv. Removal = D sued in state court might be able to remove the case to federal court. It transfers a case ONLY from a state trial court to a federal trial court. 1. Within 30 days after service of the first paper that makes case removeable. a. All D who have been served w/ process must join in removal. 2. Kinds of cases that can be removed. a. One that meets reqs for Diversity or FQ. i. In diversity cases 1. No removal if any D is a citizen of the forum (instate D rule) AND 2. No removal more than one year after the case was filed in state court. 3. Remove to federal district embracing the state court where it was filed. 4. Procedure: D files notce of removal in fed court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties. Then file copy of notice in state court. v. Erie Doctrine = in diversity cases, the federal court must apply state substantive law. 1. If there is a fed law on point that directly conflicts state law, then apply fed law. 2. Always substantive issues: a. Elements of a claim or defense b. Statute of limitations c. Rules for tolling statutes of limitations, d. Conflict (or choice) of law rules. 3. Otherwise apply 3 tests to determine if substantive or not. a. Outcome determinative: then substantive b. Balance of interests: Does either state or fed have strong interest in having its rule applied. c. Avoid forum shopping: if state law is ignored will it cause parties to flock to fed court. If yes, apply state law. c. Venue = Which federal court (which district) i. P may lay venue in any district where: 1. All D reside (in cases where all D reside in different districts of the same state, P can lay venue in the district in which any of them reside) OR a. D reside where domiciled. b. Corp is where they are subject to PJ. 2. A substantial part of the claim arose. ii. Transfer of venues = can transfer to a district where case could have been filed. (also can transfer to any district if all parties consent and there is cause for the transfer)

1. If venue is proper in original district, court has discretion to transfer based on convenience for parties and witnesses and interests of justice In deciding this courts look at public and private factors showing that the other court is center of gravity. a. Public: e.g, what law applies, what community should be burdened with jury service, keeping local controversy in local court. b. Private: e.g., convenience where are the witnesses and the evidence. c. Transferee court applies the choice of law rules of the original court. iii. Forum non conveniens. = another court far more sensible than this one. 1. Here court dismisses or stays the case. (because other court is unavailable, e.g., is different judicial system, foreign country.) 2. Learning about case a. Service of process = must give notice to D (a summons and a copy of the complaint. Which combined are called process) i. Serve within 120 days of filing case or case is dismissed without prejudice (unless P shows good cause for delay in serving) ii. Any non party at least 18 yrs old can serve process. (doesnt have to be appointed by a court.) iii. How is process served. 1. Personal service = papers given to D personally, anywhere. 2. Substituted service = Process left with another (Ok if (1) it is Ds usual abode, and (2) serve some one of suitable age and discretion who resides there.) 3. Service on Ds agent = Ok if receiving service is within scope of agency. 4. State law = Can use methods of service permitted by state law of the state where the federal court sits or where service is effected. 5. Waiver by mail = Mail D a copy of the complaint and 2 copies of a waiver form, with prepaid means of returning form. If D executes and mails waiver form to P within 30 days, D waives formal service. a. P files waiver in court and it is effective when filed. b. If D doesnt return waiver, then D pays expenses of service unless D has good cause for not returning. iv. Fed Court can serve process outside state in which it sits ONLY if state law allows. v. Witnesses are immune to service. vi. Later papers (not process) are served by delivering or mailing documents to partys attorney. If mailed add 3 days to required response. b. Pleadings i. Rule 11 = Attorney must sign all papers (except discovery documents). 1. You certify that to the best of your knowledge and belief, after reasonable inquiry;

ii.

iii.

iv.

v.

a. The paper is not for an improper purpose b. Legal contentions are warranted by law c. Factual contentions and denials of factual contentions have evidentiary support. 2. Sanctions may be levied against attorney, firm or party. (meant to deter) a. Can be monetary sanctions. (Often paid to court) b. Must give chance to be heard before sanctions are imposed. 3. Can serve motion on other party but not file it, has safe harbor of 21 days, in which to fix the problem and avoid sanctions. Complaint = filing commences action (enough to put party on notice) 1. Requirements a. Statement of grounds for SMJ b. Short and plain statement of the claim, showing entitled to relief c. Demand for relief sought. 2. Must plead facts supporting a plausible claim. 3. Fraud, Mistake, or special damages must be plead with particularity or specificity. D response = by motion or by answer, w/ in 21 days after service of process. 1. Motions (rule 12) Motions are not pleadings; they are requests for a court order. a. Issues of form: (1) For more definite statement pleading so vague D cant frame a response; (2) Motion to strike. b. Rule 12(b) defenses: (1) Lack of SMJ, (2) lack of PJ, (3) improper venue, (4) insufficiency of process, (5) insufficient service of process (6) failure to state a claim, (7) failure to join an indispensible party. (raised either by motion of answer) i. Lack of PJ, improper venue, insufficiency of process, insufficient service of process are waivable and must be in first Rule 12 response. 2. Answer = pleading (serve within 21 days of service of process or within 14 days after ruling on 12(b) motion) a. Respond to allegations of complaint. (1) admit, (2) deny, (3) state that you lack sufficient info to admit or deny. i. Failure to deny is an admission. b. Raise affirmative defenses. Counterclaim = claim against opposing party (part of D answer in fed court) (Assess SMJ over counterclaim) 1. Compulsory = arrises from same T/O as Ps claim. Must be filed in the pending case, or it is waived. 2. Permissive = not from same T/O. may file with your answer or assert in different case. Crossclaim = claim against a co-party. Must be same T/O 1. Never compulsory.

vi. Amending pleadings 1. Right to amend = P has right to amend once within 21 days after D serves first rule 12 response. D can amed once within 21 dats of serving answer. 2. If no right to defend seek leave of court, it will be granted if justice so requires. Delay, prejudice & futility of amendment are considered. 3. Variance = evidence at trial does not match what was pleaded. 4. Ammendment after statute of limitations. (relation back) a. They relate back if they concern the same conduct, transaction or occurrence as the original pleading. c. Discovery i. Required disclosures = material must be produced even though no one asks for it. 1. Initial disclosures = within 14 days of Rule 26 conf, must identify persons and give copies of documents or electronically stored info likely to have discoverable information that the disclosing party may use to support its claims or defenses. Also computation of damages and insurance for any judgment 2. Experts = as directed by court must ID experts. 3. Pretrial = no later than 30 days before trial, must give detailed info about trial evidence, including documents and ID of witnesses to testify live or by deposition. ii. Discovery tools 1. Depositions = oral or written questions, deponent gives oral answers to questions by counsel. Recorded by sound or video or stenographically and a transcript made. a. Can depose nonparties or parties. Non-party should be subpoenaed. (can require deponent to bring material with them) Parties dont need to be subpoenaed. i. No more than 10 depos, and no repeats without court approval. Cannot exceed 1 day 7 hours unless court orders or parties stipulate. ii. Use at trial (subject to evidence rules): impeach deponent, any purpose if the deponent is an adverse party; any purpose if the deponent is unavailable for trial, unless absence was procured by the party seeking to introduce evidence. iii. Cant require more than 100 miles of travel unless agreed by deponent iv. Notice of Subpoena to business may require designation of person to be deposed. 2. Interrogatories = Questions propounded in writing to another party, answered in writing under oath. Respond with Answers or objections within 30 days. Not more than 25 w/out approval. Cant use your own answers in trial but can use other parties.

3. Requests to produce = To another party (or non-party with subpoena) requesting for review or copy documents, etc. Specify form in which ESI is to be produced (hard copy or electronic). Respond within 30 days of service, stating that the material will be produced or objection. 4. Physical or mental examination = Court order only, on showing that partys health is in actual controversy, and good cause for it exists. Petitioner chooses examiner. Examinee may obtain copy of report by asking but waives doctor-patient priviledge, for that condition. 5. Request for admission = request by one party to another party to admit the truth of discoverable matters. (authenticate documents etc.) Respond within 30 days of service. Either admit or deny. Failure to deny tantamount to admission; can amend if failure not in bad faith. 6. Parties sign substantive answers to discovery under oath. Discovery requests signed certifying (1) its warranted, (2) not interposed for improper purpose, and (3) not unduly burdensome. 7. Duty to supplement = If answers change you must supplement your response. iii. Scope of discovery (what information you can get.) 1. Standard = Anything relevant to a claim or defense. Includes things reasonably calculated to lead to discovery of admissible evidence (broader than admissible) 2. Cant discover communications protected by privilege. 3. Work product or trial preparation materials protected from discovery. (can be generated by party or any rep of party) a. Witness statements might be discoverable if there is substantial need and it is not otherwise available. b. Absolute protection for (1) mental impressions (2) opinions, (3) conclusions, and (4) legal theories. 4. Must claim privilege or work product protection expressly and particularly describe the materials. iv. Expert Witness = Parties may depose any expert whose opinions may be presented at trial. 1. Consulting expert = no discovery absent exceptional need v. Enforcement of Discovery Rules = Sanctions may be imposed (party seeking sanctions must certify it tried in good faith.) 1. Protective order = Respondent seeks protective order 2. Partial violation = failure to answer some Q?, if objections are not upheld this is partial violation. a. Move for order compelling party to answer, plus costs of motion b. If party violates order compelling answer, RAMBO sanctions plus costs and could be held in contempt. (no contempt for refusal to submit to med exam.

3. Total violation = total failure to respond a. Rambo plus costs. 4. RAMBO (choices available to judge) a. Establishment order (establishes facts as true) b. Strike pleadings of the disobedient party (as to issue re the discovery) c. Disallow evidence from the disobedient party (as to issues re the discovery) d. Dismiss P case (if bad faith shown) e. Enter default judgment against D (if bad faith shown) 3. Complex Cases a. Party Joinder (Proper parties are any that arise from the same T/O AND Raise at least 1 common Q?.) Then assess SMJ. i. Necessary and indispensible parties 1. Without whom court cannot accord relief among existing parties 2. Party whos interest may be harmed if not joined, OR 3. Party who claims an interest which subjects a party to multiple obligations. ii. Is joinder Feasible? 1. If there is PJ and joining him will not destroy diversity. Then join him. iii. If joinder is not feasible then either proceed withoutthe party OR dismiss the whole case (Indispensible if we dismiss the whole case) 1. Courts weigh if there is an alternative forum available 2. What the actual likelihood of harm to Bob is 3. Can the court shape relief to avoid that potential harm to Bob. b. Impleader = D wants someone new (third party D) B/C 3rd party D may be liable to D for Ps claim. (usually indemnity or contribution. i. Right to implead within 14 days after serving answer. ii. After joinder check for SMJ, if none then Supplemental Jdx. c. Intervention = Absentee wants to join pending suit. (must be timely) i. Intervention of right. = Where interest may be harmed if not joined. ii. Permissive intervention = pending case have at least one common Q? iii. Assess SMJ, (here courts dont usually allow supplement Jdx. d. Interpleader = one holding property(stakeholder) forces all potential claimants into a single lawsuit to avoid multiple litigations and inconsistency. i. Rule FRCP 22 interpleader (regular diversity case) 1. Stakeholder must be diverse from all claimants 2. Must exceed $75,000 3. Regular lawsuit for service of process 4. Regular Venue Rules ii. Statutory interpleader 1. 1 claimant is diverse from 1 other claimant (dont care about stakeholder) 2. Amount in controversy = $500 or more 3. Nationwide service (no PJ issues)

4. Venue is district where any claimant resides. e. Class Action = Rep sues on behalf of class i. Must demonstrate 1. Numerosity = Too many class members for practicable joinder 2. Commonality = There is some question of law or fact in common to class 3. Typicality = Reps claims/defenses typical of those of the class; and 4. Representative is adequate = Rep will fairly and adequately represent class. ii. Class must be 1 of 3 types 1. Prejudice = class treatment necessary to avoid harm. (e.g., avoid depleting a fund) 2. Injunction or Declaratory Judgment b/c class was treated alike by other party. (employment discrimination) 3. Damages = common Q? predominate over individual Q? AND class action is the superior method to handle the dispute. (Mass Tort) a. Court must notify class members that they are in the class. Individual notice to all reasonably identifiable members. They can opt out, bound If they dont and they can enter a separate appearance through counsel. iii. Court must certify class, define the class, class claims, issues or defenses also appoint class counsel(to fairly and adequately represent class.) 1. Only dismiss or settle with court approval. iv. Assess SMJ. (Class Action Fairness Act CAFA grants SMJ, if any class of 100 or more has a class member of diverse citizenship of any D and aggregated claims are more than $5,000,000 4. Adjudication a. Pretrial i. Voluntary disimissal = allowed on court order, may dismiss by writing written notice of dismissal (without prejudice if before D serves her answer or a motion for summary Judgment.) ii. Default and Default Judgment = D fails to respond in 21 days. (for Judgemnt D must make no response, claim is for sum of certain money, P gives affidavit of sum owed; AND D is not a minor or incompetent.) iii. Failure to state a claim.= If what P says is true, would she win a Judgment, if no then dismissed. (no evidence just the face of a complaint.) 1. If after D answers, it is a Motion for Judgment on the pleadings. iv. Summary Judgemnt (Rule 56) = Moving party show there is no genuine disput e on material fact, AND they are entitled to Judgement as a matter of law. (Move within 30 days of discovery close) 1. Evidence is looked at, affidavits or declarations, deposition, interrogatories etc. Court views evidence in the light most favorable to the nonmoving party. 2. Evidence must be first hand knowledge (remember pleadings arent evidence)

b. Conferences i. Rule 26(f) conference = at least 21days before scheduling conference, discuss claims, defenses and settlement. Must form discover plan to present to court within 14 days. ii. Scheduling Order = order scheduling cut offs for joinder, amendment, motions, etc. iii. Pretrial conferences = process case and foster settlement. (Everythig on the table no surprises at trial) c. Trial i. Right to jury trial 7th amendment for civil actions not equity (if both then jury for damages, not equity) 1. Jury determines facts, instructed on law by judge. ii. Judgment as a matter of law 1. Exceptional order, effectively taking case away from Jury a. Brought after other side has been heard at trial. D can move 2 times, P 1. b. Standard = Reasonable people could not disagree on the result. iii. Renewed Judgment as a Matter of Law. (after trial) 1. If judge didnt grant JMOL and case went to jury if you brought up JMOL can do RJMOL. Move within 28 days after entry. iv. Motion for new trial = judgment entered but errors so new trial. Move within 28 days. 1. Prejudicial error(e.g. jury instructions), new evidence that could not have been obtained with due diligence, prejudicial misconduct of a party or attorney or 3rd party or juror, Judgment against the weight of the evidence, excessive or inadequate dmgs. 2. Less drastic than JMOL. 5. Appellate Review a. Appeal i. Final Judgment rule = right to appeal only from final judgments. Notice in trial court within 30 days after final judgment. 6. Preclusion a. Claim and issue preclusion i. See GA Civ Pro.