Tips for Civ Pro exam: 1. For each issue: a. State general rule (i.e.

12(b)(6) motion to dismiss) b. State generally why youre using that rule (i.e. because PL failed to state a claim for which relief can be granted, Insufficient Pleading) c. Apply the facts to the case d. Make any counter arguments other side would make e. Draw an objective conclusion (i.e. 12(b)(6) motion should succeed for Counts II and III, but not on Count I) Steps for test: 1. 12(b) Motions to Dismiss a. 12(b)(6) for failure to state a claim for which relief can be granted i. Insufficient complaint/pleading, explain why ii. Court can only look at the pleadings, no evidence b. 12(b)(7) for failure to join a necessary party under rule 19 i. State who the indispensable party is, analyze c. 12(b)(1) for lack of Subject Matter Jurisdiction d. 12(b)(2) for lack of Personal Jurisdiction e. 12(b)(3) for improper venue f. 12(b)(4) for insufficient process g. 12(b)(5) for insufficient service of process 2. All defenses to a claim (besides 12(b)s as above) must be asserted in responsive pleading 3. Motion for summary judgment (under Rule 56) a. Use when PL does not meet burden of proof/production on one or all issues 4. Erie Analysis a. What will determination result in? Do Erie analysis as part of that motion/argument. 5. Motion for Judgment as a Matter of Law (JMOL) under Rule 50(a) a. Directed Verdict, during trial b. Judgment Notwithstanding the Verdict (JNOV), after trial 6. Other possible motions a. 12(f) Motion to Strike b. 12(c) Motion for Judgment on the Pleadings *12(b)(2-5) motions waived if not raised in pre-answer motion or included in answer (is a chance for amendment per 15(a)(1), however) *12(b)(6-7) can be raised at any time, as can 12(b)(1)

1. Pleading a. Rule 8(a), Rule 7 b. Must include (1) basis for jurisdiction, (2) short and plain statement of the facts that show PL is entitled to relief, and (3) remedy sought c. Insufficient pleading: include in initial 12(b)(6) motion to dismiss i. Used to be that pleading had to show case was merely possible (Conley); Now, plausible (Twombly) and more than a sheer possibility or plausible when you take out all of the conclusory statements (Iqbal) 1. Only look at statements, do not assess any evidence ii. Possible problems: 1. Are statements merely conclusory? 2. Does complaint show causation? Is causation plausible (Iqbal)? iii. Pleading can include apparent duplicity (Haddle v. Garrison) 2. Responding to Complaint a. Rule 8(b), Rule 7 b. Must include in short and plain terms its defenses to each claim asserted against it; party must admit or deny the allegations against it i. 8(b)(3) rules for denials 1. General denials allowed, if also include denial of jurisdiction grounds 2. For specific denials, can generally deny all but those specifically admitted c. 21 days i. or, if Rule 12 motion filed, 14 days after notice of courts decision (good way to get more time) d. Pre-answer motions: take no position, just try to end or alter the case i. i.e. 12(b) motions; Note: 12(b) motions to dismiss must be made before pleading if a responsive pleading (answer) is allowed e. Answer: respond to allegations of complaint i. Other denials, Rule 8(b) f. If no response, Default Judgment (Rule 55)

3. Amending a Complaint

a. Rule 15(a)(1) b. (A) Once within 21 days of service, or c. (B) Within 21 days of being served an answer or pre-answer motion, whichever date is earlier i. Rd: chance to amend before court grants a 12(b) motion to dismiss d. Courts may extend timeline if justice so requires (Beeck v. Aquaslide) e. For an amendment to be allowed after running of S/L, it must relate back to the original claim, 15(c) i. Relate back = arises out of same conduct, transaction, or occurrence (Moore v. Baker); a.k.a. same nucleus of operative facts (Bonerb case) ii. Cannot lead to undue prejudice on other party (Bonerb, discovery was not over, so amendment allowed) 4. Personal Jurisdiction (over the ) a. Lack of PJ, include in initial 12(b)(2) motion to dismiss b. First, analyze PJ under long-arm statute c. Second, analyze PJ as constitutional i. To meet requirement for PJ, court must have both statutory (long-arm statutes) and constitutional basis (Due Process Clause, 14th Amendment) in the form of power and notice d. Traditional basis of PJ: (From Pennoyer) Serving in forum, domiciled in forum, consents); basically no longer exists e. Modern basis of PJ: i. (From International Shoe) Minimum Contacts Test 1. must have minimum contacts with the forum state such that the maintenance of a suit does not offend traditional notions of fair play and substantial justice 2. Main considerations in analysis: a. Purposeful availment? --- PJ can be asserted based on a party's "purposeful availment of the benefits and protections" offered by a state b. Foreseeability? --- Was it foreseeable that s activites would lead to him being sued in this forum? i. Hanson v. Denckla: to protect s from inconvenient courts ii. Reasonable to expect that product would be used there? 1. World-wide Volkswagen: foreseeability of product being used here not only issue 2. WWV (cont.): could not have

anticipated being sued in Oklahoma court, so no PJ c. Fairness? --- Does court have an interest in adjudicating this case? 3. Possible considerations in analysis: a. Did company advertise there? (Asahi: manufacturer did not advertise in Cali, stream of commerce argument not enough) b. Burdensome to ? i. Burger King v. Rudzewicz, not deemed burdensome even though from Michigan to Florida c. Contract = contact? 4 considerations: i. (1) nature of prior negotiations, (2) contemplated future consequences of contract, (3) its terms, (4) course of dealing between parties (Burger King) ii. Two sorts of jurisdiction under International Shoe 1. Specific jurisdiction ( can be sued in forum on claims from activities that arose within forum) 2. General jurisdiction ( can be sued in forum on claims that arose anywhere in the world) a. To have GJ, though, must still have minimum contacts in state (Helicopteros v. Hall and Goodyear v. Brown) b. Physical presence for service still a consideration (Burnham case) iii. can also consent to PJ, i.e. by forum selection clause (Carnival v. Shute) f. If no PJ: i. Transfer (under 1404); among federal districts, for convenience of parties or witnesses), or ii. Forum Non Conveniens (dismissal for trial in another country) g. Can challenge by making special appearance in court h. Where to sue corporations = principal place of business or state of incorporation; individuals = state of their domicile

5. Subject Matter Jurisdiction (over the kind of case)

a. Lack of SMJ, include in initial 12(b)(1) motion to dismiss or 12(b)(6) for failure to state a claim (because court lacks SMJ) i. On test, use both; if diversity case, 12(b)(1) is only option b. Can be established by showing claim is based on federal law (1331) or theres diversity of citizenship (1332) i. Federal question? Look at pleading by PL, NOT anything filed or anticipated to be filed by (as per Mottley case) 1. Are PLs claim asserted under federal law? If so, no dismissal ii. Diversity? 2 requirements/considerations: 1. Amount in controversy > $75,000? 2. Completely diverse citizenship? a. Rd: none of the PLs can be from the same state as any of the s (Walker v. Norwest) b. Domicile issues? (Harry Potter); as part of domicile, must show physical presence + state of mind and intent to stay (Hawkins v. Masters Farms) c. Residency in foreign country not enough, must be citizen to establish diversity (Redner v. Sanders) d. No SMJ if foreign resident of US v. foreign citizen (Saadeh v. Farouki) 6. Supplemental Jurisdiction (broadening SMJ) a. 1367 b. Analyze if state claims brought in federal court along with federal claims c. If state claim(s) sufficiently linked to federal claim(s), then court has supplemental jurisdiction to hear them, 1367(a) i. Claims combine to tell one story ii. Resolution of state claims will/would affect federal claim iii. State claim part of same case or controversy iv. Claims are integrally connected d. If case is brought in diversity action, generally no supplemental jurisdiction if it would destroy diversity, 1367(b) e. Court has freedom to deny supp. j., if necessary, 1367(c)

7. Removal

a. 1441 b. If jurisdiction overlaps, PL can choose between federal and state court c. However, if filed in state court, can have case removed to federal court i. At time of removal, case must still be able to be filed in federal court (jurisdiction still applies) 8. Notice a. Rule 4 b. Step 1: Waiver of Service, by mail, 4(d) i. If accepted, waives any objection to sufficiency of summons and method of service c. Step 2: If doesnt respond, more formal summons i. For foreign defendants, 4(f) and 4(h) d. Duty on to avoid unnecessary expenses of serving summons, 4(d)(1) e. If requisites of PJ exist, proper service establishes jurisdiction, 4(k)(1) 9. Venue a. 1391 b. Include in 12(b)(3) motion to dismiss for improper venue c. In diversity cases, 1391(a): can be brought in judicial districts i. Where any resides, if all reside in same state ii. Where a large part of the claim occurred, or iii. where any is subject to PJ d. In other cases, 1391(b): only (iii) above is different i. iii: where any may be found e. An alien can be sued in any district, 1391(d) (Heveafil case) 10. Issue Preclusion (a.k.a. collateral estoppel) a. Elements: i. Issue litigated fully (with conclusion) ii. Was essential to the previous judgment 1. Illinois Gulf Central RR v. Parks, where court says issue preclusion might apply, if issue was key to jurys decision iii. Party against whom preclusion is sought had a full and fair chance to litigate in previous case b. Not necessarily between same two parties, but burdened part mustve been involved in previous case, had chance to litigate (Parklane v. Shore) 11. Claim Preclusion (a.k.a. res judicata)

a. Elements: i. Same parties (or parties in privity) ii. Judgment on the merits iii. Same claim 12. Joinder a. Rule 19, Compulsory Joinder of Parties i. Is party indispensable? Test under 19(a)(1) 1. 19(a)(1)(A)- can court complete relief without the party? 2. 19(a)(1)(B)(i)- will partys interest be harmed if not joined? 3. 19(a)(1)(B)(ii)- will existing party be subject to risk of incurring double/multiple/inconsistent obligations as a result of ruling? ii. Is joining the party feasible? (Would it destroy personal jurisdiction or diversity? iii. Joint tortfeasors (parties that, like you, would be jointly and severally liable) are permissive! (Temple v. Synthes Corp.) b. Rule 20, Permissive Joinder of Parties i. 2 requirements: 1. Must be entitled to relief (or right to relief has been asserted against them, for s) arising out of the same transaction or occurrence, and 2. Must be a common question of law or fact common to all parties (all PLs or all s, wherever joinder is occurring) ii. Ex. of success in joinder, Larson (insurance co + biased lawyer case) c. Rule 18, Permissive Joinder of Claims i. Single plaintiff against single ; pretty general rule, seems loose 13. Misjoinder a. Rule 21; not a ground for dismissing an action; courts can only decide to add/drop a party or sever the claims

14. Impleading (bringing in a 3rd party) a. Rule 14 b. , as third-party plaintiff, may bring in a 3rd party who is or may be

liable to it for all or part of the claim against it, 14(a)(5) i. Within 14 days of serving its original answer, or with permission, 14(a)(1) 15. Intervention a. Rule 24 b. Allows a party that no one wants to join, to join c. Intervention of Right, 24(a): court must allow party to join suit i. 4 requirements, 24(a)(2): 1. Intervention must be timely 2. Intervenor must have an interest in the property or transaction that is subject to the suit 3. That interest must be in some strong way at risk 4. Even if they meet these 3 criteria, if their interest is already adequately represented in the suit, court will still deny d. Permissive Intervention, 24(b), court may allow party to join i. For those with weaker bases for insisting on joinder ii. Significant protectable interest is enough (NRDC v. US Nuclear Regulatory Commission) 16. Class Actions a. Rule 23 b. Goal of class = to become certified under 23(c) i. To do so, must (1) meet 4 requirements under 23(a), and (2) fit into one of the 3 categories under 23(b) 1. 23(a): Numerosity, Commonality, Typicality, Adequacy 2. 23(b): a. (b)(1) class, mass production version of rule 19 b. (b)(2) class, when PLs are primarily seeking injunctive or declaratory relief (i.e. civil rights) c. (b)(3) class, all others, $$$ i. Small claims suits (Ticketmaster) ii. Mass tort suits (Buffalo Creek) c. Placing case in 23(b) requires judge to weigh advantages and disadvantages, can make or break a case d. 23(b), representative PL must initially pay for individual notice to all class members; inability to do so could end case right there 17. Cross-claims and Counter-claims a. Rule 13 b. Counterclaims (against PL) i. Compulsory, 13(a)

1. 13(a)(1), Must state counterclaims in responsive pleading that: a. Arise out of same transaction or occurrence as PLs claim, and b. Do not require adding another party that the court does not have PJ over 2. 13(a)(2), Exceptions ii. Permissive, 13(b), any claim not part of 13(a) iii. If compulsory counterclaim not made, it is waived c. Cross-claim (against co-) i. Proper if claim arises from the same transaction or occurrence as the subject matter of the original action, or ii. Relates to any property that is subject matter of original action iii. Can include claim that a co-party is or may be liable for all or part of the claim against you 1. i.e. Indemnification agreements; insurance companies 18. Choice of Law (The Erie Doctrine) a. In Motion, include in 12(b)(1) and/or 12(b)(6) motions to dismiss b. If state law should be applied, and party in federal court has failed to comply with that state law, claim is barred, 12(b)(6) will succeed c. Twin aims of Erie (see: Hanna test): i. To prevent forum shopping, and ii. To prevent inequitable administration of justice d. Steps of analysis: i. Does a state rule or practice conflicts with federal rule or practice? 1. If no, apply both rule 2. If yes, continue analysis (Note: lack of federal rule or practice is can still be considered federal practice) ii. Is there a federal rule/statute on point that does not violate the Rules Enabling Act (2702)? 1. If yes, then apply the federal rule (Hanna) 2. If no, only federal practice Is the state law outcome determinative? a. If no, apply the federal rule (Guarantee Trust v. York) b. If yes, apply the state rule (Byrd) i. Byrd Test: State rule must be tied to the substantive rights and obligations; state must have an interest in having this specific rule/practice applied c. If yes, are there countervailing federal policies? i. If so, apply federal law if balance favors it (Byrd)

iii. Apply Hanna Test: 1. Will using federal law over state law result in people flocking to federal court, violating the twin aims of Erie? e. Under Erie, if no state precedent: i. Make best guess about what state would do, or ii. Ask state court in process called certification 19. Discovery a. 3 stages: i. Mandatory disclosure, Rule 26 1. Initial disclosure, Rule 26(a)(1), what the party will use to support its claims/defenses 2. Disclosure of experts, 26(a)(2) a. Requires identity, some information on qualifications, and experts written report (if he will be testifying) b. 90 days before trial or 30 days after argument raised by opposing party, if rebuttal witness 3. Disclosure of witnesses and documents or exhibits, 26(a) (3) a. 30 days before trial; opposing party can object within 14 days under 32(a) ii. Further discovery, without any special showing, limited by relevance 1. Interrogatories, 25 questions max without court approval, only to party (no non-party witnesses), Rule 33 2. Requests for admission, on facts or application of law to fact or genuineness of documents, only against parties, Rule 36 3. Requests for production of documents, things, land, and bytes, Rule 34 a. Docs must be produced a they are kept in usual course of business, or must be organized, 34(b) (2)(E)(i) b. From a non-party, embody request in a subpoena 4. Deposition (Oral, Rule 30; written, Rule 31) a. 10 per side max without permission, 30(a)(2)(A) (i) b. One day of 7 hours only, 30(d)(1) c. Only one time without permission, 30(a)(2)(A) (ii) iii. Broader discovery, into the subject matter involved in the action, if a party demonstrates good cause to the court b. Enforcement, Rule 26(g) and 37 c. Duty to preserve evidence (Spoliation), Silvestri v. GM (case where car

wasnt preserved, prejudice too high to , case dismissed) d. Limitations on discovery: Info sought must be: i. Relevant, 26(b)(1) 1. Must tend to prove or disprove something that substantive law says matters; see: Steffan v. Cheney (gay cadet + discovery case) ii. Unprivileged, 26(b)(1) 1. i.e. attorney-client, doctor-patient, privilege against selfincrimination, spousal, etc. 2. or work product (lawyers notes case, Hickman) iii. Potential for annoyance/embarrassment or undue burden or expense must not outweigh value, 26(b)(2)(c) e. Special limits on physical and mental examinations, Rule 35 i. Issues must be in controversy and good cause must be shown f. Issue with experts; determining if person is expert or just a fact witness (expert testimony discoverable, witness not) i. Chiquita v. M/V Bolero: fact expertise + relevance = expert wit 20. Dismissals a. Default Judgment i. Rule 55 ii. Can be voided on appeal (see: Peralta case) b. Involuntary Dismissal (to keep PLs from filing meritless suits to hang over ) i. Rule 41(b) c. Voluntary Dismissal (allows PLs to dismiss before answers, or anytime if all parties agree) i. Rule 41(a)(1)(A) ii. Does not bar a future refiling 21. Summary Judgment a. Rule 56, can move at any time, usually not awarded until after discovery i. Can be issued as to the merits of the entire case, or of specific issues within case; decided on by the judge b. Basis: i. If PL does not show/have sufficient evidence on any one element of the claim then there is no genuine issue of material fact because they have not met their burden of production, no reasonable person could find for the party (Celotex) 1. Whoever had burden of pleading an element of the claim has the burden of production for evidence on that claim c. How to analyze: i. State who the moving party is (because evidence in motion must be viewed in light most favorable to non-moving party)

ii. Even in most favorable light, is non-moving parties evidence sufficient? Has she met burden of production? At all possible a jury (rd: reasonable person) would find for her? 1. Analyze by each count a. State what elements PL must meet to bring specific claim b. If there still exists a genuine issue of material fact to be disputed, SJ will not succeed/will not be granted 2. If issue is non-moving partys lack/absence of evidence, moving party only has to point out that absence in motion for SJ (as per Celotex) a. Before Celotex, Adickes said that moving party had to affirmatively prove the absence of evidence on issue iii. Can non-moving party adequately dispute the motion for SJ? 1. To do so, they must show specific evidence that there are still material facts in dispute (Bias case) 22. Directed Verdict (a.k.a. JMOL) a. Rule 50; Jury trials only b. When: i. Party has been fully heard on an issue ii. Court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue c. Basically, when party with burden of production has failed to carry that burden d. DV can be granted when (1) no conflict of direct evidence, and (2) witnesss testimony could be seen equally in two lights (for PL or ) (Pennsylvania Railroad v. Chamberlain) e. Same analysis as for SJ f. Party with the burden of production and persuasion must show affirmative evidence to create a sufficient genuine issue of material fact 23. Judgment Notwithstanding the Verdict (JNOV) a. Rule 50; Post-verdict reversal of a jurys decision b. JNOV granted when: i. Having taken the evidence as most favorable to the non-moving party, the court finds that a reasonable person could not possible find for the non-moving party (Norton v. Snapper Power Equipment) c. When insufficient facts to support the verdict or incorrect application of the law d. For JNOV to apply, movant must have moved for DV/JMOL during the trial (JNOV motion is like asking for court to reconsider)

e. Can file up to 28 days after judgment entered 24. Sanctions against Attorneys a. Rule 11 b. Sanctions appropriate if: i. Suit is bought for an improper purpose ii. Claims are not warranted (whatever did was legal) iii. Theres no evidence for the facts raised 1. Cannot plead something hoping discovery will produce evidence to support c. Pleading must be supported by reasonable factual investigation by lawyer, Bridges v. Diesel Service (PL did not file charge with EEOC case) d. Ex. of meritless claim, Christian v. Mattel e. Ex. of lawyer being dumb, Walker v. Norwest (not complete diversity case) 25. Miscellaneous Probable Non-issues a. Remedies i. Specific (restoring whatever took from PL, i.e. with an injunction or rehiring a person) ii. Substitutionary (providing PL with a reasonable substitute) 1. Punitive damages, at most 9:1 v. compensatory, State Farm v. Campbell iii. Declaratory relief, Rule 57 (declaration of the potential for future relief, not specific, almost hypothetical) b. Attorneys fees i. Fee waivers generally allowed (Evans v. Jeff D. and Buckhannon case) c. Provisional/Pre-judgment remedies i. Preliminary injunctions, Rule 65(a) 1. When (1) case has a fair chance to succeed, (2) damage PL may suffer is sufficiently serious, (3) balance of equities in PLs favor, (4) injunction is in public interest (Winter v. NRDC) ii. Temporary Restraining Orders, Rule 65(b) d. Jury Instructions i. Rule 51 e. Control of judge i. 144, Bias or prejudice of judge, leads to dismissal of judge ii. 455, Disqualification of judge, when J should disqualify himself