Federal Rules Of Civil Procedure

The Federal Rules of Civil Procedure (FRCP) govern civil procedure for lawsuits in the U.S.  federal district courts. The FRCP are promulgated by the U.S. Supreme Court pursuant to the Rules Enabling Act, and then approved by Congress. The Court’s modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, which is the federal judiciary’s internal policy-making body. Although federal courts are required to apply the substantive law of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure.

I. Jurisdiction. This is the most tested area on bar essays and the MBE.

Personal jurisdiction. Ability of a state or federal court to exercise power over a particular defendant or particular property. Determine whether a particular court has the power to hear this particular type of case involving these particular parties. To resolve these issues focus on both constitutional limitations and state statutory limitations.

Three types of personal jurisdiction.

  1. In personam jurisdiction. Exists where the court has the power over the particular defendant person. The most common form.
  2. In rem jurisdiction. The courts power to determine the rights of all persons in the world with respect to a particular item of property. The presence of that property in the state is sufficient to exercise jurisdiction over that property. The court has no jurisdiction over property located outside of its jurisdiction. Actions include:
    1. Condemnation actions.
    2. Distribution of probate.
  3. Quasi-in rem jurisdiction. The courts power to adjudicate the rights of particular persons with respect to specific property. A quasi judgment is not binding on the defendant personally.

Constitutional limitations. It is the plaintiff’s objective to sue the defendant in the court most convenient and most favorable to the plaintiff. This is usually the court in the plaintiff’s home state. The Due Process Clause of the 14th amendment serves as a limitation to protect a non-resident defendant as well as to restrict forum shopping by the plaintiff.

  1. Traditional rule. The Due Process Clause limits jurisdiction by imposing:

1)    Minimum contact. Development of the constitutional standard evolved from case law and state statutes granting their courts personal jurisdiction over out-of-state defendants. For a court to have personal jurisdiction defendant’s are required to have:

  1. Presence. The defendant’s physical presence within the forum.

Pennoyer v. Neff U.S.S.C., every state has exclusive jurisdiction over persons and property within its territory.

Transitory presence is adequate basis for in personam jurisdiction upon proper service of process even if in the jurisdiction for a brief period, such as flying over the jurisdiction.

  1. Domicile. The defendant’s residence/domicile in that forum.

Domicile is where the defendant resides with intent to remain. Their permanent home. If the defendant is domiciled in a particular state then that state has territorial jurisdiction over that defendant.

Persons living abroad are also subject to in personam jurisdiction in the U.S.

Residence. A person can have more than one residence, but only one domicile.

  1. Consent. An out-of-state defendant must consent to having a matter heard within that forum. Consent may be either express or implied.

Express consent.

Forum selection clauses. Inserted into a contract where parties expressly agree that any disputes arising out of that contract will be adjudicated in a selected state are generally held to be enforceable. Unless enforcement is found to be unreasonable or unjust under the circumstances. Example:  Fraud or undue influence.

Implied consent. A non-resident motorist statute.

Hess v. Pawloski. This case begins the long arm statutes where out-of-state residents implicitly consent to other states having jurisdiction over non-state persons. A motorist using a state highway consents to that states exercise of jurisdiction over them if they are involved in an automobile accident in that state.

General appearance. Consent may arise when a defendant makes a general appearance in a state court to contest a cause of action against them.

Special appearance. When a defendant makes an appearance in state court solely to challenge jurisdiction in their initial pleadings before the court, this does not constitute valid consent.

Exceptions where a court has no jurisdiction.

  1. Where defendant’s presence or property was coerced by force or fraud.
  2. Immunity. No jurisdiction when defendant is present in the forum only because he is a party or a witness to a judicial proceeding.
  3. Modern constitutional rules requirement for satisfying personal jurisdiction under Int. Shoe Minimum contact fairness standard.

International Shoe v. Washington. The defendant can be subject to personal jurisdiction under the standard of fairness and reasonableness. What does this mean? Chief Justice Stone explained a new standard for a state to exercise its territorial jurisdiction over persons and things outside the state’s border. Due process requires that in order to subject a defendant to a judgment in personam, if they are not present within the territory of the forum, they must have certain minimum contacts so that maintenance of the suit against the defendant does not offend traditional notions of fair play and substantial justice.


  1. The burden on the defendant to litigate in the forum state.
  2. Examine the interest of the forum state itself.
  3. Examine the plaintiff’s interest in obtaining relief.

Minimum contact analysis.

Three factors to determine the quantity and nature of defendants contact with the forum state.

1)    Systematic and continuous activity. Where an out of state defendant engages in systematic and continuous activity within a state that defendant has minimum contacts sufficient to justify the state’s territorial jurisdiction over them. (In essays make the argument there is systematic and continuous activity.)

  1. General jurisdiction.

Helicopteros v. Hall A Texas state court was held to not have a proper basis to exercise territorial jurisdiction in a personal injury suit for a helicopter crash that occurred in Peru. Although the defendant has regular contacts, he purchased helicopters and trained pilots in Texas, these contacts were held to be too sporadic and not directly related to the particular cause of action. The holding was no systematic and continuous activities therefore no minimum contact.

  1. Specific jurisdiction.

McGhee v. International Life Insurance Co. Although the defendant has only a single contact with the forum state the court held there was a valid basis to exercise personal jurisdiction because the plaintiff’s cause of action itself directly related to the defendant’s forum activity.

2)    Purposeful availment. The defendants must have purposely availed themselves of the privilege of conducting activity within the forum state to constitute minimum contact. Purposely availment themselves to the benefits and protections of the forum state’s law. Generally applies to contract cases regarding minimum contact within a jurisdiction. The contacts are considered deliberate, not accidental, but that the defendant must affiliate with the forum state.

Hanson v. Denckla. Unilateral activity of the defendant who was merely sending trust payments was not enough to establish minimum contact to give the state territorial jurisdiction over the defendant. The defendant was not doing business or actively seeking business in Florida. The only contact with the state was the unilateral activity of sending payments to deceased.

Burger King v. Rudzewicz. A Michigan defendant entered into a franchise contract with an out-of-state plaintiff in Florida. That contract contemplated future dealings and future consequences. The court held the Michigan defendant could be sued in Florida and that there was purposeful availment where he purposely affiliated with the forum state plaintiff.

3)    Stream of commerce analysis.

World-Wide Volkswagen v. Woodson Where the defendant’s activities are performed outside the state they will be subject to in personam jurisdiction for consequences in the state, where the defendant knows or reasonably anticipates such activities could compel them to litigation in the forum state for this particular cause of action. WWV applies to product liability cases. S.C. held that courts in Oklahoma had no authority to exercise jurisdiction over a New York auto dealer in a products liability action for an accident that occurred in Oklahoma because the dealer had no reason to foresee that that car sold in New York, would be driven to Oklahoma and involved in an accident there. Principle: If the sale of a product arises from the efforts of a manufacturer to serve the market for its products in other states, (not merely an isolated occurrence), then it is not unreasonable to subject that manufacturer to suit in one of those states where their defective merchandise has been the source of injuries to its owner or other third parties. In other words, due process allows for a state to have jurisdiction over a corporation that delivers its product into the stream of commerce with the expectation that the product will be purchased by consumers in the forum state.

Merely placing a product into a stream of commerce without more has been held insufficient to establish minimum contact and purposeful availment according to a majority opinion by Justice O’Connor in the Asahi Metals v. Superior Court case. O’Connor said you need more than mere placement there also has to be additional conduct by the manufacturer. Additional conduct is the key to determining the manufacturer’s intent to server the market in the forum state.

Examples: Designing the product for the forum state market, advertising in the forum state, distributing the product through a forum state agent, establishing media channels to disseminate advice to customers on a regular basis, TV, radio or the internet.

State statutory limitations imposed on personal jurisdictions.

To exercise territorial jurisdiction over out-of-state defendants or out-of-state property a state must have both the right and the power to do so.

Minimum contact determines the right to exercise jurisdiction.

Long arm statutes determine the power providing the states statutory basis for granting a court power over a person or property. Most states have statutes that specify in detail how their courts can exercise jurisdiction.


  • Committing a tort in the state.
  • Transacting business in the state.
  • Entering into a contract for which a cause of action arises.
  • Owning property in the state.
  • Obtaining a divorce where one party is domiciled in the state.
  1. Adequate notice.
    1. Content. The defendant must be made aware he is being sued, what he is being sued for and where and when he is to appear.

Mullane v. Central Hanover Bank Notice must be reasonably calculated to apprise the parties of the action.

  1. Method of service. Mullane entitles the defendant to the best notice practicable under the circumstances.
    1. Personal service. Directly to the defendant or a designated agent is always proper.
    2. Substituted service. Notice is given to the defendant’s close business associates, or to family members of suitable age or discretion. Generally adequate.
    3. Constructive service. Posting notice on the property, newspaper publication, or register mail sent to the defendant’s last known address. May be inadequate.

Example: A foreclosure action brought by the city for non-payment of school board taxes against a homeowner. Notice of this was done by publication – posting notice on the property by the city. The court said this was constitutionally inadequate. Why? Because the mortgagee, the bank was readily identifiable and could have been notified directly by personal service.

FRCP 4. Service is permitted by any person who is not a party and who is 18-years of age or older.

Exam discussion.

Minimum contact under due process and adequate notice are required for territorial jurisdiction over a defendant. Make sure to discuss state statutory limitations imposed by the long arm statute to obtain jurisdiction over an out-of-state defendant. A federal court can acquire personal jurisdiction by borrowing the forum state’s long arm statute. Also, the 5th amendment due process clause applies to the federal courts, just as the 14th amendment applies to the states.

  1. Subject matter jurisdiction. Unlike state courts, which are courts of general jurisdiction. Federal courts have limited subject matter jurisdiction. Article 3 of the Constitution vests the judicial power in one Supreme Court and such inferior courts as congress may establish. Thus the Supreme Court was created by the constitution where congress has plenary power to create the lower federal courts, federal district courts and courts of appeal. Federal court jurisdiction can also be limited by U.S. Supreme Court cases, since case law construes the meaning of Article 3 and the acts of congress.
    1. Federal question. Title 28 §1331. The district courts have original jurisdictions over all civil actions arising under the Constitution, laws or treaties of the U.S. An action arises under federal law when a federal statute provides the cause of action and a remedy.

Example: Anti-trust law, securities law.

In federal question cases the plaintiff must plead facts that establish that a federal question exists as part of the cause of action under FRCP 8. On the other hand, a defense even if it is based on federal law does not by itself raise a federal question.

There is no minimum amount in controversy required.

Federal courts have exclusive jurisdiction under Article 3 to hear certain types of cases. Here, state courts lack jurisdiction including:

  1. Bankruptcy, patent, copyright, IRS, anti-trust, admiralty, and securities and exchange cases.
  2. Cases involving ambassadors, public ministers and consuls.
  3. Cases where a state or the U.S. is a party.
  4. Cases between two or more states.

Supplemental jurisdiction. Pendant jurisdiction was the name formerly applied in federal question cases dealing with addition of supplemental claims. Now it comes under the broader heading supplemental jurisdiction. If a plaintiff has properly asserted subject matter jurisdiction in federal court, based on a federal claim, that court has discretion to allow the plaintiff to add or append a state law claim to the federal action, provided the state claim is transactionally related. Provided the two claims derive from a common nucleus of operative fact.

Example: X is a citizen of state A. He sues Y also a citizen of state A, for copyright infringement. Copyright infringement is a federal question matter. Then X may properly add a state law claim such as breach of contract or interference with prospective advantage. Here, X could not have appended the state claim under diversity of citizenship because both parties reside in the same state.

Where a federal claim has been validly asserted supplemental jurisdiction may also be used to not only apply to claims, but also to parties. This concept used to be called ancillary jurisdiction, but has recently been codified together with pendant jurisdiction under the broader heading supplemental jurisdiction.

Ancillary jurisdiction. A federal court may hear a claim against a party where it would not have had subject matter jurisdiction if the claim against that ancillary party is transactionally related.

Example: P, D and Z are all citizens of Texas. P sues D and Z in federal court. P claims D violated federal law but also asserts a state law claim against Z, which transactionally related involves no federal question. Under principles of supplemental jurisdiction Z may be added as a proper party despite any independent basis for federal subject matter jurisdiction because the claim against Z was transactionally related.

Discretion. The federal court may exercise discretion to decline adding a transactionally related claim or party. Quite rare, but would apply where the state action predominates or where the issues are very complex.

  1. Diversity of citizenship jurisdiction. A federal court has proper subject matter jurisdiction to hear civil cases where:
    1. Complete diversity of citizenship must exist between parties.

No plaintiff may share citizenship with any defendant.

Citizenship is determined at the time the suit is filed. Not when the cause of action arises. Therefore, diversity need not exist at the time the cause of action arose. A party may even change citizenship to create or destroy diversity.

Citizenship is the equivalent to domicile.

  1. Individuals. An individual is a citizen of his state of domicile. Applies to permanent resident aliens.
  2. Corporations. A corporation is treated as a citizen of both the state of incorporation, and the state where its principle place of business is located.

Example: A Florida P is suing D, a corporation incorporated in Delaware with its principle place of business in Florida. What result? No diversity.

  1. Unincorporated associations and partnerships. The partnership is considered a citizen of each state where any member is a citizen.
  2. Class actions. Only the named representative of the class need citizenship differing from the opposing party. The named representative determines citizenship.
  3. Representative actions. Citizenship is that of the infant, the incompetent or the decedent.
  4. Non-alien residents. May sue and be sued within diversity jurisdiction.
  5. U.S. citizens domiciled abroad are not citizens or aliens. They do not fall within the restrictions of diversity jurisdictions.
  6. Domestic relations and probate cases. Neither can be heard by federal courts under diversity jurisdictions because neither are actions in law or suits in equity.
  7. Supplemental or ancillary cases. Federal courts have discretion to hears claims that could not otherwise be joined based on diversity where the claim arises from the same transaction or occurrence.

Essays. If the proposed joinder of parties appears to be made to circumvent the diversity requirement then supplemental jurisdiction is improper.

Example: Where P fails to name a non-diverse defendant in the original complaint hoping to add that party later, there has been an attempt to evade the diversity requirement and that would preclude the supplemental party.

  1. The amount in controversy in diversity actions must be greater than 75,000 exclusive of costs and interests.

Determined by the plaintiff’s good faith pleading in the complaint.

Jurisdiction will not be defeated if the amount actually recovered is 75,000 or less.

Punitive damages may be used to determine the dollar amount in controversy where they are allowed by state substantive law.


One plaintiff may aggregate all her claims against one defendant. Even if they arise from completely different transactions.

Example: P may sue D for a 50,000 tort claim and a 26,000 contract claim.

Multiple defendants. Absent joint or several liability where one plaintiff has claims against multiple defendants aggregation based on separate claims is improper. The jurisdictional amount must be satisfied as to each defendant and as to each claim.

Multiple plaintiffs. May aggregate against one defendant but only where they are seeking to enforce one title in which they have a common interest.

Example: An issue of co-tenants where there is a common ownership of property, which may be insured by one insurer defendant.

Defendant’s counter-claim cannot be combined with the plaintiff’s claim to reach the jurisdictional amount.

  1. Removal. Defendant’s forum shopping from state to federal court. A state court defendant may compel removal of claims from a state court where the plaintiff filed the claim to the appropriate federal court.

Applies only from state courts to federal courts. If an action is filed in federal court, which lacks federal subject matter jurisdiction, but does meet the state courts jurisdictional standards it cannot be removed to state court. It must be dismissed.

If there are multiple defendants all must agree to be moved otherwise removal is improper.

Diversity removal is property only if complete diversity exists and the amount of controversy is satisfied.

Example: If any of the defendants are the citizen of the same state as the plaintiff, the action cannot be removed to federal court.

Defendant may not remove if he is a citizen of the forum state because they will be subject to that state’s laws anyway.

Removal is always made to the federal district court whose territory encompasses the state court.

Notice of removal must be filed in the district court within 30 days of receipt of the summons or the initial pleading. However, removal of a diversity action beyond one year after it has commenced in state court is barred.

If the case contains a separate and independent claim, based on a federal question then a defendant may remove the entire case.

  1. Venue. Subject matter jurisdiction deals with the power of a court to adjudicate a case. Venue determines the proper district in which to hear the case. Subject matter deals with authority or power, where venue is a question of convenience.

Whether jurisdiction is based on diversity or federal question venue is proper where:

1)    Any defendant resides.

2)    In a judicial district where a substantial parts of an event giving rise to the action occurred.

3)    Or where a substantial part of the property is situated.

4)    For actions based solely on diversity venue is proper in a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced.

5)    For actions not based solely on diversity, venue is proper in any judicial district where any defendant may be found.

Residency rules that apply to venue purposes:

  1. Individuals. Determined by their domicile.
  2. Corporations. A corporate defendant resides in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. A corporate plaintiff only resides in the state of its incorporation, or if that state has more than one district the corporate plaintiff also resides in the district where it has its principle office.
  3. Unincorporated associations. Reside in any state and district where it is doing business.
  4. Aliens. May be sued in any district.
  5. Local actions. Actions involving property must be brought where the property, the subject matter of that action is located.

Transferring venue.

  1. Courts may dismiss the action under forum non-convenience or,
  2. Transfer to any district in which the case could have been brought.

Sometimes even when venue is proper courts may still transfer the case based on convenience of the party based on the interest of justice. The moving party has the burden to show there should be a transferred of factors based on convenience.

Conflicts of law. What law should be applied upon transfer of venue?

  • Where the original venue was proper the applicable law to follow is the law of the transferor court.
  • If the original venue was improper the applicable law to follow is the transferee court.
  1. Choice of law problems. Erie doctrine.

Erie Railroad v. Tompkins Tompkins brought negligence action against Erie Railroad, seeking damages for injuries sustained when hit by a door projecting from a moving train while walking along a railroad right of way.

In diversity cases where the determinative legal issues might involve state law rather than federal law, but the suit is brought in federal court only because the opposing parties are citizens of different states what law should control? In a diversity case a federal court must apply state substantive law, but will apply its own federal procedural law. Eire left open the question as to what types of law are substantive and what types are procedural.

Under the Erie ruling substantive refers to any state statute or any state case law decision.

Procedural refers to any one of the 86 federal rules of civil procedure, or any federal rule of evidence.

Klaxon v. Stentor. Federal courts are required to apply conflicts of law principles where the federal court sits because conflicts principles are substantive.

Hanna v. Plumer. FRCP 4 allows service of process by abode service. A conflicting state law required personal service of process. The result is federal rules of procedure applies.

Guaranty Trust v. York. When it is unclear whether a state law is substantive or procedural courts use the outcome determinative test. Under this test a state law is substantive if not to apply it would lead to a different outcome in federal court from what would occur in state court. This case held that a statute of limitations is a substantive law and therefore state law should be applied to a state claim litigated in federal court because federal courts are required to follow state substantive law. Often criticized as being too deferential to state law, as an alternative a general balancing test may be used, where the federal interest in applying federal law is weighed against the state interest in applying its own law. If a federal law is arguably procedural then federal law will be applied.

Example of the balancing test approach.

Byrd v. Blueridge Rural. The S.C. held the strong interest of preserving the federal right to jury trial outweighed the conflicting state law, which allowed a judge to act as a trier of fact, rather than granting a jury trial.

Essays. Apply either the outcome determinative test or the general balancing test to choice of law problems involving substantive versus procedural issues.

The following is a chronological order of the actual civil proceeding.

II. Pleadings. The paperwork that begins the civil proceeding. Using the FRCP as a guideline what pleadings, what content and how pleadings can be amended.

  1. Complaint. Plaintiff’s initial pleading that commences the cause of action.

Notice pleading. Federal courts follow notice pleading. State courts follow fact pleading, which requires much more specificity.

FRCP 8(a) require:

  1. The grounds for jurisdiction.
  2. A short statement of the plaintiff’s claim.
  3. A showing that the pleader is entitled to some type of relief, such as damages, an injunction, declaratory relief, etc.

Federal rules do not require the plaintiff to set out the details in which the claim is based upon.


The details are required where the action involves fraud or mistake, capacity to sue, dealings with conditions precedent, or special damages were the damages do not necessarily result from the defendant’s conduct.

Example: In a personal injury case, pain and suffering would be general damages and would not require a detailed pleading. Specific damages involving medical expenses, property loss and a loss of earnings would require a detailed pleading under FRCP 9.

Defendant’s pre-answer motions under FRCP 12.

  • Lack of subject matter jurisdiction.

Example: D says there is no basis for diversity of citizenship.

The timing to raise such a motion is that it may be raised any time in the proceeding. This motion can never be waived and raised at any time before trial, during trial, even for the first time on appeal.

The following defenses are waived by motion or answer whichever occurs first.

  • Motion for lack of personal jurisdiction.
  • Motion for improper venue.
  • Motion for insufficient process.
  • Motion for insufficient service of process.

Next set of defenses can be raised any time before trial, or during trial.

  • General demurer. Failure to state a claim upon which relief can be granted.
  • Failure to join a party.
  1. Answer. FRCP 8(b). Defendant’s response to the pleading where they may admit or deny each allegation of the complaint. Failure to specifically deny an allegation constitutes an admission. In some cases defendants may make a general denial. This is where the defendant denies each and every allegation in the complaint. Specific denials are much more common.

The answer must state any affirmative defenses as well as any claims for affirmative relief such as a counter or cross claim.

  1. Counterclaims. The defendant’s action to bring a complaint against the plaintiff.
    1. Compulsory counterclaim. A claim by the defendant against the plaintiff, which arises from the same transaction or occurrence as the plaintiff’s claim must be raised otherwise it is barred.
  2. Cross claim. Defendant’s action to bring a claim against a co-defendant.
    1. Permissive counterclaims may be raised by defendant against the plaintiff, do not arise from the same transaction or occurrence as the plaintiff’s claim and proper jurisdiction claims must be satisfied.
  3. Impleader or third-party complaint. A pleading used by the defendant to bring new parties into the action.
  4. Pretrial motions.
  5. Amendments. Federal courts follow a very liberal policy permitting amendments to reach the merits of a dispute.

FRCP 15(a) permits a party to amend a pleading ONCE at any time before a responsive pleading is served. Thereafter leave to amend may be sought upon permission of the court. Generally, leave to amend is freely given and may even be given during the trial.

Relation back doctrine.

New claim amendment. Amendments date back to the original pleading. Specifically where a new claim is added.

New party amendment. Amendment of the original pleading will be permitted and relate back if:

  1. The claim against that new party arose in the same transaction or occurrence.
  2. The new party had notice the action commenced before the SOL ran.
  3. The new party knew or should have known a claim would have been made against them.

Sanctions under FRCP 11 requires the attorney to sign every pleading, motion or other paper prepared for the client and thus certify that the pleading is supported by reasonable inquiry into the fact, warranted on good faith argument and not offered for any improper purpose. Reasonableness is measured objectively. If FRCP 11 is violated the courts must impose appropriate sanction on the attorney, the client or both upon proper notice. Sanctions may include monetary penalties, such as payment of opponent attorney reasonable fees and expenses.

III.Joinder. Second most tested area. The rules of joinder determine, which parties may, or must be included by the plaintiff and the defendant in their pleading. Modern joinder provisions are constructed with the purpose of bringing about complete adjudication of all claims among all the parties in the transaction involving resolution of common issues of law or fact. Two key themes required for joinder:

1)    Transactional relationship test. All claims must arise from the same transaction or occurrence. Common questions of law or fact. If the claim does arise from the same transaction or occurrence then common questions of law or fact will be inevitably present.

2)    Jurisdictional theme. Every claim against each party much be supported by an independent ground of subject matter jurisdiction. Either federal question, or diversity of citizenship plus amount of controversy exceeding 75,000, unless the discretionary doctrine of supplemental jurisdiction applies. (Ancillary jurisdiction in diversity cases dealing with ancillary parties, or pendant jurisdiction in federal question cases dealing with pendant claims.)

  1. Joinder of parties.
    1. Compulsory joinder. Where a third party is ruled necessary, (complete relief cannot be accorded in that persons absence), yet cannot be joined as a defendant for some reason, the action must be dismissed.

Example: A co-owner of real property in a partition action, or trust beneficiaries in litigation involving a trust.

The more common situation involves situations where a defendant attempts to bring a party in as a co-defendant. This situation is generally examined under the rules for conditionally necessary parties.

  1. Conditional necessary parties. If a necessary party is not joined for lack of subject matter jurisdiction, there is no dismissal and the action may proceed without that person. Complete relief can be given to parties.

Example: Joint tortfeasors.

  1. Necessary parties. Requires and independent basis for subject matter jurisdiction. FRCP 19. To determine if a party is indispensible or necessary there must be proper service of process and proper subject matter jurisdiction for joinder and:
    1. If complete relief cannot be given in their absence.
    2. Or disposition in their absence might impair their ability to protect their interest, or leave any existing parties subject to a substantial risk of multiple or inconsistent obligations then a person shall be joined under FRCP 10 if feasible.

Where joinder is not feasible. Factors to argue to determine whether the action should proceed or be dismissed when determining whether joinder is compulsory, and a party is necessary or indispensible.

  1. The court has to decide if the action can proceed or must be dismissed.
  2. Some factors to consider under Rule 19.
  3. Whether a judgment in the party’s action might prejudice them, or existing parties.
  4. The extent to which prejudice can be lessoned by shaping relief.
  5. Whether a judgment in a person’s absence would be adequate.
  6. Whether a plaintiff would have an adequate remedy if the action is dismissed.
  7. Permissive joinder of parties. FRCP 20. Multiple parties may join as plaintiffs or be joined as defendants in one action provided some claim made by each plaintiff and against each defendant arises from the same transaction or occurrence and presents a common question of law and fact. Jurisdictional requirements must still be satisfied.

It’s easier to join parties first and then the claims.

  1. Joinder of claims. FRCP 18 allows a plaintiff to join as many claims as they have against the opposing party no matter what type of claims they are. The goal is complete resolution of dispute between parties.

Example. One plaintiff can sue one defendant for several unrelated claims and may aggregate all claims to meet the jurisdictional amount in a diversity action. However, in a federal question case, a non-federal claim can be joined, but only if the non-federal claim arises from the same case or controversy as the federal claim.

Where there are multiple plaintiffs and multiple defendants involved it is required that at least one of the claims arises out of a transaction in which all of the parties are involved.

Joinder is compelled when failure to join could result in splitting a cause of action. A plaintiff may not split a cause of action.

Example: P suffers property loss and injury in a car accident. The law of res judicata allows P one cause of action for both harms. Both harms must be joined in one single lawsuit. If P sues for personal injury, but not for the property loss they will forever be barred from bringing that claim since both events arose from the same transaction or occurrence.

  1. Counter claims. FRCP 13. Claims by a defendant against the plaintiff.
    1. Compulsory counter claims require parties to raise transactionally related counter claims against the opposing party. Failure to raise a compulsory counter claim is a waiver barring the party from bringing a separate claim.

Transactionally related examples to apply on exams.

A counter claim is transactionally related if either:

  1. Some logical relationship exists between the claim and the counter claim or both the claim and counter claim raise common issues of law or fact, or if both use common evidence, or if res judicata would prevent asserting the counter claim in a subsequent action because causes of actions cannot be split.
  2. Compulsory counter claims. Supplemental jurisdiction applies to compulsory counter claims.
  3. Permissive counter claims. FRCP 13(b). Allow any claim not arising from the same transaction or occurrence.
  4. Supplemental jurisdiction does not apply to permissive counter claims.
  5. Cross claims. Claims asserted by a party against a co-party. Cross claims are always permissive. They must arise out of the same transaction and occurrence as the plaintiff’s claim in order for the court to permit its joinder. Applies to supplemental jurisdiction and no independent basis for subject matter jurisdiction is required.
  6. Impleader. Where a defendant brings a third party into the action. A defendant as a third party plaintiff may implead a non-party who may be liable to the defendant for all or part of plaintiff’s claim. Generally impleader arises in tort actions where the defendant is seeking indemnity or contribution. The impleaded party becomes a third party defendant and may raise defenses against the original defendant and against the plaintiff’s original claim. Supplemental jurisdiction applies to impleader action. There is no independent basis for subject matter jurisdiction required.

The original plaintiff can also implead a third party.

Example: When a counter claim is asserted against the plaintiff, that plaintiff may say, “I’m not at fault. There is another party that is responsible.” The plaintiff can seek indemnity or contribution on that counter claim. Generally, it is the defendant that seeks to implead a third party.

  1. Interpleader. A procedural device used by stakeholders.

Stakeholder. Sometimes an insurance company, is required to pay on a claim but don’t know who that claim is to be paid to.

1)    Statutory interpleader § 1335. More commonly used. Special requirements apply. Only minimum diversity between the stakeholder and the adverse claimants is required. In other words, at least two difference adverse claimants must be domiciled in different states.

Example: P stakeholder is from state X and adverse claimants A and B are domiciled in state X and Y. Even though P and A are both from state X.

The amount in controversy need only be 500.00 or more.

Personal jurisdiction: Nationwide service of process is allowed.

Venue is proper in any jurisdiction in which one or more of the claimants reside.

2)    FRCP 22 interpleader. Regular rules apply. Complete diversity plus 75,000 or a federal question claim must arise.

A federal court may borrow the state’s long arm statue.

Venue is where the stakeholder resides or where all the adverse claimants reside, or where the adverse claims arose.

  1. Intervention. FRCP 24. The purpose of intervention is to enable a person who is not named in the plaintiff’s complaint to enter the suit and participate in the action, joined either as a plaintiff or defendant. Intervention may be granted by right, or permissive.
    1. Right. Mandatory intervention available whenever the applicant claims an interest in the property or transaction, the subject matter of the lawsuit and disposition without his representation would impair their ability to protect that interest. Timely application is required and the applicant must show inadequate representation by the existing parties. Supplemental jurisdiction applies, so there is no independent basis is required for subject matter jurisdiction.
    2. Permissive. Upon timely application. (So as not to increase the potential for delay of the main action), an applicant may assert a claim or defense, which involves a common question of law or fact with that of the main action. No direct personal or pecuniary interest is required. The claim need not arise from the same transaction and occurrence from the main lawsuit, but must have a question of law or fact in common with the main action. Supplemental jurisdiction does not apply to permissive intervention. An independent basis for subject matter jurisdiction would be required.

Example: County of Los Angeles sues the state of California Dept. of Welfare regarding regulation that provides for disbursement of welfare benefits. Persons who are state welfare recipients, may be allowed it intervene as plaintiffs, since there interest in eligibility for the benefits involve a common question of law or fact.


Regarding joinder one must determine whether or not supplemental jurisdiction in the form of either ancillary or pendant jurisdiction applies.

Summary of joinder devices where supplemental jurisdiction applies and no independent basis for jurisdiction is required:

1)    To compulsory counter claims.

2)    To cross claims.

3)    Adding additional parties to respond to compulsory counter claims or cross claims.

4)    Impleading a third party defendant or a third party claim against the original plaintiff.

5)    Joinder of claims.

6)    Rule interpleader.

7)    Intervention of right.

Supplemental jurisdiction does not apply:

1)    Permissive counter claims.

2)    Impleader situations where the original plaintiffs counter claim is made against a third party defendant impleaded by the defendant.

3)    Necessary and indispensible parties under Rule 19.

4)    Permissive joinder of parties under Rule 20.

5)    Permissive intervention under Rule 24(b).

Class actions. Rules 23. A class action is brought by individual representatives on behalf of or against an entire group of individuals who are similarly situated. Once court permission is granted by certifying the class, potential class members are given notice generally by mail or publication and given and opportunity to remove themselves from the class, to opt out. The remaining class members are then bound by the outcome of the litigation. On an essay discuss four requirements.

FRCP Rule 23(a). A federal class action requires four elements.

1.  Numerosity. The class must be so numerous that joinder of all members is impracticable. More than 50 persons would suffice. Less than 25 is unclear.

2.  Commonality. Must be a question or questions of law or fact common to the class. To prevent prejudice if multiple suits were allowed.

Example: In an inverse condemnation proceeding brought by local residents against an airport for excessive noise. Individual outcomes might subject the airport to different restrictions or measures.

Example: Suits by the initial plaintiffs might preclude subsequent plaintiffs from obtaining adequate relief.

3.  Typicality. The named representative interest must be typical of the class.

4.  Adequacy. The named party must fairly and adequately represent the interest of the absent members of the class.

One of the three following requirements must also be satisfied:

1.  Impaired results. The prosecution of separate actions would create a risk of inconsistent results with respect to class members or substantially impair the interest of non-class members.

2.  The opposing party, the defendant has acted or refused to act such that declaratory or injunctive relief is inappropriate for the class as a whole. This class would be entitled to equitable relief, not money damages.

3.  Common question of law or fact predominate over individual issues so that a class action is superior to other available means of adjudication. Money damages are usually sought. Oftentimes mass tort situations fail certification as a class because the damages issues are unique to each individual. Requires individual notice to all class members at least by ordinary mail. This notice informs them they may request exclusion by opting out and the judgment will bind those class members that do not request exclusion. In all other class actions notice is merely discretionary.

Examples of other methods of adjudication.

One test case, or an action by a named plaintiff with a liberal right of intervention.

Traditional subject matter jurisdiction requirements apply.

Domicile is determined by the representing party.

Each member of the class must have a claim exceeding 75,000.

Exception where the party’s claims are joint or common. Here, aggregation is permitted.

Personal jurisdiction must be attained as to the named representative of the defendant class.

General venue requirements apply.

Dismissal of a class action requires court approval.


  1. FRCP 26. The primary purpose of discovery is to assist the search for facts and evidence surrounding the action as well as to simplify or eliminate issues prior to trial. Various devices are used to elicit information within a permissible scope of discovery. Discovery is usually initiated by the parties but the courts may also become involved to resolve disputes or even impose sanction in the form of costs or attorney’s fees where abuse or harassment has occurred. A party may seek discovery of any matter that is relevant to the subject matter of the action and information that is not privileged. Discoverable material need not be admissible at trial, but privileged material is both inadmissible and not discoverable.

Discovery devices.

  1. Oral and written depositions. Covered by Rules 30 and 31. Discovery of non-parties is generally done by depositions or by a judicial order compelling a non-party to bring documents to the deposition. A deposition is an out-of-court examination of a potential witness or deponent taken under oath and is subject to both direct and cross-examination by the attorneys. The examination may be either oral or written, but the deponent answers orally and a court reporter transcribes the proceeding. Any person may be deposed. Deposition to a party requires property notice to that party, where deposition of a non-party requires both service of notice and a subpoena. Depositions may be taken at any stage of the proceeding and the defendant is given the first opportunity to take depositions. At trial the deposition of a witness may be admitted to impeach the deponent’s testimony, or may be admitted as substantive evidence if the witness is unavailable under a hearsay exception for former testimony. On the other hand, the deposition of a party may be admitted at trial both to impeach and as substantive evidence.
  2. Interrogatories to parties. Covered under Rule 33. Available only to seek information from a party. Interrogatories are written questions sent by one party to be answered in writing by the other party. Only parties to the action may be served with interrogatories. Interrogatories offer a way to determine the thought processes of the opposing parties. They must be answered according to information known or discoverable upon reasonable inspection by the party. Where the request involves burdensome investigation the party may choose to provide the requesting party an opportunity to inspect the records where the information may be found. However, the party has a duty to supplement the answer when new information becomes available about such matters such as to the truth of previous responses or the identity of additional witness experts who will be testifying.
  3. Inspection and production of documents. Covered under Rule 34. Any party may request another party to produce documents, photographs, records or other tangible items, including a request to inspect real property is proper. Regarding the production of documents in the possession of a non-party a subpoena is required. The party challenging the production has the burden to show lack of good cause. A request for inspection or production may be made at any stage of the proceeding.
  4. Physical and mental examinations. Covered by Rule 35. Available only to seek information from a party. Only a party whose physical condition is in issue (a plaintiff in a personal injury action) may be examined. The party seeking an examination must obtain a court order upon a showing of good cause. A showing of a reasonable likelihood that the examination would produce information probative of the condition in issue. Both parties must be given the results of the examination. Since the party has placed physical or mental condition at issue the matter is not privileged. The doctor-patient privilege is deemed to be waived as to all other examines of that party regarding the particular condition at issue.
  5. Requests for admissions. Covered under Rule 36. Available only to seek information from a party. A device used to eliminate issues prior to trial by identifying facts that are not in controversy. Requests for admissions may only be served on parties without the need for a court order. The responding party must specifically deny the request or object to it on the basis of relevance or privilege. Failure to properly deny or object constitutes an admission in the pending action unless the party after reasonable inquiry lacks sufficient knowledge to enable admission or denial. Made at any stage of the proceeding.

Disclosure requirements.

  1. Initial disclosures. Name, address and phone number of individuals who have relevant information, copies of relevant documents, a computation of damages claimed, copies of insurance agreements under which liability might arise against an insurer.
  2. Disclosure of expert testimony. Names of testifying experts must be disclosed along with a summary of the grounds for each opinion. The disclosure must state the subject matter on which the expert is expected to testify as well as the substance of the facts and opinions to which the expert is expected to testify. Thereafter, by motion courts routinely permit further discovery either by deposition or by court order.

Retained experts who are not expected to testify discovery is allowed only upon a showing of exceptional circumstances under which is it impracticable for the party to obtain fact or opinion on the same subject by other means.

  1. Pretrial disclosure. A list of testifying witnesses, potential witnesses, deposed witnesses and their transcripts, plus a list of other documents, or exhibit that is expected to be admitted.

Rule 26(b3). Work product. A qualified immunity from discovery exists to protect an attorney work product. Work product exists of material prepared by the attorneys for their own use in anticipation of litigation. Work product is absolutely protected as to any writing, which reflects the attorney’s thoughts or mental impressions, conclusions or opinions as well as their legal theory or legal research. On the other hand, where the courts is convinced that the information being sought is essential to the parties case and there is no other reasonable means available to obtain equivalent information without due hardship then attorney work product may be discoverable. This would be material prepared by a formal consultant, insurer, accountant or agent may be discoverable.

Procedures of discovery.

  1. Motion to compel. The court may grant a motion to compel production where a party’s discovery request is not met or evasive and incomplete.
  2. Protective order. Upon motion by either side the court may issue a protective order to limit the nature and scope of examination where discovery has been abused due to annoyance, embarrassment, undue burden or expense.
  3. Sanctions. For failure to comply with a motion to compel, the court may impose various types of sanctions that get more progressively more serious.
    1. Order the matters treated as admitted.
    2. Prohibit the party from supporting or opposing the designated claims or defenses.
    3. Strike the pleadings.
    4. Dismiss the action.
    5. Render a default judgment.
    6. Hold the party or witness in contempt.
    7. Additionally the court may assess reasonable expenses incurred including attorney fees.

V.Chronology of civil proceedings.

  1. Pretrial.
    1. Pretrial conferences. FRCP 26(f). Parties must arrange a meeting and discuss their claims and defenses and a possible settlement and a plan of discovery.
    2. Scheduling conference. FRCP 16(b). Sets the time and limitations for joinder, motions, discovery as well as establishing a trial agenda.
    3. Additional pretrial conferences are discretionary. A judge has broad authority to facilitate settlement including rulings even on motions for summary judgment.
    4. Pretrial order. At the close of the pretrial conference the judge issues a pretrial order. Once issued the pretrial order supersedes the pretrial pleadings. In other words issues that are raised by the pleadings, but not contained in the pretrial order cannot be tried.
    5. Pretrial Amendments may be ordered to avoid prejudice to a party or where new evidence is discovered.
  2. Trial issues.
    1. Right to jury trial. The 7th amendment right to a jury trial in civil cases applies to the federal government as a bill or rights limitations of a court. But it has not been selectively incorporated to apply to state courts. For this reason the right to jury trials differ in state and federal court systems. In federal court the right to a jury trial is preserved for all legal issues if either party request a jury.

Does the action involve legal or equitable issues?

Beacon Theatres v. Westover. Where some claims are legal and others are equitable, there is a right to jury trial on the legal issues.

Where legal and equitable issues are joined together in one action, which involve common issues of fact the legal claim should be tried first by the jury and the equitable claims by the court. Equitable issues do not require a jury trial and include, specific performance, injunction, reformation, etc.

Dairy Queen v. Ward. Where both legal and equitable relief are being sought, the defendant may not be denied the right to a jury trial as to the damage issues by characterizing them as incidental to the equitable issues. Federal courts must permit a jury trial in any common law diversity action even if state courts would deny such a right.

  1. Jury selection. A federal jury of six persons is allowed under Rule 47 selected by a fair voir dire process.


  1. Challenges for cause. Potential jurors who are found to be either biased, related to parties, personally interested in the case, or otherwise not partial may be challenged for cause and excused with no numerical limit to the number of challenges.
  2. Preemptory challenges. Federal courts allow each party three preemptory challenges and no reason need be given for excusal for a potential juror. Preemptory challenges based on either race or gender violate equal protection and are unconstitutional in both civil and criminal cases regardless, which party makes the challenge.
  3. Motions for dispositions without trial. Either the court on its own motion, or either party may seek to terminate a civil action at some point during trial.
    1. Voluntary dismissal. Plaintiff may request a voluntary dismissal without prejudice. However, once a defendant has filed an answer or a motion for summary judgment, court permission leave of court is required to dismiss without prejudice.
    2. If a case is dismissed with prejudice, any future litigation with the claims involved will be barred.
    3. Involuntary dismissal. Either upon request by the defendant or by the court on its own motion, an order for involuntary dismissal can be imposed on the plaintiff. Generally done with prejudice and a bar to future litigation.

Examples: Failure to comply with procedural rules such as untimely filing of motions or disobeying a discovery order.

Defendant can also raise motions to attack the pleadings.

Pretrial motions.

  1. Motion to dismiss for failure to state a claim is usually filed before or with the defendant’s answer. It alleges facts insufficient to entitle the plaintiff to any relief. Formerly known as a general demurer and seldom granted.
  2. Motion to strike. Formerly a special demurer. A motion to strike attacks defects in the form of the plaintiff’s pleading. The defendant requests the court to strike any redundant, immaterial, or scandalous matter.
  3. Motion for judgment on the pleadings. After the pleadings have closed but prior to trial any party may move for a judgment on the pleadings. Such a motion can only attack defects, which appear on face of the complaint. Factual matters outside the pleadings are presented the motion shall be treated as a motion for summary judgment.
  4. Motion for summary judgment. The function for a motion of summary judgment is to dispose of issues raised by the pleading as to which there is no real factual dispute. A motion for summary judgment must be granted if the moving party can assert that from the pleading and other discovery material it appears that no genuine issue of material fact exists and judgment should be granted as a matter of law. The moving party must submit documents, interrogatories, depositions, affidavits or other discovery to support the motion and the opposing party may similarly respond. Note: The trial court does not weigh evidence. The function of the trial court here is to determine if a good faith action exists. If a good faith action does exist the motion is denied.

Defendant can file a motion for summary judgment at any time.

Plaintiff can file 20-days after the action commences.

Trial motions.

  1. Motion for directed verdict. Motion for judgment as a matter of law. At the close of the other party’s case, but before the case is submitted to the jury, either party may move for a judgment as a matter of law. The standard the moving party must show is that the opponent has presented no substantial evidence to support a jury verdict in their favor. The evidence must be viewed in the light most favorable to the non-moving party, such that no reasonable jury could find in favor of that party. After the jury has rendered its verdict this same motion can be renewed only if such a directed verdict motion was originally made before the verdict, but it is called a different name.
  2. Judgment notwithstanding the verdict. JNOV. Tests the sufficiency of the evidence. It must be filed within 10 days after entry of judgment and show:
    1. The verdict could not have been reached by reasonable persons.
    2. A motion for directed verdict must have previously been sought as a matter of law at the close of the evidence.

Post-trial motions.

Motion for a new trial. An alternative to a JNOV. Must be filed 10 days after judgment and supported by affidavits.

What would support such a motion?

  1. Jury misconduct.

Example: One of the juror’s lied on voir dire.

Example: Juror’s reached a verdict through the use of extrinsic evidence, which they were instructed not to do.

  1. Insufficiency of evidence.
  2. Newly discovered evidence.
  3. Errors of law. Errors regarding the judges ruling on admissibility of evidence, or jury instructions with the examples.
  4. Excessive or inadequate damages.
    1. Remitter. A motion for a new trial by the defendant unless plaintiff agrees to reduce the damages award.
    2. Additur. A motion for a new trial by the plaintiff unless the defendant agrees to increase the damages award. Not a basis for a new trial in federal courts.
    3. Right to appeal. Only applies to final judgments. A final judgment is one that disposes of all issues as to all parties.

Exception: Interlocutory orders are reviewable by right. They include, the granting, dissolving or modifying an injunction, also areas dealing with appointments of receiverships, and certain patent infringement cases.

Appeals courts examine a trial courts decision for errors in applying the law. Factual determinations of the trial court are not disturbed.

An appeal is filed within a federal court within 30 days of final judgment.

VI.Binding effect of judgments. Once a final judgment has been rendered what is the final effect on any future actions.

  1. Res judicata. Claim preclusion that prevents relitigation of a cause of action once final judgment on the merits has been rendered by a court, which has proper personal and subject matter jurisdiction. The plaintiff is barred from trying that cause of action in a later proceeding.

Cause of action is defined as assertion of all claims arising out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim.

Res judicata binds parties and persons in privity with parties, such as successors in interest, guardians or trustees.

Res judicata does not bind third parties.

A plaintiff may not split a cause of action. The action must request all relief for harm resulting from the same transaction or occurrence from one single action.

  1. Merger. Prevents a winning plaintiff from further recovery. A victorious plaintiff who splits a cause of action may not seek additional recovery for the other loss caused by the same harm.  The plaintiff’s rights are said to have merged into the first judgment. Merger prevents a winning plaintiff from further recovery.
  2. Bar. Prevents a losing plaintiff form further recovery. Here, a plaintiff who splits a cause of action may not seeks subsequent recovery for any other loss cause by the same harm. The first judgment will bar the second suit. A bar prevents a losing plaintiff from further recovery.
  3. Collateral estoppel. Issue preclusion. Bars subsequent relitigation of those issues, which were actually litigated and necessarily determined.

Who is bound under collateral estoppel? Parties and persons with privity. Third parties may use collateral estoppel either defensively as a shield or offensively as a sword to deny liability.

  1. Defense use of collateral estoppel. A and B are involved in a car accident. B is an employee of C. If A sues B for negligence and loses, C can then use collateral estoppel as a shield to prevent A from later suing C. The issue of B’s lack of negligence has already been resolved in the first suit and may not be relitigated.
  2. Offense use of collateral estoppel. Here, collateral estoppel is used to establish liability. SEC is a plaintiff and sues D for stock fraud and wins. A, a private person plaintiff is now suing D for the same violation established in the SEC case. A, can now use the issue of defendant’s liability for stock fraud in the previous action. He may use it as a sword to establish liability.

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