Civil Procedure Outline for the California Bar Exam


A. Does the Ct Have Authority Over the Parties?

1. Personal Jurisdiction – Can P sue D in this STATE?

  1. 2 Step Process

    1. Satisfy a statute (i.e. long arm statute); AND

    2. Satisfy Constitution.

  2. Traditional Assertion of jurisdiction. – Contact b/n D and forum state

    1. Domicile in state (place where person maintains his permanent home)

    2. Presence in forum when served (unless procured by fraud).

    3. Consent.

      1. Appearing in action.

      2. By contract

      3. Appointment of agent for service.

      4. Implied consent (i.e. non-resident motorists’ statutes).

  3. Assertion of jxd over non-residents

    1. Test: Does defendant have such minimum contacts with the forum such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? (Intl Shoe Test)

    2. Must meet:

      1. State long-arm statute AND

        1. If given, ask whether it comports w/ constit requirements.

      2. Minimum contacts – some tie w/ D and the forum

        1. Purposeful availment – D voluntarily reached out to forum.

          1. Trying to make $ in the state

          2. Using the roads

          3. Causing some effect in the forum

          4. Interactive website used by state’s residents

        2. Foreseeability – That D would get sued in the forum.

      3. Fairness (fair play and substantial justice)

        1. Relatedness between the contact and P’s claimDoes claim arise from D’s contact with the forum?

          1. Specific Personal Jurisdiction – D w/limited ties w/the forum can only be sued there for a claim arising from those activities

          2. General Personal Jurisdiction – D w/continuous and systematic ties w/the forum may be sued there for any claim that arose anywhere in the world

            1. Domicile

            2. Incorporation

            3. Major Facility

        2. Convenience – OK unless puts D at severe disadvantage – relative wealth of parties not considered

        3. State’s interest – interest in protecting citizens or providing redress for a resident

Remember: My Parents Frequently Forgot to Read Children’s Stories

2. In rem jurisdiction

  1. If dispute related to prop and if property in state→ jurisdiction.

  2. If dispute not related to prop attached→ must satisfy Intl Shoe (above)

3. Quasi in rem jurisdiction – see in rem

4. Notice & Service of Process

  1. Delivery of summons and copy of complaint to D.

  1. Serve process 120 days of filing case (or case dismissed w/o prej.)

ii) By nonparty at least 18

  1. Types

  1. Personal – papers given to D anywhere in the forum state

ii) Substituted – at D’s usual abode to someone of suitable age and discretion who resides there

iii) On D’s Agent – authorized to receive service and w/in scope of agency

    1. Waiver by mail – mail to D a copy of the complaint and 2 copies of a waiver form, w/a prepaid means of returning the form – if D executes and mails the waiver form to P w/in 30 days, D waives formal service

      1. If D fails to return form, and P must personally serve him and D did not have good cause for failing to return, D must pay for the costs of service

    2. As permitted by state law – can use methods permitted by state law of the state where the federal crt sit or where service is effected

  1. Geographic Limitation – fed crt can serve process outside the state in which it sits only if state law allows

      1. Okay with long-arm statute, bulge rule (new parties within 100 miles of courthouse), statutory interpleader.

  2. No Immunity From Serviceno immunity, D can be served for a fed civil case even if he is only in state to serve as a witness in another civil case

  3. Other Documents – for later papers (e.g. answer, motions, discovery) serve by delivering or mailing the doc to the party’s atty – if mailed, add 3 days for any req. response

B. Does the Ct Have Authority Over the Subject Matter?

1. Subject Matter Jurisdiction – now that we know that P can sue D in a state – does he go to state or federal court?

  1. State courts are courts of unlimited jurisdiction. Only limits are statutory.

  2. Federal courts are courts of limited jurisdiction.

    1. Only have jxd over two types of claim: Diversity and Fed Question

      1. Diversity of Citizenship.

        1. Complete diversity required. (no P and D can be from same state) – Citizenship Determined By:

          1. Natural Person – who is a U.S. citizen is the state of domicile

            1. Domicile – established by presence in state AND intent to make it his permanent home

            2. Person can only have one domicile at a time

            3. Test for diversity occurs when the case is filed (party can move into state after)

            4. Decedents, minors, incompetents – use citizenship of person being represented, not the fiduciary

          2. Corporations –citizenship in state where incorporated AND state where corp has its principal place of business (2 citizenships)

            1. PPB = headquarters OR where corp does most bus activity – where corp decisions are made

            2. Unincorporated assoc – look to citizenship of all members

          3. Class Action – Look to citizenship of class rep

          4. Aliens – fed. crt has subject matter jxd over disputes b/n a citizen of a state and an alien, but not two aliens

        2. Amount in controversy – Must exceed 75,000 (w/o costs & interest)

          1. Aggregation – adding 2 or more claims to meet the amount req.

            1. 1 P vs. 1 D – Yes; 2 P’s vs. 1 D – No.

            2. Separate claim against multiple D’s – no.

            3. Joint and several liability claims against multiple D’s – yes.

          2. Test: Good faith allegations that claim exceeds 75,000.

            1. Unless clear legal certainty that he cannot recover that much.

            2. If less recovered, court may award costs.

          3. Equitable Relief – P sues D for an injunction to tear down part of his house that blocks P’s view – Two Tests:

            1. Plaintiff’s Viewpoint – does the blocked view decrease the value of P’s property by more than 75k?

            2. Defendant’s Viewpoint – would it cost D more than 75k to comply w/the injunction?

        3. Exceptions – even if req. for diversity are met, fed. crts will NOT hear actions involving issuance of divorce, alimony, child custody, or probate

      2. Federal QuestionFederal courts have jurisdiction over all civil actions arising under the Constitution, laws or treaties of the U.S.complaint must show a right or interest founded substantially on a federal law

        1. Citizenship of parties is irrelevant

        2. Amount of controversy is irrelevant

        3. Well pleaded complaint rule – it is not enough that some fed. issue is raised by the complaint, P’s claim itself must arise under federal law – ask – Is the P enforcing a federal right?

    2. NOTE – Diversity and FQ can get a case into fed. crt – but once it is there, for any additional claims, each claim must invoke FQ or diversity to come into the case – unless it satisfies Supplemental Jxd (below)

  3. Supplemental Jurisdiction – a non-federal, non-diversity claim can be heard in fed. crt if it shares a common nucleus of operative fact with the claim that invoked fed. subject matter jxd (always met by claims that arise from the same T/O)

    1. Limitation – no Sup Jxd if:

      1. Claim is asserted by P,

      2. In a diversity of citizenship case, AND

      3. It would violate complete diversity

    2. Note: already in fed ct, but there is an add’l claim that is not FQ or diverse – cannot be used to get case into fed crt

    3. Can also use to overcome a lack of amount in controversy

    4. Anyone but plaintiff may bring claims against anyone arising out of the same transaction of occurrence.

    5. Discretionary Factors – courts has discretion NOT to hear the supplemental claim if (1) the fed question is dismissed early in the proceeding, or (2) the state claim is complex, or (3) state law issues would predominate

  4. Removal – Within 30 days after service of first removable document (usually complaint), defendant may remove to federal courts. All D’s must agree.

      1. Can remove only to fed district embracing state ct where case originally filed.

        1. Test – removable if case could have been heard in fed ct.

      2. Diversity case rules: no removal if any D is citizen of forum where action is filed (only applies in diversity cases); no removal more than 1 yr after case filed in state ct.

      3. P can never remove

C. Is the court the proper place to resolve the dispute?

1. Venue (which fed ct?)

  1. Venue is proper:

    1. Where all defendants reside, if all defendants reside in the same state, Or

      1. Note: If all D’s reside in diff districts of the same state, venue is proper in a district where any of them resides.

    2. Where a substantial part of the claim arose.

    3. Diversity: If neither a nor b, then where any D is subject to PJ.

    4. FQ – If neither a nor b, then any district where any D is found.

  2. Determining Residence for VENUE PURPOSES

    1. Individuals – Domicile

    2. Corporation – reside in all districts where they are subject to personal jurisdiction when the case is filed (corp may have 2 citizenships, but may reside in every district in the U.S.)

      1. If a state has more than one judicial district, the corp is deemed to reside in any district in the state w/in which its contacts would be sufficient to subject the corp to PJ

  3. Special Cases

    1. Local Actions – must be filed in district where the land lies.

    2. Transfer of Venue – a fed crt may transfer the case to another fed crt but can only transfer to a district where case could have been filed (crt that has PJ over the D)

      1. If venue in original forum proper, may transfer based on:

        1. Factors: convenience of parties and witnesses, interests of justice, no judge qualified to act, and series of public and private factors

          1. Public Factors – what law applies, what community should be burdened w/jury service, keeping local controversy in the local crt

          2. Private Factors – convenience, where are the witnesses and the evidence located

      2. The court to which case is transferred MUST apply the choice of law rules of original court (even if P sought the transfer)

      3. If venue in original forum improper, ct may transfer in interests of justice or dismiss

    3. Forum non-conveniens – If more appropriate and convenient forum elsewhere, court may dismiss (not transfer).

      1. Transfer is impossible b/c the more convenient court is in a different judicial system (e.g. foreign country)

      2. Must have an alternative forum. Similarity of relief. Fact that P may recover less is irrelevant.

      3. Dismissal based upon public factors (court congestion, jury service, local issues resolved locally, substantive law) and private factors (convenience, availability of evidence/witnesses, process, costs, ease).


1. Erie Doctrine

1) In diversity cases, federal courts must apply state substantive law and federal procedural law.

  1. If FRCP or FRE on point conflicts with state law, apply federal law if arguably procedural Supremacy Clause
  2. If not on point and the issue is substantive law, apply state law – usual types of substantive state law:
    1. Elements of a claim or defense
    2. Statute of limitations
    3. Rules for tolling statutes of limitations
    4. Conflict (or choice) of law rules
  3. Determining whether procedural or substantive:
    1. Outcome determinative – if ignoring/applying state rule affects outcome → substantive (state law applies)
    2. Balance of interests – does either fed. or state system have a strong interest in having its rule applied?
    3. Avoid forum shopping. If not applying state law causes flock to fed ct→ apply state law



  1. Fed crts use notice pleadingThe pleading must put other party on notice.

  2. Rule 11

    1. Atty. must sign all pleadings, certifying that after a reasonable inquiry:

      1. The paper is not for an improper purpose

      2. Legal contentions are warranted by law – not frivolous, and

      3. Factual contentions and denials of factual contentions have evidentiary support

    2. Sanctions may be levied against atty, firm, or party – designed to deter

      1. Before imposing , crt must give chance to be heard

    3. Other party SERVES motion but cannot file it- the party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions

      1. Note – no safe harbor if court brings sanctions (not party)

  3. Complaint

    1. Must contain:

      1. Statement of SMJ (Grounds for federal jurisdiction).

      2. Statement of the claim. (short and plain)

        1. Fed crts traditionally req. notice pleading – only enough detail to put the other side on notice – now require more detail

        2. Must plead facts supporting a plausible claim

      3. Demand for relief.

    2. Special matters: must be pleaded w/ particularity or specificity.

      1. Fraud, mistake, special damages

  4. Defendant’s response – Rule 12 req. D to respond by (1) Motion or (2) Answer within 21 days of service of process.

    1. May file answer – respond to allegations of complaint

      1. Admit, deny, lack sufficient info to admit or deny

      2. Failure to deny can constitute an admission on any matter except damages

      3. Raise affirmative defenses (i.e. SOL, SOF, res judicata, self defense)

        1. Must plead affirmative defenses in answer.

    2. May file Rule 12 motion.

      1. Issues of form

        1. Motion for more definite statement (pleading so vague D cannot frame a response)

        2. Motion to strike – aimed at immaterial things – insufficient defense or any redundant, immaterial, or scandalous matter

      2. Matters of abatement

        1. Waivable – Venue, Process, Service of process, lack of PJ

          1. Must be put in first R12 response, or else waived

        2. Not Waived – lack of SMJ, Failure to join indispensable party

      3. Matters of merit – 12(b)(6), judgment on pleadings, Summary Judgment.

    3. Timing

      1. Answer is due w/in 21 days after service

      2. Answer is due w/in 60 days after request for waiver was mailed if service by mail and waives formal service

      3. If denial of a 12(b) motion, then 14 days to answer after denial

    4. Effect of Failure to Answer

      1. Default Judgment Entered

      2. Notice of Default Req.

  5. Counterclaim – Rule 13 – claim against an opposing party – part of D’s answer

    1. Compulsory – Claim arises from the same T/O as P’s claim

      1. Must be filed w/ D’s answer in pending case or waive right to sue – CANNOT be asserted in another action (this is the only compulsory claim)

      2. If D never answered, rule not violated (D can still sue)

    2. Permissive – Does NOT arise out of same T/O as P’s claim.

      1. May file it w/answer or can sue in separate action.

    3. MUST then assess SMJ

      1. If no SMJ, may come in under Supp. Jxd

  6. Cross-Claim – claim against a co-party on same side of suit

    1. Must arise out of same T&O as underlying action (not compulsory)

    2. Must have independent basis for jurisdiction (Diversity, FQ or supplemental).

  7. Amending Pleadings

    1. Plaintiff has right to amend once w/n 21 days after D serves his 1st Rule 12 response

    2. Defendant has right to amend once within 21 days of serving answer.

    3. If there’s no right to amend, may seek leave of court to amend – Allowed if justice so requires – Factors:

      1. Prejudice

      2. Futility of Amendment

    4. Variance – where the evidence at trial does not match what was pleaded

      1. May move to amend the pleadings after trial to conform to evidence, as long as no objection was made during trial. Otherwise, if D did object, evidence is at variance w/ the pleadings, and not admissible.

    5. Amendment after SOL has run.

      1. Relation back – treated as though filed when original filed

        1. Amended pleadings relate back if concern same conduct or T/O as the original pleading

      2. Amendment to add new party or change D (usually when P sues the wrong D first , but the right D knew about it) – allowed if:

        1. Concerns the same conduct, transaction or occurrence.

        2. The new party knew of action within 120 days of filing.

        3. The new party knew that but for the mistake, it would have been named originally.


1. Joinder of Parties

  1. Permissive Joinder – parties who MAY be joined

    1. Test:

      1. Claims arise out of the same transaction or occurrence, AND

      2. Raise at least one common question.

    2. THEN must assess SMJ – can the case as structured invoke diversity or federal question jxd

  2. Compulsory Joinder – Necessary & Indispensible Parties – MUST be joined.

    1. Is Party Necessary? Test (if absentee meets any of these, ct orders joinder):

      1. Without absentee, court cannot afford complete relief among the parties.

      2. Absentee’s interest may be harmed if not joined; or

      3. Absentee claims an interest which subjects a party to multiple obligations.

      4. Joint tortfeasors are NOT necessary parties.

    2. Is Joinder Feasible?

      1. Feasible if there is personal jxd over party – amenable to process and joining party will not destroy diversity

    3. If joinder is NOT feasible (destroy diversity) court may either proceed without party, or dismiss case calling the absentee “indispensable.”

      1. Factors: Alternative forum available, actual likelihood of prejudice, can the crt shape relief to avoid potential harm?

2. Joinder of Claims– may join any number and type of claims against a D, when multiple Ps or Ds are involved, it is essential only that at least one of the claims arise out of the transaction in which all were involved

  1. Impleader/Third Party ComplaintD wants to bring in someone NEW (Third-Party-Defendant) for one reason – the TPD may owe indemnity or contribution to D on the underlying claim

    1. Claim against TPD must be derivative – for contribution or indemnification.

    2. D has right to implead within 14 days after serving answer. After that, need court permission.

    3. After TPD is joined, P may assert a claim against TPD and vice versa as long as it arises from same T/O.

    4. Any party may file claims against any other party so long as they have SMJ (diversity or FQ) or supplemental jurisdiction for all claims.

    5. Bulge Rule – parties joined as necessary or per impleader may be served out of state w/in 100 miles from fed courthouse

  2. Intervention – absentee wants to join a pending suit – can come in a P or D. Must make timely application.

    1. Intervention of right – A’s interest may be harmed if not joined, and interest not adequately represented.

    2. Permissive intervention – A’s claim or defense and the pending case have at least one common question. Court has discretion.

    3. Requires SMJ.

  3. Interpleader – Stakeholder forces all claimants into a single lawsuit to avoid multiple litigation and inconsistency.

    1. Rule 22 interpleader-

      1. Diversity – stakeholder must be diverse from every claimant

      2. Amount in controversy – Greater than 75k.

      3. Venue – Same as all cases

      4. Service of process – Same as all other cases.

    2. Statutory

      1. Diversity – One claimant must be diverse from another claimant.

      2. Amount in controversy – $500 or more.

      3. Venue – Anywhere district where any claimant resides.

      4. Service of process – Nationwide service.

  4. The Class Action

    1. Initial Requirements (need all)

      1. Numerosity – class so numerous that joinder of all members is impracticable;

      2. Commonality – there are questions of law or fact common to the class;

      3. Typicality – the claims of the representative parties are typical of the class; and

      4. Representative is Adequate – the representative and her lawyer will fairly and adequately represent the class.

    2. Types (in addition to requirements, must fit into one of following)

      1. Prejudice – class treatment necessary to avoid harm to class members or to party opposing class or risk of inconsistent results (i.e. fund depletion b/c of many claimants)

      2. Injunction/Declaratory judgment – Class members treated alike in some way. This relief is appropriate for the class as a whole (i.e. EE discrimination case against Employer)

      3. Damages/Common Question Suits – (i.e. mass tort)

        1. Common questions predominate.

        2. Class action superior method to handle dispute.

    3. Certification – crt must determine at an early practicable time whether to certify the case to proceed as a class action – crt must define the class and the class claims, issues, and defenses and must appt. class counsel

      1. Considerations

        1. Interest of individual control

        2. Extent and nature of lit elsewhere on the same subject

        3. Desirability of a joint trial, and

        4. Difficulties in managing a class action

    4. Notification

      1. Class Action Types 1 and 2 – no notification req.

      2. Damages Class Action (type 3) – class rep must notify class members, including individual notice to all reasonably identifiable members telling them they can:

        1. Opt out, they will be bound if they don’t opt out, and they can enter a separate appearance through counsel.

      3. Must state nature of the action, definition of the class, class claims, issues, and defenses and the binding effect of the judgment

    5. Who is bound by class judgment

        1. Class 1 and 2 – All members, there is no right to opt out

        2. Class 3 – All who did not opt out

    6. Subject matter jurisdiction

      1. FQ – asserting a claim arising under fed law

      2. Diversity (citizenship of representatives only)

        1. Amount in controversy greater than

          1. Traditionally – > 75k for each class members.

          2. MT – Ok if rep’s claim > 75k

      3. So as long as the rep is diverse from all Ds and the rep’s claim exceeds 75k, then SMJ will be satisfied

    7. Settlement or dismissal – Requires court approval.

      1. Crt gives notice to class members to get their feedback on whether case should be settled or dismissed

      2. Crt may give class members a second chance to opt out



  1. Required disclosures – Must be produced even if not asked for.

    1. Initial disclosures – w/in 14 days of R26 conference, identify persons or documents likely to have discoverable information that the disclosing party may use to support its claims or defenses/computation of damages

    2. ExpertsIdentify experts who may be used at trial and produce report containing opinions, data used, qualifications, compensation, etc.

    3. Pretrial – w/in 30 days b/4 trial, must give detailed info about trial evidence, including documents and ID of witnesses

  2. Discovery tools – After Rule 26(f) meeting – can be used to get add info from a non-party

    1. Types:

      1. Deposition – deponent gives sworn oral answers to questions by counsel – May be used for parties or nonparties.

        1. Nonparty – Use subpoena or subpoena duces tecum (to bring docs) BUT he is not compelled to attend

          1. Unless deponent agrees, cannot be req. to travel more than 100 miles

        2. Party – need not be subpoenaed, notice of depo, properly served is sufficient to compel attendance

        3. Cannot take more than 10 depos or depose the same person twice w/o crt approval or stip

        4. Depo cannot exceed 1 day of 7 hrs

        5. At trial, depo may be used to: impeach, any purpose if adverse party or deponent unavailable, unless absence was procured by the D

      2. Interrogatories – questions propounded in writing to another party to be answered in writing under oath

        1. May only be sent to parties.

        2. Must respond w/in 30 days

        3. Party may respond w/ignorance

        4. Cannot serve more than 25 (including subparts) w/o crt order

      3. Request to produce – May be sent to parties or nonparties requesting that they make available for review and copying various documents or things including ESI or permit entry upon designated prop for inspection, measuring, etc.

        1. If 3p – Use subpoena.

        2. Must respond w/in 30 days

      4. Physical or mental examination – Only available through court order.

        1. Must show health is in actual controversy and “good cause”

        2. Party seeking chooses the suitably licensed person to perform the exam

        3. Person examined may obtain copy of report by asking for it, but will waive his patient privilege

      5. Request for admissions – Request to party to admit truth of any discoverable matter.

        1. Must respond w/in 30 days of service

        2. Response is to admit or deny

        3. Failure to deny is tantamount to admission

    2. Sworn statement – that attorney not using discovery for improper purpose.

    3. Duty to supplement – continuing duty to correct information.

  3. Scope of Discovery– Anything relevant to claim or defense.

    1. Relevant – Reasonably calculated to lead to discoverable evidence.

    2. Broader than “admissible” – may be able to discover hearsay, even though it would be inadmissible at trial

    3. Privileged matter is not discoverable.

    4. Attorney work-product/Trial Prep Material – Material prepared in anticipation of litigation generally not discoverable.

      1. Factual informationmay be discovered upon showing of substantial need and that information not otherwise available.

      2. Opinion, conclusions, and theories are absolutely protected.

      3. Need not be generated by atty – can be made by party or rep of party

    5. Experts – If testifying may be deposed, if not expected to testify, then no discovery absent exceptional need.

      1. Consulting Experts – no discovery absent exceptional need (info not available elsewhere)

  4. Enforcement of discovery rules

    1. Protective Order – responding party seeks PO (e.g. request is overburdensome, or involves trade secrets

    2. Partial Violation – receiving party answers some and objects to others – if the objection are not upheld, order to compel w/costs of bringing motion

    3. Total Violation – receiving party fails completely to attend depo or respond to requests – motion to compel plus costs and certify good faith attempt to obtain discovery.

      1. False denial of request to admit: recover costs/A’s fees of having to prove the issue

    4. Sanctions if party seeking certifies that he tried in good faith to get info w/o crt involvement – crt may:

      1. Treat matter as admitted

      2. Disallow evidence on an issue

      3. Establish the issue adverse to the violating party

      4. Strike the pleadings

      5. Dismiss COA or entire action (bad faith)

      6. Enter default judgment (bad faith)

      7. Hold in contempt, except for refusal submit to phy or mental exam


Termination of case without trial

  1. Dismissal

    1. Voluntary dismissal – may be allowed on crt order – P may dismiss once w/o prej by filing a notice of dismissal b/4 D serves answer or moves for SJ.

      1. P may have to pay D’s costs

    2. Involuntary – on D’s motion, crt may dismiss for P’s failure to comply w/fed rules or court order

  2. Default and default judgment.

    1. Default – if D fails to appear or respond, P must show clerk that D has failed to respond w/in 21 days after being served w/process

    2. Default judgment – Must take default and get a judgment. Clerk can enter DJ if:

      1. D made no response at all, claim for sum certain, affidavit of amount owed, and that D is not a minor or incompetent.

      2. If P cannot assert any of the above, he must go to the crt itself for the judgment

      3. DJ cannot exceed what the claimant demanded in his complaint

    3. Relief from default

      1. If after default, but before default judgment – D may try to set aside default by showing good cause and a viable defense – good cause usually means excusable neglect

      2. After judgment – motion to set aside judgment.

  3. Dismissal for Failure to State a Claim (Rule 12(b)(6)) – Take all allegations in complaint as true and decide if P should still win

    1. Tests only the sufficiency of P’s allegations – crt ignores legal conclusions and looks at allegations of fact

    2. Ct does NOT look to evidence, only sufficiency of P’s allegations

    3. After pleadings are closed (after D has filed answer), may file a motion for judgment on the pleadings (same as 12(b)(6)).

  4. Summary Judgment

    1. Test: Moving party must show that there is no dispute on a material issue of fact, and that he is entitled to judgment as a matter of law.

    2. Court looks at evidence in a light most favorable to nonmoving party (to determine whether there is an issue of fact)

    3. Purpose is to dispose of cases not fit for trial – trial is only appropriate to resolve disputes of fact

    4. Evidence must be admissible (i.e. Not hearsay) – parties usually submit affidavits for crt to consider as evidence

      1. Pleadings are not evidence (unless verified under oath)

    5. Timing – at any time up until 30 days after the close of discovery

    6. Cannot appeal denial of MSJ

  5. Conferences and meetings

    1. Rule 26(f) Conference – at least 21 days before scheduling conference, parties discuss claims, defenses, and settlement – must form discovery plan and present to crt w/in 14 days

    2. Scheduling Order – crt enters order scheduling cut offs for joinder, amendment, motions etc.

    3. Final Pretrial Conference – determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that supersedes the pleadings.

      1. Serves as a roadmap of issues

      2. Prevents surprises at trial


Jury Trial

  1. 7th Amendment guarantees right to jury trial for actions at law exceeding $20, but not for actions in equity.

    1. Court will look to the nature of the remedy.

    2. Federal courts will give questions of law to the jury and the judge will decide equitable issues. Usually will try legal issues first.

  2. Demand – must demand in writing no later than 14 days after service of last pleading raising jury triable issues.

  3. Jury selection – Unlimited strikes for cause, 3 peremptory strikes per side (must be used in race and gender neutral manner). – b/c jury selection is state action would violate EPC

  4. Need at least 6 jurors, no alternates

  5. Verdict can be a general verdict, a special verdict, or a general verdict with interrogatories.

  6. If there is a jury or judgment, can it be disregarded?

    1. Motion for Judgment as a Matter of Law (JMOL) – exceptional order – takes case away from jury. (same idea as MSJ but asked for @ trial)

      1. Made after opposing side has been heard.

      2. Defendant can move twice, once after P has rested, and once after all evidence heard. P can only move once (after all evidence)

      3. Standard: Evidence must be such that reasonable persons could not disagree on the result.

        1. Court will take evidence in the light most favorable to the party opposing the motion.

    2. Renewed Motion for Judgment as a Matter of Law (RJMOL) – same as JMOL but comes up after trial

      1. Situation – judge did not grant motion for JMOL, and the case went to the jury, jury returns a verdict for one party, and the crt enters judgment on the basis of the verdict – now the losing party files a renewed JMOL

      2. Losing party may file; if granted = entry of judgment for him.

      3. Standard: Court must conclude that jurors could not have reached the correct result. (same as (a))

      4. MUST HAVE moved for JMOL at trial at the close of all evidence to bring RJMOL (otherwise, it is waived).

      5. If RJMOL is granted, the crt enters judgment for the party that lost the jury verdict – move w/in 28 days after entry of judgment

    3. Motion for New Trial – judgment entered but errors require new trial

      1. Within 28 days after entry of judgment

      2. Grounds include: prejudicial error that makes judgment unfair (wrong jury instruction), new evidence, prejudicial misconduct of party/attorney/3rd party/juror, judgment against weight of the evidence, inadequate or excessive verdict.

      3. Less drastic than grant of RJMOL

      4. Remittitur – crt gives P choice of accepting amount less than the jury verdict or submitting to a new trial

      5. Effect of Failure to Move for RJMOL or New Trial – on the basis of insufficiency of the evidence, party is precluded from raising on appeal the question of evidentiary sufficient to support new trial

    4. Motion for Reconsideration – party can move for reconsideration of a prior crt order when circumstance justify (i.e. new evidence)

    5. Motion to Set Aside Judgment

      1. Grounds – clerical error (made anytime), mistake or excusable neglect (made w/in reasonable time, never over 1 yr), new evidence that could not have been discovered w/due diligence for a new trial motion (reasonable time, never over 1 yr), judgment is void (reasonable time)


  1. Final Judgment Rule – judgment must be final – ultimate decision by the trial crt on the merits of the entire case

    1. Ask: after making this order, does trial judge have anything left to do on the merits of the case? If yes, not appealable.

    2. Must file notice of appeal IN TRIAL CRT w/in 30 days after entry

  2. Interlocutory Appeals (Exceptions) – may be appealable even though NOT final judgment

    1. Interlocutory Orders Reviewable as of Right – orders granting, modifying, refusing injunctions; appoint/refusing to appoint receivers; findings of patent infringement; orders affecting possession of property (e.g. attachments)

    2. Interlocutory Appeals Act – allows appeal of non-final order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees

    3. Collateral Order Rule – Final order on issue distinct from the merits of the case, re an important legal Q, and is essentially unreviewable if parties must wait until final judgment. (ex. 11th Amendment immunity).

    4. Court may order final judgment as to one claim if there are multiple claims.

    5. Extraordinary Writ – not technically an appeal, but an original proceeding in appellate crt to compel the trial judge to make or vacate a particular order – available only to enforce a clear legal duty

    6. Class Action: Appellate ct has discretion to review order denying or granting certification of class in class action suit.

      1. Must seek review at the Court of Appeal (not in the trial crt) w/in 14 days of order

      2. Appeal does not stay proceedings at trial crt


  1. In General – does judgment already entered in Case 1 preclude litigation of any matters in Case 2

    1. If Case 2 is in a different crt system, apply preclusion law from system that decided Case 1

    2. If judgment in Case 1 has been appealed (or the time for appealing has not yet expired) judgment IS STILL entitled to claim/issue preclusion effect (but not in CA)

    3. Affirmative Defenses – D must raise them in his answer

  2. ResJudicata (Claim Preclusion) – P may only sue on a cause of action or claim once – only one chance to vindicate all rights to relief

    1. Where there is a final judgment on the merits, res judicata precludes relitigating the cause of action/claim.

    2. Requires – VOSS W

      1. Valid Final Judgment

        1. GR: any judgment except dismissals based on jxd, venue or indispensable parties = “on the merits” unless ct said otherwise when it entered judgment.

        2. Default Judgment IS on the merits

        3. Judgment based upon discovery abuse IS on the merits

      2. On the Merits

      3. Same Parties

      4. Same Claims

        1. Modern Transaction Approach – requires P to assert all claims arising out of the same transaction or occurrence that is the subject of P’s claim in the first Case (i.e. P cannot bring up new claim in Case 2 that he should have raised in case 1 relating to the same incident)

          1. Note: This contrasts CA’s Primary Rights Doc

      5. Was Actually Litigated (or could have been litigated)

    3. Exception: If some personal injury after recovery for property damage then may bring claim.

  3. Collateral Estoppel (Issue Preclusion)

    1. Issues of fact actually litigated and essential to the judgment in a first action are conclusive in a subsequent, although different, action between the plaintiff and the defendant or their privies

    2. Precludes relitigation of a particular issue previously litigated and determined – issue is deemed established in Case 2 so it cannot be re-litigated (narrower)

    3. Requires

      1. Case 1 ended in a valid final judgment on the merits.

      2. The same issue was actually litigated and determined in Case 1.

      3. The issue was essential to the judgment in Case 1 – w/o this issue, the judgment in Case 1 would have been different

      4. May only be asserted against one who was a party to Case 1 (or represented by a party). Due Process requirement.

    4. By whom can it be asserted? Mutuality v. Nonmutual.

      1. Traditional View (Mutuality) – may be asserted only by one who was a party to Case 1

      2. Modern Trend (Nonmutual) – is to allow one who was not a party in Case 1 to argue collateral estoppel.

        1. Nonmutual defensive collateral estoppel.

          1. P sues D1 and loses. P sues D2, who can argue nonmutual collateral estoppel.

          2. Asserted by D who was not a party in Case 1, but is now a D in Case 2

        2. Nonmutual offensive collateral estoppel

          1. Asserted by one who was not a party in Case 1 and is the Plaintiff in Case 2)

          2. P sues D1 and D1 counterclaims and wins. D2 then argues collateral estoppel against P. Or, P sues D1 and loses b/c contrib. negligent. D2 (new P) sues former P, arguing CE as to neg.

          3. Most courts do not allow.

          4. However, trend to allow if fair; Factors to consider if fair:.

            1. Full opportunity to litigate the first case.

            2. Whether multiple litigation was foreseeable.

            3. Whether person could have been joined in first case.

            4. There are no inconsistent judgments on the record.

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