Civil Procedure Skeleton Outline

1. The Erie Doctrine – Which law are the Fed. Cts to apply?
A. Erie Only applies in Diversity cases
1. FQ needs federal interpretation by its nature, so cts apply federal law
always
B. IN deciding some issue, must the ct apply state law? Erie
1. If substantive issue, they must
2. Empowered by:
 Rules of Decision Act
1. I.E. if substantive, RDA problem
 Tenth Amendment
1. USFG cannot invade power that is reserved to the states
C. Erie Analysis Process
1. Hanna Prong (Unguided World of Erie)—Is there a federal directive on
point?
 If so, it winstrumps state law if valid
1. How is validity weighed?
i. Rules Enabling Act/Constitution
2. Fed. Cts can apply if doing so will not abridge enlarge or
modify a substantive right—SCOTUS will not do this if the
issue is arguably procedural
1. They have never found the federal
directive to be unconstitutional—they
write FRCP
2. Guaranty Test
 Outcome Determination
1. If federal law were to be applied, would the case have a
different result?
2. If so, this is why Fed. Cts use state lawwant
homogeneous law on state issues
3. Byrd Test—Interest Balancing Test
 Guaranty TestOD
 Is the issue bound up with a state law?
 Is there a countervailing federal interest?
 Judge must weigh the state and federal interest to decide which law
prevails
4. Hanna Test
 Twin Aims of Erie
1. Forum Shopping = Bad
i. Would litigants flock to Fed Ct if state law is
ignored?
2. Inequitable Administration of the Law = Bad
i. Want uniformity with justice afforded to citizens
of a state
1. In theory—result will be the same despite
different system
5. In question, apply all tests to your issue
 Why?
1. SCOTUS has never overruled any of these test – all are
valid, use all to make conclusion
2. Keep it mechanical
 Example
 1. OD Test (Guaranty)Weighing Mechanism (Byrd)Twin
Aims (Hanna)conclude
i. Remember to check for Federal Directive First!

2. Pleadings – What documents do you file in court?

A. Complaint (P)
1. Engaged one filed by P
2. Rule 8(a) – what the complaint must contain
 Statement of SMJ (sometimes venue)
 Short/Plain Claim that P is entitled to Relief
1. Ignore conclusions of law
2. Look at at facts contextually—plausibility test
i. We aren’t sure entirely what plausibility means—
plausible v possible?
3. Judge is to use his experience and common sense to weigh
 Demand for Relief
3. If P does not complain properly—risk of 12(b)(6)
 Moving party must show that what P pleads can be granted no
relief and thus should be dismissed
 If 12(b)(6) granted:
1. Final adjudicationcan’t refile/amend
2. Otherwise allowed to amend to cure defects
4. Rule 9
 Issues like fraud and special damages must be argued with
particularity (how, when, why, where) to meet threshold for
plausibility = higher burden
B. Answer (D) – Rule 12
1. D may respond by motion/answer—must respond within 21 days or risk
default judgment
2. What can he D do?
 Motions
1. 12(b) MotionsMotions to Dismiss
i. (b)(1)MTD for lack of SMJ
ii. (b)(2)MTD for lack of PJ
iii. (b)(3)MTD for improper venue
iv. (b)(4)MTD for improper service
v. (b)(2)MTD for improper service of process
vi. (b)(6)MTD for failure to state a claim
vii. (b)(7)MTD for failure to join a required party
2. Other motions
i. 12(e)motion for more definite statement
1. Claim lacks succinct quality on allegation
—does not dismiss claim but asks for
clarification
ii. 12(f)motion to strike
1. Also does not kill claim but strikes
frivolous allegations/allegations made
not grounded in law or evidence
** Must make all waivable MTD’s (12b 2-5) at the same time when one is first raised in either
first MTD or in answer or you waive them **
 Response to Complaint
1. Admissions – make concessions
2. Deny
i. Can generally or specifically deny allegations
 ii. Negative Pregnant
1. Denial that in part concedes admissions
3. Plead insufficient in formation
i. Cant use if you have actual/constructive
knowledge or risk sanctioning under Rule 11
3. FRCP allows for a combination of these options
4. FAILURE TO DENY = ADMISSION
 On any allegation except damages
5. Rule 8 – Affirmative Defenses
 Must be plead in answer or waived
C. Amending – Rule 15
1. Both P and D have the power to amend
2. Amending Procedure?
 Parties can amend freely prior to opposing party’s response
1. Then they can amend conditioned on the consent of the
opposing party(s)
2. Or the judge can grant the amendment if it does not
unduly prejudice the opposing party(s)
 Can occur pre/post trialso long as no undue prejudice occurs
 If a party argues issue not in pleading to jury and opposing party
doesn’t object…
1. Can be added to pleadingRule 15(b)
3. Relating Back – adding things to original pleading to dodge Statute of
Limitations issues (claims and/or parties)
 How can you relate back? Factors:
1. Whether the state allows or
2. Claim or defense arises out of the same T/O
 If you want to add a party? (Specifically)
1. Serve within 120 days and satisfy T/O test
2. Why?
i. Not to prejudice party – i.e. give them notice
ii. This party know or should have known this action
would happen (Cruise example)
D. Rule 11 – Pleadings and Motions requirements:
1. Attorney must sign documents
2. Attorney expectations:
 Not for improper purpose (harass, waste time, etc.)
 Allegations must be ground in law – non-frivolous
 Allegations must be ground in evidence
 Denials/Lack of Sufficient Evidence must valid and not be made
improperly
 Can get sanctioned if expectations violated
3. Motion to Sanction must be sent to offender so they can alter/drop (Safe
Harbor)
4. Courts can raise sanctions sua sponte
5. Sanctions monetary or non-monetary to deter attorney malpractice

3. Joinder – What’s the scope of litigation?

A. Joinder of Parties
1. Permissive Joinder of Parties  Rule 20
 Parties may join if:
1. Assert any right, jointly, severally, or in the alternative
2. Same T/O or series of T/O
3. At least one common question of law or fact to the case
  May join but do not have to
 Same element test for whether you are joining Ps or Ds
2. Compulsory Joinder of Parties Rule 19—raised by D
 Is there an absentee that is actually necessary to the case?
 Bringing in this party alters P’s structuring
1. P could have brought this party in but did not
 Tests in Rule 19:
1. Without A, court cannot accord complete relief among the
parties  efficiency test
2. If A were absent, A’s interest may be harmed if not joined
3. A’s interest may subject D to multiple or inconsistent
obligations
i. Apply all tests, although only one is sufficient
to meet Rule 19 requirement
 Is the Joinder Feasible?
1. Must have PJ of A
2. AND bringing in A wont disrupt SMJ
3. If not feasible 19(b) dictates
i. Ct. must either proceed without A or dismiss
ii. Neither are good options
 If the ct. dismisses the P must have an adequate remedy available
elsewhere
1. If you would rather dismiss with 12(b)(7) than proceed
without A
i. A = Indispensible Party
3. Intervention  Rule 24 – Raised by A
 The absentee brings their self into the case
1. Can chose to be P or D when the A intervenes
2. No time requirement to intervene, just must do so timely
 Intervention by Right
1. Right to intervene if the A’s interest is harmed by not
joining
i. Same as test two under compulsory joinder!
2. Unless someone already in suit is already representing A’s
interests
 Permissive Intervention
1. A must show claim or defense and current case has at least
one common question of law of fact
2. Court uses discretion  doesn’t have to allow
3. SMJ must be proper  test Supp. Jdx if not
4. Impleader  Rule 14 (3rd party practice)
 Defending party brings in A party (3rd Party Defendant = TPD) to
the suit who “may be liable” to defending party attempting to join A
 Party believes TPD owes them indemnity or contribution
1. Indemnity
i. If I’m liable to P, you (TPD) are liable to me
2. Contribution
i. Lessening liability – Joint Tortfeasors
3. Notion of contingent liability
 Burden on party using Rule 14 to prove TPD could be liable
 Assess PJ since they’re getting dragged in –and as always evaluate
SMJ/Supp. Jdx
5. Interpleader  Rule 22/§1335
  Stakeholder holds property (stake) that is subject to inconsistent
claims by claimants
1. Brings them into single action so they can fight over it
i. Used to join these parties so not subject to
inconsistent judgments by cts
 Rule 22 Interpleader
1. Protects stakeholder against primarily multiple claims of
liability from claimants
2. Cannot disrupt PJ, SMJ, Venue
3. Elements:
i. AIC = $75,000
ii. No nationwide service method = Rule 4
1. 14th Amendment Check
iii. Complete diversity from P but not from each other
as claimants
iv. 1391 venue requirement
v. Injunctions where necessary in aid of its
jurisdiction or to effectuate judgment
4. P may execute even though:
i. Claims by claimants lack a common origin or
adverse/independent rather than identical
ii. P denies liability in whole or part
5. D may seek interpleader through XC or CC
6. Supplements rule 20, not limits it
 Stautory Interpleader  §1335 – Cts have SMJ
1. 2+ Claimants
2. Deals with same issue in Rule 22
3. Elements:
i. AIC = $500
ii. Minimal diversity of claimants
iii. Federal Long-Arm to deal with PJ issues § 2361
1. 5th Amendment Check
iv. Deals with Venue issue
1. Venue proper where at least one claimant
resides -- § 1392
v. Injunctions to limit the multiple
litigation/inconsistent verdict issue
 Deposit made to ct. usually equal to biggest claim against the stake
 If interpleader action granted, the stakeholder is dismissed
 State law dictates substantive legal issues
B. Joinder of Claims
1. Rule 18
 P can join any claim he has against D
1. Don’t have to be related
 Though joining of claims by P is okay procedurally, you must test
SMJ  Supp. Jdx
 Defending party can join all CC’s, XC’s and Rule 14 Claims together
in to case
2. Compulsory Counter Claim  13(a)
 Claim against opposing party
1. Someone who has sued you
2. Must be filed in the answer
 Same Transaction or Occurrence or Series of Occurrences (T/O)
1. Tests for same T/O
 i. Are factual/legal claims raised by claim/CC really
the same?
ii. Would a later suit be barred by res judicata?
iii. Does same evidence support C/CC?
iv. Are C/CC largely related?
 You must assert claim in pending case, or else it is waived
3. Permissive Counterclaim  13(b)
 Does not arise out of same T/O
1. “May” assert on opposing party
 Test SMJ!!!
4. Cross claim  13(g) (XC)
 Brought against a co-party
 Must arise from same T/O of underlying case
1. Apply T/O test
 Never compulsory  may assert
 If no SMJ, apply Supp. Jdx

4. Pretrial Adjudication—Is the claim actionable?

A. 12(b)(6)—Motion to Dismiss for failure to state a claim
1. Court looks only at complaint, ignores evidence
 Refer to rules of a complaint
 Is there a plausible claim stated?
2. Claim not passing 12(b)(6) test means it is unfit for litigation—the law does
not recognize this claim is entitled to any relief
B. Summary Judgment—Rule 56  Cts are hesitant at times to grant = honor 7th
amendment
1. Basic Function
 Movant makes a motion to dismiss the case on SJ pursuant test:
1. There is no genuine dispute of material fact AND
2. Movant is entitled to judgment as a matter of law
i. This is generally met if the former part of the test
is satisfied
 Distinguished from 12(b)(6) because evidence is examined, not
content of the complaint
 Evidence = affidavits, declarations, depositions, answers to
interrogatories, et cetera
1. Evidence is proffered to the court
 Note that court is never compelled to grant SJ
2. Procedure to SJ
 Motion must be filed within 30 days after discovery
 Ways Movant may prove up sufficiency of SJ
1. Claiming that non-movant has failed to properly support
or address a fact
i. You say it is x, but it is actually y.
ii. This must be supported by credible, admissible
evidence.
2. Objection that a fact is not supported by admissible
evidencefact specific
3. Materials by non-movant not cited
4. Affidavits and Declarations (generally)
i. Used to support SJ or non-movant’s evidence
attacked by movant to kill claim and then move to
SJ
 If facts are unavailable to the non-movant?
 1. Non-movant my proffer specific reason why the
supporting evidence in question is unavailable
i. Ct. may either grant/deny/defer SJ OR
ii. Allow the non-movant time to produce said
evidence
 Judgment Independent of the motion
1. Ct. raises SJ sua sponteRARE
 Ct. may fail to grant all requested relief based on the evidence if the
π is granted SJ
1. I.E. elements of demand for relief on separate claims are
not proved up
 Rule 11 applies to all documents filed in court made in Bad Faith.
3. Principle Issues in SJ
 Does a factual dispute actually exist?
1. Note that SJ shouldn’t be granted if the credibility of the
non-movant needs to be testedtrial issue
2. Examination of historical facts  what happened
 Whether the dispute is material to the outcome of the case?  is
the issue in dispute outcome determinative?
1. Jury issue vs. things you cant prove as a party
2. Turns on the substantive law that governs the case
3. Questions heart of the dispute rather than just the
narrative
 Whether the dispute is genuine?
1. Could a R jury pick π or ∆ given the facts?
2. Complex regulatory matters aren’t the place for SJ
3. Look at the proffered evidence
i. Are they actually in conflict on the same issue?
4. The Burden of Proof
 What is a movant’s Burden of Proof?
1. If movant has the BoP at trial (π), must produce credible
evidence that would prove the case
2. If movant does not have the BoP at trial (∆):
i. This movant has the Burden of Production and
the Burden of Persuasion
ii. Satisfies the Burden of Production by:
1. Only must negate an essential element,
not the entire case in its entirety
2. Or that the non-movants evidence is
insufficient to establish their claim
3. A party has the burden to prove movant’s evidence can be
contested with their own evidence  Can’t be silent
i. Proffered evidence must specific to the area of
clash rather than a non-unique response
1. High risk of SJ being granted
4. Non-movant must do more than prove metaphysical doubt
of the movant’s argument
5. Movant has the initial burden of proof showing the SJ
standard is met
i. Not the burden of proof of trial  be keen to
distinguish
 Crucial link between the BoP and SJ
 Affirmative Proof v. Pointing to the gap in Non-Movant’s
argument
1. Affirmative Evidence is independently produced and
proffered by the party
2. Pointing to the gap can be sufficient to have SJ granted if
the Non-Movant fails to address it