Lessons by Subject Outline - Civil Procedure
This Subject Outline allows you to search for terms of art that correspond to topics you are studying to find related CALI Lessons. Find the topic that you are teaching each class period and view the lessons that we have on that topic. Then put a link to those lessons in your syllabus.
The Civil Procedure Index lists all CALI lessons covering Civil Procedure.
Subject Outline
Introduction/Overview
Historical origins
Sources of procedure - statutes
Writs
Defined
Importance
Relation to procedure
Equity
Defined
Procedures used in equity courts
Merger of law and equity
Result of merging law and equity in the US
Right to jury trial
Jurisdiction over the Parties
Sources of jurisdiction
Today’s ideas toward jurisdiction
International Shoe v. Washington
Minimum contacts doctrine
Continuous and systematic contact
Constitutional limits
Affiliation requirement
Due process
Reasonable notice
Opportunity to be heard
Jurisdiction over individuals
Jurisdiction over corporations
Jurisdiction over things/property
Quasi in rem jurisdiction
In rem jurisdiction
Type of property interest
Attachment
Property situs
Results of judgment
Notice
Federal jurisdiction over the parties
Class Actions
Defenses to claims of jurisdiction
Rule 12
Timing
States and special appearances
Federal courts
Limited appearances
Venue
Venue (CIV25) Purpose
Determination
Local actions
Federal courts: 28 USC 1391
Remedies for improper venue
Changing venue for convenience
Multi-district litigation
Long arm statutes
Pre and post International Shoe
Typical limits states impose
Concept of a single contact
Torts
Products liability
Contracts
Transfer
Jurisdiction by necessity
Convenience of forum
Service
Subject Matter Jurisdiction
Selecting the proper court
Article III in general
Federal jurisdiction generally
Article III, Sec. 2
Relation of the 11th Amendment
Federal jurisdiction is narrowly defined
Concurrent jurisdiction
Exclusive jurisdiction
Issues of diversity
Diversity Jurisdiction (CIV32) 28 USC sec. 1332(a)
Criticism of the doctrine
Complete diversity required
Exception: statutory interpleader cases (28 USC 1335)
Distinguished from Rule 22
Proper parties
Determining citizenship
Natural persons including aliens
Corporations
Unincorporated associations
Time for determining citizenship
28 USC sec. 1359
Creating and destroying diversity
Federal question
Article III limitations
Underlying policies
28 USC sec. 1331 - arises under
Problems and criticisms of arising under rule
Effected by pleadings
Federal laws defined
United States as a party
Amount in controversy
Reason
Method to determine
Money damages sought
Non-monetary damages sought
Aggregating claims
Effect of counterclaims
Horton v. Liberty Mutual Ins. Co.
Federal question
Diversity
Supplemental subject matter jurisdiction
Basics of Supplemental Jurisdiction through the Ice-Cream Method (CIV28)
Relation to Article III
28 USC sec. 1367
United Mine Workers v. Gibbs Defined - origins
Benefits
Criticisms
Discretionary nature
Today expanded
Ancillary jurisdiction
Pendent jurisdiction
Pendent party jurisdiction
Relation between Rule 20, 23 and Rules 19, 24
Rules 13 and 18
Joinder of parties
Venue
Removal to the federal courts
Removal and Remand: The Basics (CIV27) Removal and Remand: Litigation Strategy (CIV45) 28 USC sec. 1441 rather than Constitutional
Specialized removal provisions in particular circumstances
Venue
Relation to amount in controversy
Relation to state court’s jurisdiction
Ability to remove all of action because of a part
Applicability of remand when removal denied
Procedure for removal
Requirements for removal
Purpose for removal
Power to punish disobedience
Determining the Applicable Law
Basics/type of problem
Controlling law in federal courts
28 USC sec.1652
Selecting the proper state law
Conflicts laws
Klaxon
Transferred cases
Determining precedent for state law
Enforcement of federal law by state courts
Federal common law
Swift v. Tyson Problems with Swift
Common law distinguished from common law in Swift
Application of state law as federal common law
When to apply federal common law
Subject matter jurisdiction
Personal jurisdiction in federal question cases
Erie doctrine
Post Erie and its problems
Outcome determinative test
Balancing approach
Relation to Federal Rules
Equitable remedies
Arguments for and against Erie
Pleading
At common law
Purpose
Different from modern practices
Modern pleadings
Purpose
General requirements of pleadings
Special pleading rules
Federal Code of Civil Procedure
Modern federal complaint
Motions against complaint
Drafting a Complaint (CIV01) Demurrer vs. motion to dismiss
Substantive insufficiency
Challenging technical aspects of the pleadings
Please in abatement
Failure to plead defects
Result and options from losing a motion
Counterclaims, third-party claims, cross-claims
Answer
Generally
Admissions
Denials
Affirmative defenses
Reply
When required
Limitations to the reply
FRCP 7(a), 8(d)
Time for various pleadings (timeline and time permitted)
Amendment to pleadings
Types of pleading defects
Result of amending pleadings
Supplemental pleadings
Variance of proof
Discovery and Pretrial Conference
Discovery
Woburn: A Game of Discovery (CIV20) Historically
Purpose
Scope
Privileged matter
Relevant and irrelevant information
FRCP26(a)
Limitations to discovery
Work product
Expert opinions
FRCP 26
Timing of discovery
Processes
Methods
Limitations to methods
Problems with subpoenas
Need to update discovery
FRCP 26(e)
FRCP 35 - examinations
Inspection of documents - FRCP 34
Request for admission
Interrogatories
Depositions
Orders and Sanctions
FCRP 37
Failure to comply with court order
Failure to appear at dep or to answer interrogatories
False denial in response to a request to admit
Failure to perform automatic disclosures
Motions
To require a response
To have matters deemed admitted
Use of results at Trial
FRCP 32
Depositions
Used by opponents
Contradict testimony
Unavailability
Inadmissible portions of a deposition
Answers to interrogatories
Admissions
Pretrial Conference
Defined
Purpose of a pretrial conference
FRCP 16
Settlement
Mandatory vs. discretionary conference – FRCP 16(b)
Procedural aspects
Trial Procedure
Trial techniques
Jury trial
Availability of a jury trial
Procedures
Jury selection
Jury instructions
Jury verdicts
General verdict
Special verdict
Special verdict with interrogatories
Jury misconduct
Trials without jury
Burden of proof on parties
Presumptions
Preponderance of the evidence
Constitutional right to jury trial
Judgment as a matter of law - FRCP 50
New trial
Grounds
Court’s discretion
Review of grant or denial of new trial
Remedies - orders and judgments
Provisional judgments
Attachment
Preliminary injunctions
Receivership
Arrest
Pendency of litigation
Collecting judgments
Contempt
Civil vs. criminal contempt
Appealability
Adjudication without trial
When does this occur
Summary judgment
Default judgment
Dismissal without prejudice
Dismissal with prejudice
Settlement
Multi-Party and Multi-Claim Jurisdiction
Joinder
A Review of Joinder Concepts (CIV11) Joinder of Claims and Parties (CIV18) Joinder of claims (FRCP 18, 13(a), (b) and 14)
Historically
Today’s practice
Distinguished from joinder of parties
Federal court concerns
Subject matter jurisdiction
Personal jurisdiction
Venue
Joinder of parties
Real party in interest
Common law
Equity
Today’s practice
Arguments for and against
Assignments
Subrogation
Failure to join real party in interest
Burden of proving
Capacity to sue or be sued
Distinguished from real party in interest
Burden of proving
FRCP 17
Joinder problems in federal courts
Controlling law
Jurisdiction
Venue
Proper party to joinder
Common law
Equity
Today’s practice
Tests used by courts:
Same transaction or occurrence
Common question of law or fact
FRCP 20
Common rule used by states
Joinder is compelled for some parties
When will a court compel joinder
Only way to get relief
Party has an interest in the subject matter
FRCP 20 Compulsory joinder
Competing interests
Permissive vs. necessary parties
Compulsory joinder test
Impair non-party’s interest
Threat of multiple liability
Joinder feasibility
Procedure
Joinder of different parties
Joinder of non-party as defendant
Joinder of involuntary plaintiff
Indispensable party
Past view
Today’s practice
FRCP 19
Determining indispensability
Possibility of prejudice to either party
Shaping relief
Possibility for adequate relief
Effect on plaintiff of dismissal
Defect in joinder
Consolidation of claims
FRCP 42(a)
Appealability of order denying consolidation
Severance of claims
When permitted
28 USC sec. 1406
Appealability of order denying severance
Separate trials
FRCP 42(a)
Jury trials
Trials for liability vs. damages
Appealability of order denying separate trials
Class actions
Class Action Basics (CIV43) Class actions
Defined
Historically
FRCP 23
Requirements
Identifiable class
Class rep must be a member of the class
Class size
Common questions of law and fact must exist
Claims or defenses of the class rep is typical of the class members
Does the class rep protect interest of all class members
FRCP 23(b)
Class action must be maintainable
Notice to absent class members
Class action judgment
Federal concerns
Subject matter jurisdiction
Personal jurisdiction
Venue
State court concerns
Intervention
Joinder of Claims and Parties (CIV18) Intervention
Requirements
Interest
Impairment
Adequacy of representation
Permissive intervention
Timeliness of a motion to intervene
Procedural aspects
Federal court concerns
Subject matter jurisdiction
Personal jurisdiction
Venue
Motion to intervene - appealability of the order
Interpleader
An Interpleader Primer (CIV21) Interpleader actions
Defined
Historically
Today’s practice
FRCPP 22
28 USC secs.1335, 1297, 2361
Who can interplead
Requirements for interpleader remedy
Prerequisites
Determination of rights
Federal court concerns
Jurisdiction
Amount in controversy
Choice of law
Third party practice
Joinder of Claims and Parties (CIV18) Third party practice
Historically
When are third party claims permitted
Procedural aspects
Rights of the third-party defendant
Plaintiff’s rights against the third party defendant
Federal court concerns
Cross-claims
Joinder of Claims and Parties (CIV18) Cross-Claims
Defined
Requirements
Asserted against a co-party
Seek affirmative relief
A claim must already have been asserted against them
Same transaction or occurrence
Impact on statutes of limitations
Federal court concerns
State court practice
Joinder
Counterclaim
Joinder of Claims and Parties (CIV18) Counterclaim
Historically
Opposing party concept
Permissive vs. compulsory counterclaims
Result of a failure to assert a compulsory counterclaim
Procedural aspects
Joinder
Appellate Review
28 USC sec. 1291
Finality vs. interlocutory rulings
Finality
Defined
Exceptions to the rule
Timeliness
Appealability
Organization of the appellate system
Former Adjudication
Preclusion (CIV17) Defined
Underlying policy
Impact of former adjudication
Claim preclusion (a.k.a. res judicata)
Claim Preclusion (CIV40)
Underlying policy
Requirements
Cause of action
Final
On the merits
Same parties involved
Principles
Unascertainable damages
Merger or bar
Relation to counterclaim, cross-claim, or third party claim
Exceptions to application of the doctrine
Issue preclusion (a.k.a. collateral estoppel)
Issue Preclusion (CIV34)
Underlying policy
Compared to res judicata
Requirements
Same issue
Actually litigated
Necessarily determined
Exceptions to the application of the doctrine
Mutuality of the doctrine
Full Faith and Credit
When does it come into play
Constitutional basis
State to federal preclusion
Federal to state preclusion