Civil Procedure Outline
I. Jurisdiction & Venue
Subject Matter Jurisdiction
28 U.S.C. §1331 — Federal question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
The Well Pleaded Complaint Rule: (where to look)
Federal question jurisdiction requires the plaintiff’s initial complaint to show that their right to relief depends on federal law; anticipated defenses or counterclaims based on federal law do not count.
• Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149 (1908)
Justice Holmes’ Creation Test: (what to look for)
A suit arises under the law that creates the cause of action.
The Grable Exception:
If a federal question is so important to a state law case, then the court may grant an exception to the well-pleaded complaint rule.
• Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005)
Removal
Any civil action brought in state court that district courts also have original jurisdiction over can be removed by the defendant to the district court in the place the action is pending.
If it wouldn’t create federal question jurisdiction under Mottley, it won’t create removal jurisdiction under §1441(a).
• Avitts v. Amoco Production Co., 840 F. Supp. 1116 (S.D. Tex. 1994)
28 U.S.C. §1332 — Diversity of Citizenship; amount in controversy; costs
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
Amount in Controversy Requirement:
The amount in controversy in the case must exceed $75,000.
Complete Diversity Rule:
To be granted diversity jurisdiction in federal court, there must be complete diversity between all plaintiffs and all defendants in the case.
Determining Citizenship of the Parties
Individuals
Domicile Test: If an individual moves to a state with the intent to remain there indefinitely, they have established a new domicile that supersedes their previous domicile in another state.
• Timing Rule: Citizenship is determined by the domicile held by the plaintiff at the time they file their suit in federal court.
• Alienage Rule: Marriage does not automatically confer or remove citizenship from the parties.
Corporations
Corporate Dual Citizenship Rule: A corporation is a citizen of every State and foreign state in which it’s incorporated and has its principal place of business.
Nerve Center Test: A corporation’s “principal place of business” is the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.
• Hertz Corp. v. Friend, 559 U.S. 77 (2010)
Other Business Entities (Partnerships, LLCs, etc.): Unincorporated enterprises are analogized to partnerships, which take the citizenship of every general and limited partner when considering whether diversity jurisdiction applies.
Removal
28 U.S.C. §1441(b) — Removal
Home State Defendant Rule: The defendant may initiate removal based on diversity of citizenship unless they are citizen of the state in which the claim is brought.
28 U.S.C. §1367 - Supplemental jurisdiction
(a) “[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”
Supplemental Jurisdiction Test:
If a federal claim is substantive, and state and federal claims derive from a common nucleus of operative fact, then the state claims can be heard alongside the federal claims in federal court.
Gibbs Discretionary Factors:
[1] The federal claim drops out early.
[2] State issues predominate the case.
[3] The state law issues are novel or complex.
[4] Trying the state and federal law claims together is likely to create jury confusion.
Amended Complaint Rule:
When a plaintiff amends their complaint to remove the federal law claims that enabled removal to federal court, leaving only state law claims behind, the federal court loses supplemental jurisdiction over the state claims, and the case must be remanded to state court.
• Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. _ (2025)
Personal Jurisdiction
Origins: Amendment XIV, §1 — Due Process Clause
(§1) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Historical Personal Jurisdiction
In Rem (Property) Jurisdiction:
A state court has jurisdiction when there is in state property, proper attachment of the property, and notice to the defendant by publication or better.
In Personam (Personal) Jurisdiction:
A state court has jurisdiction when the defendant: (a) is present in the state they’re being sued in and (b) receives personal notice of service or voluntarily consents to appear.
Modern Personal Jurisdiction
Minimum Contacts Test
Due process requires that a defendant have minimum contacts with the forum state such that maintaining the suit does not offend traditional notions of fair play and substantial justice.
[1] General Personal Jurisdiction — “home court for far flung actions”
General Jurisdiction may apply even when the events that gave rise to the case took place out of state, as long as the defendant has continuous and so substantial contacts such that they are essentially at home in the venue in which the case is being brought; generally established by domicile.
[2] Specific Personal Jurisdiction — “local acts, local courts”
Contact - “Purposefully Avail”
The defendant’s contacts in the forum state must make it more than just merely foreseeable that they could be subject to suit there; they must purposefully avail themselves of the privilege of conducting activities within the forum State such that they have clear notice that they could be subject to suit there.
• World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)
Connection - “Arises Out Of or Relates To”
The defendant’s contacts in the forum state may have either a causal connection (“arise out of”) or non-causal connection (“relates to”) to the plaintiff’s claims.
• Ford Motor Co. v. Montana’s Eighth Judicial District Court, et al., 592 U.S. 351 (2021)
Notice & Service of Process
Standard: Notice of judicial proceedings must be reasonably calculated to reach those who are known to be affected by such proceedings.
Hierarchy of Notice
[1] Personal Service
[2] Substituted Service
[3] Certified Mail
[4] Regular Mail
[5] Publication or Public Posting
Venue
General Rule
28 U.S.C. §1391(b) — Venue in General
[1] Domicile
A defendant resides in the state, and all defendants are residents of that State.
[2] Fact-Based
A substantial part of the events or omissions giving rise to the claim occurred in the venue, or a substantial part of property that is the subject of the action is situated there.
[3] Personal Jurisdiction (Last-Resort Fallback)
If there is no district anywhere, either in or out-of-state, where [1] or [2] are met, then the court will ask where there is personal jurisdiction over any defendant?
Defective Venue: Transfer or Dismissal?
28 U.S.C. §1404 — Change of venue
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
• The Court will ask:
[1] Whether the case “might have been brought” in the other venue.
[2] Whether transferring the case to that venue would promote the convenience of the parties and witnesses as well as the interests of justice.
28 U.S.C. §1406 — Cure or waiver of defects
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interests of justice, transfer such case to any district or division in which it could have been brought
General Rule: in practice, transfers are preferred over dismissal. Judges cannot initiate transfers between two different court systems; only defendants can exercise their right to remove a case to federal court.
Waiver: A defendant waives the right to plead §1406 if they remove their case to federal court.
Forum Non Conveniens — Common Law Rule
Forum Non Conveniens: dismissal of a case may be appropriate if holding a trial in the plaintiff’s chosen forum would impose a heavy burden on the defendant or the court, and the plaintiff cannot provide specific reasons of convenience to support their choice.
• Change of Law: the possibility of an unfavorable change in the applicable law should not be given conclusive or substantial weight in the forum non conveniens analysis.
• Foreign Plaintiffs: a plaintiff’s choice of forum is entitled to less deference if they are foreign to the jurisdiction in which they file the case.
II. Litigation in Federal Courts
Pleadings & Motions
Pleadings Allowed
FRCP 7(a): Pleadings Allowed
[1] Plaintiff’s Complaint
[2] Defendant’s Answer
Other Counter/Crossclaims
Plaintiff’s Complaint
FRCP 8(a): Plaintiff’s Complaint
• The plaintiff’s complaint must include:
[1] Jurisdiction
[2] Claim for Relief
[3] Demand for Relief
Twiqbal Rule:
• In response to a 12(b)(6) motion, the court will ask if the plaintiff’s complaint:
[1] avoids conclusory statements
[2] states plausible claims
Defendant’s Answer
FRCP 8(b): Defendant’s Answer
• The defendant’s answer must:
[1] state defenses to each claim in short and plain terms
[2] admit (affirmative defense) or deny the allegations in the complaint.
• FRCP 8(c): the defendant’s right to raise an affirmative defense is waived if not stated in their answer.
FRCP 12: Motion Practice
(b): Defendant’s options for dismissal before filing an answer.
[1] Subject Matter Jurisdiction
[2] Personal Jurisdiction
[3] Venue
[4] Process (technical issues)
[5] Service
[6] Failure to State a Claim
[7] Failure to Join a Party (FRCP 19)
(c-f): Defendant’s other options for dismissal early in the case.
[c] Motion for Judgment on Pleadings (same as 12(b)(6), but after filing an answer)
[d] Motion to Dismiss (with evidence before discovery)
[e] Motion for More Definite Statement
[f] Motion to Strike
Counterclaims and Crossclaims
FRCP 13: Counterclaims and Crossclaims
[a] Compulsory Counterclaim:
• Pleadings must state any counterclaims arising from the same transaction as the original claim. Allows supplemental jurisdiction unless it destroys diversity.
[b] Permissive Counterclaim:
• Pleadings may also state any non-compulsory counterclaim not arising from the same transaction, but supplemental jurisdiction won’t apply.
[c] Crossclaim Against a Coparty:
• A crossclaim against a coparty is only permitted if it arises out of the same transaction as the (1) original claim or (2) counterclaim.
[d] Allows non-parties to be added.
Third Party Practice
FRCP 14(a): Impleader
• The Defendant (as a third party Plaintiff) can implead a nonparty liable to it for the claim they’re facing, but they must obtain the court’s leave if filing more than 14 days after their answer.
Amending Pleadings
FRCP 15(a): Amending Pleadings
[1] Amendments as a Matter of Course: available within 21 days of service or the Defendant’s answer
[2] Other Amendments: available with consent of the court or the other party.
Joinder
Joinder of Claims
FRCP 18(a): Joinder of Claims
• The plaintiff may join as many independent or alternative claims it has against a party.
FRCP 8(d)(3): General Pleading Rule
• A party may join as many separate claims or defenses it has, regardless of their consistency.
Joinder of Parties
FRCP 20(a): Permissive Joinder of Parties
• A plaintiff or defendant may be joined as parties in the same case if they share:
[1] the same transaction, and
[2] any question of law or fact.
• Note: hard to prove one is met without the other. Once qualified under 20(a), plaintiff may raise other claims allowed under 18(a).
Misjoinder
FRCP 21: Misjoinder
• The court has broad discretion to sever any claim, but it is not grounds for dismissal.
FRCP 42(b): Separate Trials
• The court may order a separate trial for convenience (default: grant joinder, since most cases don’t reach trial).
Class Actions
28 U.S.C. §1332(d): Class Actions
• District courts have jurisdiction over class actions if:
[1] any member of the plaintiff class is a citizen of a different state than any defendant.
[2] the amount in controversy exceeds $5M.
• If amount is less, it may still qualify under §1332(a).
28 U.S.C. §1453: Removal
(b) Removal: Class actions may be removed regardless of citizenship, even if all defendants haven’t consented
(c) Review: Appellate courts can accept appeals from a district court’s order denying a motion to remand to state court.
FRCP 23(a): Prerequisites
• Class representation can be granted if:
[1] the class is so numerous that joinder of all is impracticable.
[2] the questions of law or fact are common to the class.
[3] the claims or defenses are typical of the whole class.
[4] the representatives will fairly and adequately protect the class.
Discovery
Discovery Rules
FRCP 26: Discovery
(a): Mandatory Discovery
[1] Supportive witnesses
[2] Supportive documents
[3] Documents for damages
(b)(1): Scope and Limits
• Almost anything is discoverable so long as it is not disproportional or irrelevant.
• Proportionality: (BIRRIA)
[1] Burden > Benefit
[2] Importance of Issues
[3] Relative Access to Info.
[4] Resources
[5] Importance of Discovery in Resolving Issues
[5] Amount in Controversy
Work Product Doctrine
FRCP 26(b)(3)(A): Work Product Doctrine
• Things prepared in anticipation of litigation or for trial are not discoverable.
• Exception: documents that were otherwise discoverable, or the party shows they couldn’t obtain the information without undue hardship.
- Hickman v. Taylor (1947)
Electronically Stored Information (ESI)
FRCP 26(b)(2)(B): Limitations on ESI
• Parties are required to produce ESI unless it’s not reasonably accessible due to undue burden or cost.
- Exception: the request is:
[1] Good Cause
[2] Not duplicative
[3] No prior opportunity to request
[4] Within the scope
FRCP 37(e): Failure to Preserve ESI
• Remedies: the court may:
[1] cure the prejudice, or
[2] if the intent was to deprive another party:
[a] presume the information unfavorable,
[b] instruct the jury to presume it was unfavorable, or
[c] dismiss the case or order default judgment.
Other Methods of Discovery
Summary Judgment
FRCP 56: Summary Judgment
• A motion for Summary Judgment will be granted if:
(a): the movant shows:
[1] there’s no genuine dispute of material fact, and
[2] they’re entitled to judgment as a matter of law.
(b): the motion is filed at any time until 30 days after the close of all discovery.
Trial
Right to Jury
7th Amendment: Civil Jury Trial Right
• Protects the right to jury in common law actions exceeding $20.
• Re-examination Clause: No fact tried by a jury can be reexamined by any court except as allowed by common law.
• Mixed Claims of Common Law and Equity: can be heard together before a jury. The court should hear the common law issues first, then move to the “after effects” involved with the equitable claims; don’t let judge get in front of common law claims.
FRCP 38(b): Demand
Written demand for a jury must be filed by the party within 14 days of the last pleading on the issue.
Jury Instructions
FRCP 51(b): Requirements
Jury instructions must be accurate and not confusing or misleading. They must also:
[1] inform the parties of the proposed instructions.
[2] provide an opportunity to object.
[3] instruct the jury at any time before discharge.
Jury Verdicts
FRCP 49: Types of Verdicts
[1] General Verdict
Who won? How much?
[2] Special Verdict
May require special written finding on each issue of fact.
[3] General Verdict with Written Questions
Results in:
• [1] Consistent Verdict and Answers: Judgment Issued
• [2] Inconsistent Verdict and Answers: Answers Control; Deliberate (possibly order new trial)
• [3] Inconsistent Verdict and Contradictory Answers: Deliberate Answers, (possibly order new trial)
FRCP 50: Judgment as a Matter of Law
[1] Directed Verdict (before jury verdict)
• Standard of Review: Summary Judgment
[2] JNOV (after jury verdict)
• Standard of Review: Summary Judgment after 50(a)
Judgment
Relief from Judgment
FRCP 59: New Trial
• A new trial may be granted if:
[1] The instructions were confusing to the jury or provided a disproportionate remedy.
[2] Jury deliberations were tainted.
[3] New evidence emerges within 28 days of dismissal.
FRCP 60: Relief from Judgment
• Relief from judgment may be allowed if:
[1] New evidence emerges within 28 days of jury dismissal.
[2] Fraud occurred
Appeals
28 U.S.C. §1291: The Finality Rule
• Courts of Appeal have automatic Subject Matter Jurisdiction over final orders from District Courts.
FRCP 58: Final Order Requirement
• Without a final order, appellate courts approach appeals with a high level of skepticism.
Exceptions
[1] Collateral Rule Doctrine:
• Issues may be reviewed before a final order if they’re:
• Separate: issue is separate from merits of the original claim.
• Final: issue can be fully resolved on appeal.
• Urgent: issue involves irreparable harm.
• Important: discretionary judgment of the court.
[2] 28 U.S.C. §1651(a): Mandamus
• Writ-based review of non-final orders. A plaintiff must show:
[1] Special risk of irreparable harm; “no other adequate means of relief”
[2] Clear entitlement to relief (most common: jurisdiction challenges)
[3] FRCP 54(b): Multiple Claims or Parties
• Allows an appeal from a final order entered on an issue in a case, even if the case as a whole is still ongoing.
• “Spot Golden Ticket”
[4] 28 U.S.C. §1292: Specifically Authorized Interlocutory Appeals
• Allows injunctions, receivers, admiralty, and other accepted issues to be appealed before a case is closed.