Civil Procedure Outline


Download the outline in word format here.


o FRCP 8(a)(1) – statement of subject matter jurisdiction
• the complaint must contain a “short and plain statement of the grounds upon which the court’s jurisdiction depends.

o FRCP 8(a)(2) – statement of a claim (legally and factually sufficient)
• a complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief”…such a statement must simply “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests”
Ex of pleading negligence – “D drove her car while intoxicated and on the wrong side of the highway, causing it to strike the car in which P was riding.”

o FRCP 8(a)(3) – demand for judgment (award)
• requires the plaintiff to make her “demand for judgment for the relief the pleader seeks”

o Gillispie v. Goodyear Service Store (extremely vague complaint)
Rule- When a complain alleges defendant is indebted to plaintiff in a certain amount and such debt is due, but does not allege in what manner or for what cause defendant became indebted to plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action.

o Dioguardi v. Durning (man representing himself doesn’t know English very well.)
Rule – The federal rules of civil procedure only require that a complaint contain a short and plain statement of the claim showing a right to relief.

o Bell atlantic corp v Twombly 2007 (large telephone co. Anti trust case. Narrowed to anti-trust)
Rule- In order for a complaint to survive dismissal on the pleadings, the complaint must include enough facts to state a claim to relief that is plausible on it’s face. Forced more restrictive pleading standards

o Garcia v. Hilton Hotels International, Inc. (was slandered as procuring rooms (pimping) in the hotel for prostitution.)
Rule- A complaint viewed in its most favorable light should not be dismissed if the plaintiff at trial could make out a case entitling him to relief from the allegations of the complaint. A conditional privilege isn’t grounds for dismissal, while an absolute privilege is. When material allegations are insufficient, a motion for a more definite statement is proper.

Pleading Special Matters

FRCP Rule 9(b) & 9(g) (fraud, mistake, special damages)

o FRCP 9(b) – fraud and/or mistake
• ” in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity”

o FRCP 9(g) – special damages
• “when items of special damages are claimed, they shall be specifically stated.
Special damages are those that do not normally flow from an event.

o Denny v. Carey (bank fraud not rigorous only sufficient)
The Rule- the requirements of fed r civ p 9(b) is met when there is sufficient identification of the circumstances constituting the alleged fraud for the defendant to prepare an adequate answer to the allegations

o Tellabs inc v. makor issues and rights
The Rule- In deciding whether a securities fraud complaint alleges facts sufficient to establish a “strong inference” A plaintiff must show that fraud is a more likely explanation than any other more innocent explanation.

Pleading damages

o Default case – damages can’t exceed those in the complaint b/c that is what the defendant consented to by defaulting (FRCP 54.C)
o Contested Case – if the defendant contests the amount than the award is up for grabs. (FRCP 54.C)

o Ziervogel v. Royal packing co.(special damages – The injury victim was hurt when her car and the owner’s truck collided in an intersection. plaintiff blood psi)
The Rule- When items of special damage are claimed, they must be specifically pleaded

o Bail v. Cunninghame Brothers Inc. (Plaintiff, an employee of a subcontractor, was injured when a scaffold collapsed.)
The Rule- In federal courts, a claimant may be awarded damages in excess of those demanded in his pleadings FRCP. 54


• FRCP 8(b) – provides 3 responses
Admit allegations
Deny allegations
Say she lacks sufficient information on which to admit or deny (basically a denial)
• One can deny in part (must be very specific)
• One can deny in general
o FRCP 8(d) – allegations not denied are admitted.

• FRCP 12(a) – motion to answer claim

o FRCP 12.C – motion for judgment on the pleadings
• A party may move to get a judgment on the strength of the pleadings.

o FRCP 12(e) – motion for a more definite statement (must be used before answering)
• Permits the D to bring a motion for more definite statement, which address a complaint that is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.”

o FRCP 12(f) – motion to strike, challenging the substantive sufficiency
• Any party can use this rule. Must be used in 20 days after responsive pleading
• “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”.
o Consequences for not raising 12(b) defenses
• 12(g) and 12(h) – if 12(b)(1-3 & 5) are not raised in pre-answer, they will be considered waived and not usable thereafter.

o American Nurses Association v. Illinois(D argued they didn’t present a legal claim)
The Rule- A federal complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Denials FRCP 8

o Zielinski v philadelphia piers inc. (pier forklift accident. D didn’t deny involvement until too late)
• Rule – In the fed courts, a defendant who knowingly makes inaccurate statements may be estopped (equitable estoppel) from denying those inaccurate statements at the trial.

Affirmative Defenses

FRCP 8.C has nineteen affirmative defenses
o Unless allowed to amend to set forth the defense, these defenses must be pleaded in the answer.

• FRCP 12(b) – Motion to dismiss (pre-answer motion) (AFFIRMITIVE DEFENSES)
o D who moves to dismiss under this rule, need not answer the complaint until after the motion is decided (FRCP 12(a)(4))

o Valid defenses raising defects in Court issues
• 12(b)(1) – court lacks subject matter jurisdiction
• 12(b)(2) – court lacks personal jurisdiction over the D
• 12(b)(3) – court is not a proper venue

o Valid defenses raising defects in procedure
• 12(b)(5) – insufficiency of service of process
• 12(b)(7) – failure to join an indispensable party

o Motion to dismiss
• 12 (b)(6)- [a motion to dismiss for] failure to state a claim upon which relief can be granted
 Asserts that even if plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief.
 Does the compliant itself state a legally sufficient claim? The facts in the complaint are alleged true, thus, this is a legal queston.
 Conley v. gibson – 12(b)(6) should only be granted when ” it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”

o Ingraham v US (govt. malpractice suit seeking lowering of award to P)
• Rule – a statutory cap on damages (if claimed as an affirmative defense) IS an affirmative defense that is waived if not raised in the pleadings


o Both P and D have a right to amend
o 15(a) – P must amend before “responsive pleading” (D’s answer). A motion is not a pleading.
o 15(b) – D can amend within 20 days of serving their answer.
o Whenever a party amends, the opposing party must respond per FRCP 12

• Rule 15(a) identifies three types of pretrial amendments:
(1) those allowed “once as a matter of course”—often referred to as amendments “as of right”;
(2) those made with the written consent of the other parties (permissive); and
(3) those permitted by the court. (permissive)

• Rule 15(b) – Variance – rule addresses the topic of so-called “trial amendments.” It provides guidance for situations when a party advances at trial a claim or defense that was not included in any pleading.
• Used when a party seeks to introduce evidence of a claim or defense that she did not plead.
• Two scenarios can occur when using this rule
Opposing party agrees to allow the variance
The first two sentences apply in this scenario
Opposing party objects the variance
The last two sentences apply in this scenario.

• Rule 15.C – relation back (amendments after statute of limitations has run)
 15.C.A – relation back is permitted when “permitted by the law that provides the statute of limitations (will say so in the law itself)

 15.C.B- adding a new claim
• Relation back is permitted if the amended pleading “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading”

 15.C.C – adding a new defendant. three requirements. Basically one class of cases – one in which the plaintiff sued the wrong defendant originally, but the right defendant knew about the case and knew that, but for a mistake, she would have been named originally.
The claim arises out of the same conduct, transaction, or occurrence as that stated in the original complaint
Within 120 days after filing of the original complaint, the new defendant has received such notice of the suit that she will not be prejudiced in defending (15.c.3.b)
Within the same period, the new defendant “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought [against her] (15.c.3.b)

• Rule 15(d) authorizes “supplemental pleadings” by which a party may introduce events that occurred after the party’s original pleading was filed.

• Relation back doctrine – a plaintiff can usually amend her complaint after the statute of limitations period otherwise would have run on the claim as long as the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleading.
Additional defendant – does not allow additional defendants after the statute of limitations is up unless the new D is an entity related to the original defendant, plaintiff has a strong interst in obtaining relief, and D would not suffer prejudice (can sue diet coke for coke, but not pepsi)
Misnamed defendant – plaintiff should be allowed to fix the error.
Unnamed defendant – not allowed.

• Equitable tolling -The principle that lawsuits for certain types of torts are not barred by the

• statute of limitations unless the plaintiff has failed to use due care to discover the harm done.
To toll a statute of limitations is to do something to delay it from taking effect, to “stop the clock from running.”

o Beek v. Aquaslide n dive Corp.(slide not his, court let him amend so he wouldn’t be liable)
Rule- a motion to amend an answer Should be granted unless the opposing party can show prejudice.

o Moore v. moore case (Parent custody case, evidence implies info, allowed to amend)
o Mother moved to conform her pleadings to the evidence. She (mother) made 3 counterclaims: custody, maintenance, and child support. None of these were in the either parties pleadings.
o 15.b.2. is the consent implied or expressed conforming to evidence pleading.

o Worthington v. Wilson (john doe case physical abuse police)
o Rule – an amended complaint among certain persons listed as unknown in the original complaint Does not relate back to the time of the original complaints filing
relation back amendment under Fed. R. Civ. P. 15(c)

Provisions to deter frivolous pleadings

FRCP Rule 11

o FRCP 11© Discretionary –
o a court may impose sanctions.

o Limited to deterrence – the sanction is to be limited to that which is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.

o Ordinarily paid to the court
o all money will be paid to the court.

o FRCP 11©(1) separate motion
o A motion for sanctions must be made “seperately from other motions”
o 21 day safe harbor
The motion is not to be filed with the court until 21 days after it is served on the opposing party, and then only if the challenged paper is not withdrawn or corrected.

23.1(shareholder/truthful). The court has discretion to impose rule 11 sanctions. 21 days to fix statement (“safe harbor” rule to remedy pleadings)

o Surowitz v. Hilton Hotels Corp.(derivative/ stock actions old woman didn’t know info in complaint)
o Rule – The party verifying a complaint as required by the FRCP is not required to totally to verify the complaint on the basis of her own personal knowledge if she has been advised by a competent individual that the allegations in the complaint are true.

o Hadges v. Yonkers Racing Corp (horse racing case)
o Rule- Pursuant to rule 11, those facing sanctions must have adequate notice and the opportunity to respond.


FRCP 13, 14, 18, 19, 20, 23, and 42 are the joinder provisions.
Joinder claims are unlimited in federal court. Anything can be joined (See M.K. case).

o FRCP 20(a) is the governing rule for permissive joinder

o Joinder of parties acronym TEST-
 TO + CQ (Transaction or occurrence and Common Question (of law or facts)

o Does not require parties to be joined whenever the criteria in the rule are met.

o Joinder of plaintiffs
 Multiple plaintiffs may voluntarily join together in an action they satisfy TO+CQ

o Joinder of defendants
 If one or more plaintiffs have a claim against multiple defendants, these defendants may be joined based on the TO+CQ
• At plaintiff’s option: joinder of multiple defendants is at the option of the plaintiff.

o Aggregation where on P meets the amount
 Multiple plaintiffs are permitted to aggregate their claims to meet the amount in controversy requirement, if at least one plaintiff meets the amount.

o Tanbro fabrics corp v. beaunit mills inc
o Rule – Even though there are separate relationships, contract or duties existing between parties in a multiple action, modernly, a plaintiff; to consolidate his claims, need only show; 1. prima fasciae that one of the defendants caused the injury; 2. the defendant’s alternative liability arose from a common transaction; and 3. that there exist questions of law and fact common to all parties

o Ryder v. jefferson hotel co. (husband and wife sleeping inmotel room owner kicks them out)
o Rule – Where two or more persons suffer a tortious act arising out of the same occurrence or transaction, each person’s cause of action must be severed and tried separately, if the torts are of a personal nature.

o m.k. v. tenet (cia withheld information on certain plaintiffs harms etc.)
o Rule – an alleged pattern of obstruction of counsel justifies joinder of plaintiff’s under federal rule 20(a)

o The Ellis Canning Company, Co v. International Harvester Company, Co (mechanic set tractor on fire) FRCP 17(3)
o RULE- an insured who has been fully paid for his loss is not the real party in interest and, hence, cannot maintain an action to recover the amount of such loss for the use and benefit of the insurer

Compulsory Joinder

• If there is a possibility of multiple lawsuits without the party then the court will usually rule that the party is indispensible.

Two categories both must be considered. LOOK AT BIG PICTURE DON’T GET CAUGHT IN “N” OR “I”

FRCP 19(a) Necessary parties
less vital group consists of parties who (1) must be joined if this can be done; but (2) in whose absence because of jurisdictional problems the action will nonetheless be permitted to go forward.
A party is necessary if the party is not indispensible and either of the two following tests are met
 Incomplete relief
• In the persons absence, complete relief cannot be accorded among those already parties OR
 Impaired interests
• The absentee has an interest relating to the action, and trying the case without the absentee will either impair the absentee’s interest or leave on of the people already parties subject to multiple or inconsistent obligations.

FRCP 19(b) indispensible parties
The vital group consists of parties who are so vital that if their joiner is impossible for jurisdictional reasons, the whole action must be dropped.
 Factors:
• When the court decides whether a party is indispensable, the factors are
The extent of prejudice to the absentee, or to those already parties
The possibility of framing the judgment so as to mitigate such prejudice
The adequacy of a remedy that can be granted in the party’s absence
Whether the plaintiff will have an adequate remedy if the action is dismissed.

Situations in which compulsory joinder issues commonly arise:
Joint obligors: joint promisors under a contract should be joined whenever possible
Tortfeasors: whenever possible a D should join all parties potentially liable, although they are not considered necessary
Joint obliges: where two are jointly owed a duty under a contract, courts usually hold they are indispensable, and have dismissed if not joined
Co-owners of property
Shareholders: in a derivative suit by a shareholder, the corporation is usually looked at as an indispensable part.

Bank of California nat. ass’n v superior court (estate was split up between many people)
• Rule – Necessary parties are those who are so interested in the controversy that they should be normally joined in order to enable the court to do complete justice, but whose interests are separable so they are not indispensable parties, that is, parties without whom the court cannot proceed.

Provident tradesmen’s bank and trust co. v. Patterson (multiple car crash estate to be split)
• Rule – In the absence of a party who cannot feasibly be joined, a court should not dismiss the action if, in “equity and good conscience,” it could proceed without the party.

Modern Rules- parties may be joined in one action if:
a right to relief is asserted by or against them jointly, severally, or in the alternative;
in the alternative: if a plaintiff is in doubt as to which of several D. is liable, a claim can be brought in the alternative to determine who is liable.
separately or jointly: each plaintiff is not required have an interest in every cause of action, they can each seek sep. relief either separately or jointly.
the right to relief arises out of the same transaction;
there is at least one question of law or fact common to all parties sought to be joined.

o Modern Rules- persons are to be joined if feasible; Rule 19 provides that any person with interest in the subject matter shall be joined if:
in his absence complete relief cannot be accorded those already parties;
his interest is such that to proceed without him would be substantial prejudice as a practical matter (impair his ability to protect his interest in later proceedings, or expose the parties already before the court to the risk of double liability.) If the person to be joined cannot be made a party, the court must determine in good faith whether the action must be dismissed.*
*if an absentee is seen as potentially indispensable, his non joinder or joinder can be raised at any time, even at trial. Lack of or delay in this non joinder can be seen as grounds to dismiss (Provident Bank v. Trust Co.)

Counter Claim

o FRCP 13 authorizes a defending party in a suit to assert claims back against a party who has claimed against him.

o 13(a) compulsory counterclaim
 If the defending party’s counterclaim arises from “TO”, he must assert it or lose it.
 Any defending party, not just original defendant, can assert counterclaims against a party who has claimed against him.

o 13(b) permissive counterclaim
 One may assert counterclaims completely unrelated to the original claim. Would involve different events from the main claim.
 Any defending party, not just original defendant, can assert counterclaims against a party who has claimed against him.

o 13(g) cross-claim
 a claim asserted by one party against a co-party (someone on the same side of the “V”).
 Must arise out of the same “TO”

o RULE – cross-claims, counterclaims, and third party complaints arising out of the same transaction or occurrence as the subject matter of the original complaint MAY be joined with the original complaint

o FRCP 18(a) combining claims – a party seeking relief from an opposing party may join with his original claim any additional claims he has against that opposing party.
o Unlike 20(a), 18(a) requires NO “TO”
o This applies not only to the original plaintiff, but also to any party seeking relief against another party, whether on a counterclaim, cross claim, or 3rd party claim.

o Four part test to determine whether claims arise out of the same transaction or occurrence for the purpose of characterizing a counterclaim as compulsory or permissive.
Are the issues of fact and law raised by the claim and counterclaim largely the same?
Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?
Will substantially the same evidence support or refute plaintiff’s claim as well as defendants counterclaim?
Is there any logical relation between the claim and the counterclaim?

o Harris v Avery (stolen horse. Slander and false imprisonment)
• Rule – A plaintiff may unite causes of action where they have arisen from the same transactions connected with the same subject matter.

o M.K. v. Tenet (CIA case)
• Rule – federal rule 18 permits joinder of all claims a party has against an opposing party

o US v. Heyward-Robinson co. (construction federal joinder, compulsory claims)
• Rule- When a counterclaim is asserted on a contract in federal court, a claim based on another contract can be joined, if there is a logical relationship between the claims


• must be “if me, then them!” and not “NOT me, but them!
• Only Based on indemnification
• Impleading can only work against someone not a party. It brings in an entirely new party.

FRCP 14(a) – gives DEFENDANT limited right to bring into the suit new parties against whom she has claims related to the main action. The original defendant becomes the 3rd party plaintiff.

FRCP 14(b) – plaintiff may implead when a counterclaim is filed against them. The Plaintiff may implead a third person who is liable to him for any judgment on the counterclaim.

o The impleaded party may be liable to the D for “all or part” of the plaintiff’s claim against the D.

the third party may plead any defenses against the pl. claims for relief, even if same as def. (4th and 5th sentences)
the court may grant a sep. trial on any sep. issues if needed to prevent prejudice

o The impleader claim is treated like an original suit for pleading
The 3rd party plaintiff must comply with pleading requirements (rule 8-11).
The 3rd party plaintiff must respond under rule 12
3rd party defendant may also file counterclaims against 3rd party plaintiff and may implead other parties
The plaintiff AND 3rd party defendant can assert claims against each other if they arise out of the same “TO” (6th and 7th sentences)

o right to indemnity (cash causal connection) (A contract to compensate or reimburse a person for possible losses of a particular type;)
• impleader rules are confined to those situations in which the defending party has a right to indemnity, in whole or in part, against the impleaded third party.
EXAM TIP: most courts do not allow a plaintiff to implead a def. insurance company, it is only the def. right to implead his own insurer.
No right to indemnification under state law
If the appropriate state doesn’t recognize indemnity the FRCP doesn’t create that right.

• Jeub v b/g foods, inc. (served bad ham at one of their restaurants, sued umbrella corp.)
• Rule – In a federal action, impleader is permitted of a party who is or may be liable for indemnification to a party-defendant so long as the applicable state substantive law regarding indemnification is satisfied.

o Policy
• Favoring impleader
The efficiency of hearing the related claims together
Avoidance of repeated suits or inconsistent judgments
• Disfavoring impleader (courts may allow a separate trial)
Delay in seeking it
Complication of the issues in the main action
Potential prejudice to the plaintiff from impleading a sympathetic 3rd party.

• Too, Inc. v. Kohl’s Department Sotres, Inc. (stealing clothing designs, mulitple parties)
o Rule -Leave to entertain a proposed third-party claim should be granted, when after considering the delay by the movant, the complication of trial, and the merits of the proposed third-party complaint, the court concludes that the benefits of consolidation outweigh the prejudice to the plaintiff and third-party defendants.

Class Actions

o such actions are allowed where considerations or necessity or convenience justify an action on behalf of the group rather than multiple actions by or against the class members individually. (on behalf of all members of a class)

o Fed Rule 23- provides that members of a class can sue or be sued with binding effect on the class as a whole. (most states have adopted rule 23)

Fed. R. Civ. P. 23(a) states four threshold requirements applicable to all class actions: (1) numerosity, a class so large that joinder of all members is impracticable; (2) commonality, questions of law or fact common to the class; (3) typicality named parties’ claims or defenses are typical of the class; and (4) adequacy of representation, representatives will fairly and adequately protect the interests of the class.

• Pre-req’s of Class Action suits: WORK ON THIS COME NEXT OUTLINE SESSION 23A

• Federal Claim
o In a class action only ONE plaintiff need to have an injury that’s over 75K.

• 23(A)(4) Fairly and adequately protect the class.
Court will look at representative of class and the attorney to see if they can adequatly and fairly protect the class.

Numerous parties-the class must be so numerous that joinder of all members individually is impractical. (usually needs to be around 40 or 50 but based on courts discretion
Common question- the action must involve questions of law or fact common to the class (commonality, rule 23(a)
Representatives claims typical (typicality)- the claims or defenses of the persons maintaining the action on behalf of the class must be typical of those of the class generally (23(a)) because the representative acts on behalf of all claimants, the court needs to be assured that he or she will have the same objectives as the members of the class and sufficient motivation to protect their interests
Adequacy of representation- the persons representing the claims of the class must be able to protect the class interests, all members of the class (23(a)) need to make sure that there is no conflict of interest between representative and class
Numerous parties.- litigation is to be conducted by the persons whose rights are to involved as named parties: 1) no fixed minimum
Must look at the size of each members claim (the smaller the members claim, the more likely the class action to be allowed because they wouldn’t contest it on their own)
The practical likelihood that individual suits will be brought (the lower the likelihood, the more likely that class actions will be allowed)
The public importance of the right being enforced (the greater the public important, the more likely the class action to be allowed)
The geographic location of the class members (the more difficult the location and distance for class members to intervene, the more likely that a class action will be allowed)

• Exam tip- if the question involves a small numbers of plaintiffs, and you must determine whether the court would allow a class action, a good rule of thumb is that the less likely it is that individuals would bring their own suits or intervene, because of small damages or distance, the more likely it is that the court will allow a class action.

• No fixed maximum- 1) class must be manageable 2) notice requirement, the larger the class the more difficult to notify all members, but if possible may be allowed.

• Three categories of class action law suits

23(B)(1) (limited fund)- applies to situations similar to the circumstances requiring the joinder of necessary parties under Rule 19
• Test- a class action is allowed if individual actions by or against members of the class would create a risk of either: (a) inconsistent decisions forcing an opponent of the class to observe incompatible standards of conduct (23(b)(1)(A); or (b) the impairment of the interests of the members of the class who are not actually parties to the individual actions (23(b)(1)(B)).
EX of (B): if litigants are allowed to proceed individually, there is a risk that those who sure first will deplete the fund and leave northing for the latecomers.
23(B)(2) – civil rights class action
• A class action is allowed if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or…declaratory relief with respect to the class as a whole”
If the suit Is for an injunction or declaration that would affect all class members this is the right category.
The defendant’s conduct need only be ‘generally applicable’ to the class; there is no requirement that the conduct be damaging or offensive to every class member.
1. 23(B)(3) – most common type. Members claim they have been injured in the same way by defendant.
• Two requirements
1. Common questions : the court must find that the “questions of law or fact common to members of the class predominate over any questions affecting only individual members.
2. Superior methods: the court must also find that “a class action is superior to other available methods” For deciding the controversy. In deciding ‘superiority’ the court will consider four factors:
a. The interest of class members in individually controlling their separate actions
b. The presence of any suits that have already been commenced involving class members (if there are too many it hurts the class action)
c. The desirability of concentrating the litigation of claims in a particular forum
d. Any difficulties likely to be encountered in the management of a class action.

o Castano v. American Tobacco Co
Rule – Class actions may be certified under FRCP 23(b)(3) only if the requirements of predominance and superiority are met.

o Hansberry v. Lee (race covenant can’t sell land to blacks not everyone was under that covenant)
Rule – There must be adequate representation of the members of a class action or the judgment is not binding on the parties not adequately represented.

o Phillips Petroleum Co. v. Shutts (class action from peeps in all 50 states.)
Rule- a state MAY exercise jurisdiction over a class action plaintiff even if the plaintiff’s contacts with the state would not confer jurisdiction over a defendant

o Amchem Prods. v. Windsor (asbestos settlement class action)
Rule- class certification MUST meet the requirement of FRCP 23, except manageableness, even if certification is for settlement purposes only.

o Ortiz v. Fibreboard Corp (asbestos class action)
Rule – if class action is a 23(b)(1) claim, then the due process requirement is heightened because there is no notice requirement.


o privileged communication. N. A communication that does not have to be revealed during discovery because it occurred in a special situation, such as information revealed to a doctor by a patient or from one spouse to another.

o FRCP 26(b)(1) sets the SCOPE of discovery
o FRCP 26(b)(2) limits discovery

Mandatory discovery

o Required Initial disclosure FRCP 26(a)(1)

• All witnesses with discoverable information FRCP 26(a)(1)(A):
 first, each party must disclose the name, address, and phone number of each individual likely to have discoverable information that the party plans to use in the case
• Documents FRCP 26(a)(1)(A)::
 Second, a party must furnish a copy, or else a description by category and location, of all documents and tangible things in that party’s possession, that the party plans to use in its case.
• Damages FRCP 26(a)(1)(d):
 Computation of each category of damages claimed by disclosing party
• Insurance:
 Copy of any insurance agreement.

o Required disclosures concerning expert witnesses

• FRCP 26(a)(2): requires each party to disclose to each other party the identity of anyone who may be used at trial to present expert testimony.


o After the beginning of an action, any party may take the oral testimony of any person thought to have information within the scope of discovery. This is known as oral deposition.

o Deponent must respond as to only her present knowledge or recollection. Much different than interrogatories where they have to do some research with available info.

o Important random rules
• FRCP 30(b)(1) – notice is required to be given to all parties with relevant info of who when where the person is being deposed.
• FRCP 30(a)(2)(B) – a person can be deposed only once unless court orders more

o Oral depositions

• Usable against non-party
 Not only parties, but any non-party with relevant information, may be deposed

• Subpoena
 If a non-party / party is to be deposed, then the discovering party can only force the deponent to attend by issuing a subpoena. This subpoena must require the deposition to be held no ore than 100 miles from the place where the deponent resides, is employed, or regularly transacts business in person
frcp 45©(3)(a)(ii)
 If a party is to be deposed, a subpoena is not used. Instead, non-compliance with the notice can be followed up by a motion to compel discovery or to impose sanctions under frcp 37
• If a nonparty then you have to get a subpoena first before sanctions.
 If a plaintiff is summoned for a deposition they must go wherever the defendant demands.

• Limited to 10
 Each side is limited to a total of ten depositions, unless the adversary agrees to, or the court issues an order allowing more. Frcp 30(a)(2)(a).
• Method of recording
 The party ordering the deposition can arrange to have it recorded by stenography (court reporter), by audio tape recorder, or by video recorder. Frcp 30(b)(2)

• Request to produce (FRCP 34)
 The person seeking discovery will often also want documents held by the deponent. If the deponent is a party, the discovering party may attach a FRCP rule 34 request to produce to the notice of the party. But if the deponent is a non-party the discovering party must use a subpoena duces tecum.
 FRCP 30(b)(6) corp. assoc. notice.
• An attorney may notice the deposition of a corp. or assoc. requiring the latter to produce the person or persons having knowledge of the subject matter upon which the deposition is to be taken.

• Depositions upon written questions
 Any party may take the oral responses to written questions, from any person (party or nonparty) thought to have discoverable information. Frcp 31. this is called a “deposition on written questions”
• Distant non party witnesses
• Depositions on written questions are mainly used for deposing distant nonparty witnesses. Such witnesses cannot be served with interrogatories (since these are limited to parties), and cant be compelled to travel more than 100 miles from their home or business.

• Discovery prior to commencing a lawsuit -In re Ford (cops shot her father she is looking to do a discovery process before file is claimed )
Rule – FRCP 27 (Depositions to Perpetuate Testimony) does not permit a pre-complaint deposition without a showing that the deposition is necessary for perpetuating the witness’s testimony (dying, senile etc).

• Relevance discovery Kelly v. Nationwide Mut. Ins. Co (insurance company was looking for specific information that could only be found with discovery)
• Rule – Interrogatories are proper that are relevant to an issue in the action, seek unprivileged information and information that would also be admissible as evidence, but do not seek discovery, the manner whereby the opponent’s case is to be established, evidence that relates exclusively to his case, nor what his witnesses will testify.

• Privileged information – Marrese v. American Academy of Orthopaedic Surgeons (P wanted all the info of all applicants for the Dr. group)
• Rule – A motion to limit discovery under rule 26© should not be granted where the party seeking discovery would incur hardship without the material sought, and the party against whom discovery is sought would suffer hardship if forced to produce the material sought, if the competing interest can be served with minimal damage to either.

• Protective order – FRCP 26.C -Seattle Times Co. v. Rhinehart, (newspaper wanted al the members and their contributions to print)
• Rule – A protective order in a discovery matter ordering a newspaper not to publish discovered information does not violate the first amendment

• Mandatory discovery Cummings v. GMC (car co. had video evidence it didn’t give out in discovery request)
• Rule – Federal rule 26, as amended in 2000, does not require disclosure of relevant evidence that a party does not intend to use at trial.

• Polycast technology corp. v. uniroyal inc. (co. didn’t want their auditor to be deposed)
• Rule – A non-party witness should be ordered to be deposed if his testimony is relevant and not duplicative of other witnesses’ testimony.

Interrogatories to the parties

• An interrogatory is set of written questions to be answered in writing within 30 days by the person to whom they are addressed. Interrogatories may be addressed only to a party.

• FRCP 33(a)
 Each party is limited to 25 interrogatory questions directed to any other party, unless the parties stipulate otherwise or the court orders otherwise. Available information frcp 33(a)
 A party served with interrogatories is obliged to respond by furnishing such information as is available to the party. The party served therefore is obliged to respond to the interrogatories not only by providing the information it has, but also the information within its control or otherwise obtainable by it.
• FRCP 33(d)
 Business option: if the burden of finding the answer to the interrogatory would be substantially the same for both parties, party B (instead of finding the answer herself) can simply give party A access to the business records so she can find the answer.

o Interrogatories -In re Auction Houses Antitrust Litig. (co. didn’t think they had info and an old employee with a golden paruchute did)
• Rule – An international company should be compelled to answer interrogatories, despite its claims that the requested information is outside its control, if the company still has plausible avenues for acquiring the requested information and if other typical factors favoring compelling discovery from an international litigant are present.

o Interrogatories -In re Convergent Technologies Sec. Litigation (judge went through list of interagatory and said what could and couldn’t be asked)
• Rule – The pretrial discovery process should be self executing and have minimum judicial intervention.

Physical and Mental examinations

FRCP 35 (always requires a court order / party only)
o When the mental or physical condition of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner.
Motion and good cause
 Unlike all other forms of discovery, rule 35 operates only by court order. The discovering party must make a motion upon notice to the party to be examined, and must show good cause why the examination is needed (must be beyond relevancy which is already established in FRCP rule 26.
• Good cause balancing test = weighing the pain, danger, or intrusiveness of the examination against the need for, or usefulness of, the information to be gained.
 The physical or mental condition of the party must be in controversy. It is not enough that the condition would be somehow relevant. A good cause for the examination is needed.
1. Reports from examiner are discoverable
 The actual medical report produced through a rule 35 examination is discoverable (in contrast to the usual non discoverability of expert reports.
• FRCP 35(b)(1)Who may receive: a person examined (typically the opposing party) may request, from the party causing the exam to be made, a copy of the examiners written report.
• FRCP (35(b)(2) Other examinations: once the party asks for and receives this report, then the other party is entitled to reports of any other examinations made at the request of the examinee for the same condition.

o Schlagenhauf v. Holder (important) (bus rear ended a trailer tractor everyone sued everybody)
• Rule –
a. FRCP 35, the rule provides for physical and mental examinations of parties, is applicable to defendants as well as plaintiffs
b. Under FRCP 35, although the person to be examined under the rule must be a party to the action, he need not be an opposing party vis a vis the movant.
c. Under FRCP 35, a person who moves for a mental or physical examination of a party who has not asserted his mental or physical condition either in support of or in defense of a claim, must affirmatively show the condition sought to be examined Is really in controversy and that good cause exists for the particular examination requested.

Requests for admission (admit or deny discoverable matter)

• FRCP 36
o One party may serve upon another party a written request for the admission, for the purposes of the pending action only, of the truth of any discoverable matters.
• Coverage: the statements whose genuiness may be requested include statements or opinions of fact, the application of law to the fact, and the genuine of any documents
• Expenses for failure to admit: if a party fails to admit the truth of any matter requested for admission under rule 36(a), and the party making the request proves the truth of the matter at trial, the court may then require the party who refused to admit to pay reasonable expenses sustained by the movant in proving the matter (rule 37.C)
• Affect at trial: if a party makes an admission under rule 36, the matter is normally conclusively established at trial.

o Failing to respond: if a responding party fails to deny a request to admit, the matter is deemed admitted.

Use of discovery results at trial

• Request to produce
o The admissibility of documents and reports that were obtained through a rule 334 request to produce is determined without regard to the fact that these items were obtained though discovery. These documents will thus be admissible unless their contents constitute, prejudicial, hearsay, or other inadmissible material

• Depositions :the admissibility of depositions is determined through a two-art test. Both parts must be satisfied.
o Test 1
• First, determine whether the deposition statement sought to be introduced would be admissible if the deponent were giving live testimony. If not, the statement is automatically inadmissible. (ex. Hearsay)
Test 2
• Second, apply the four categories test. Since the use of a deposition statement rather than live testimony is itself a form of hearsay, the deposition statement must fall within one of the four following categories, which are in effect exceptions to the hearsay rule:
FRCP 32(a)(2) – Adverse party : the deposition of an adverse party, or of a director or officer of an adverse corporate party, may be admitted for any purpose at all.
FRCP 32(a)(1) – impeachment: the deposition of any witness, party or non-party, may be used to impeach the witness’ credibility.
Adverse witness’ deposition for substantive purposes: a party may use a deposition of an adverse witness for substantive purposes, if it conflicts with that witness’ trial testimony. (P says “light was green”, D says “light was red”)
FRCP 32(a)(4) – other circumstances” the deposition of any person (party or non party) can be used for any purpose if one of the following conditions, all relating to the witness’ unavailability exists; (1) the deponent is dead; (2) the deponent is located 100 or more miles from the trial; (3) the deponent is too ill to testify; (4) the deponent is not obtainable by subpoena or (5) there are exceptional circumstances that make it desirable to dispense with the deponent’s live testimony.
• FRCP 32(a)(6) Partial offering: if only part of a deposition is offered into evidence by one party, an adverse party may introduce any other parts of the deposition which in fairness ought to be considered with the party introduced. (ex. One side reads only part of an answer, the other side may read the rest of the answer)

Interrogatories: the interrogatory answer of a party can be used by an adverse party for any purpose.
• Not binding: the statements made in interrogatories, like statements made in depositions, are not binding upon the maker – he may contradict them in court.

Admissions: admissions obtained under the rule 36 conclusively establish the matter admitted.

Physical and mental examinations: the results of physical and mental examinations made under rule 35 are almost always admissible at trial.

Battle v. Memorial Hosp (dr. testiomony not allowed, and Dr. was out of state. boy was hurt by hospital, mother sued everyone, hospital granted summary judgment)
• Rule –
1. A trial judge should admit a video deposition as evidence at trial if the witness is unavailable and the parties objecting to the video all had the same motive for questioning the witness during the deposition that they have for questioning him at trial
2. A trial court is well within its discretion to prohibit live testimony, in favor of testimony by video deposition, if the witness is unavailable and the offering party’s own conduct caused the other side to incur the expense of the witnesses testimony by video deposition.

Trial preparation immunity

o Definition – Certain immunity from discovery is given to the material prepared by counsel for trail purposes, and to the opinions of experts that counsel has consulted in trial preparation. This immunity is often referred to as work product immunity
o Govt. agencies – The work-product doctrine does apply in tax summons and other administrative law proceedings.
o Waived – If A told B the privileged information, and B is not a party to the case (friend, relative), then the immunity is waived.

o Qualified immunity: qualified immunity is given to documents prepared in anticipation of litigation or for trial, by a party or that party’s representative.
• Representative defined: a party’s representative include his attorney, consultant, insurance company, and anybody working for any of these people (including client).
• FRCP 26(b)(3) Hardship: the privilege is qualified rather than absolute. This means that the other side might be able to get discovery of the materials, by only by showing substantial need of the materials in preparation of the case and an inability to obtain the equivalent materials without undue hardship.

o Absolute immunity (Rule 26(b)(3)(b)): in addition to the qualified work product immunity discussed above, there is also absolute immunity. Rule 26(b)(3)(b) provides that even where a party has substantial need for materials (in other words, the showing for qualified immunity has been made), the court shall protect against disclosure of the mental impression, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
• Attorney client privilege
• ex. Oral materials per Upjohn case

o Hickman v. Taylor *big case* (tug boat wreck, survivors interviewed, P wanted all the info provided by D’s attorney)
Rule – Material obtained by counsel in preparation for litigation is the work product of the lawyer, and while such material is not protected by the attorney-client privilege, it is not discoverable on mere demand without a showing of necessity or justification.
• FRCP 26(b)(3) is the rule created by the case (w/ exception of personal thoughts not written down).

o Upjohn Co. v. United State (co. was bribing foreign officials for business. Co. started in-hose interview w/transcripts, IRS wanted all that info)
The attorney-client privilege extends to communications between a corporations’ attorneys and nonmanagerial corporate employees
FRCP 26(b)(3) applies to, and especially protects, notes of oral statements by witnesses, and great need must be shown for their disclosure.

Discovery concerning experts

o Experts to be called at trial: where on side expects to call an expert at trial, the other side get extensive discovery
• Identity: first, a party must automatically (without request) give the other side a list identifying each expert who will be called at trial
• Report: second, a party who intends to call an expert at trial must have the expert prepare and sign a report containing, among other things (1) the expert’s opinions, and the basis for them (2)the data considered by the expert (3) any exhibits to be used by the expert at trial (4)the experts qualifications (5) her compensation and (6) the names of all other cases in which she testified as an expert in the preceding 4 years.
• Deposition: the expert who will be called at trial must also be made available for deposition by the other side. See FRCP 26(a)(2)(A), 26(a)(2)(b), and 26(b)(4)©
1. The protection afforded by Fed. R. Civ. P. 26(b)(3) (work product) is subject to Fed. R. Civ. P. 26(b)(4), which generally authorizes discovery of testifying expert witnesses. Specifically, Fed. R. Civ. P. 26(b)(4) authorizes the depositions of any person who has been identified as experts whose opinions may be presented at trial.

o FRCP 26(b)(4)(B) Expert retained by counsel, but not to be called at trial: where an expert have been retained by a party, but will not be called at trial, discovery concerning that expert (her identity, knowledge and opinion may be discovered only upon a showing of exceptional circumstances making it impractical for the party seeking discovery to obtain the information by other means.

1. Unretained experts not to be called at trial: where an expert is consulted by a party, but not retained, and not to be called at trial, there is virtually no way the other side can discover the identity or opinions of that expert.

1. Participants experts: a participant expert — one who actually took part in the transactions or occurrences that are part of the subject matter of the law suit — is treated like an ordinary witness. (ex. An arresting cop or pathologist –autopsy guy)
a. Expert is a party: similarly, a party who is herself an expert (ex. A doctor who is a defendant in a malpractice suit) is treated like an ordinary witness for discovery purposes, not like an expert.

1. FRCP 26((e)(2) Duty to amend information: For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition.

o Krisa v. Equitable Life Assur. Soc’y (insurance denied money, so P wanted the info that was given and produced by an expert, even though they didn’t plan to use it at trial)
• Rule – Core work product generated by an attorney is shielded from discovery even if disclosed to an expert.

Sanctions under discovery

o Cine Forty-Second Street Theatre Corp. v. Allied Artists Picture( laywer didn’t answer correctly all the discovery for four years)
• Rule – A grossly negligent failure to obey an order compelling discovery is sufficient to justify the severest disciplinary measures available under FRCP 37.

Summary judgment (distinct from failure to state a claim as noted earlier)

o FRCP 56 – If one party can show that there is no ‘genuine issue of material fact’ in the lawsuit, and that she is ‘entitled to judgment as a matter of law” se can win the case without going to trial such a victory without a trial is called a “summary judgment”
• Court goes behind pleadings: the court will go “behind the pleadings” in deciding a summary judgment motion — even if it appears from the pleadings that the parties are in dispute, the motion may be granted if the movant can show that the disputed factual issues presented by the pleadings are illusory
• How shown: the movant can show the lack of a genuine issue by a number of means. For example, the movant may produce affidavits, or use the fruits of discovery (depositions, interrogatory answers) to show that there is no genuine issue of material fact.
 Burden of production: the person moving for summary judgment motion — that is, the movant must come up with at least some affirmative evidence that there is no genuine issue of material fact.
1. Opposition: the party opposing the summary judgment usually also submits affidavits, depositions and other materials
a. If there is a question of facts still in question then the court should deny the summary judgment.
 FRCP 56(e) – Opponent can’t rest on pleadings: if materials submitted by the movant show that there is no genuine material issue of fact for trial, the non-movant cannot avoid summary judgment merely by repeating his pleadings’ denial of the allegations made by the movant. In other words, the party opposing the motion may not rest on restatements of her own pleadings, and must instead present by affidavits or the fruits of discovery specific facts showing that there is a genuine issue for trial.
 Construction most favorable to non-movant: on the other hand, once the opponent of the motion does submit opposing papers, he receives the benefit of the doubt. All matters in the motion are constructed most favorably to the party opposing the motion. The fact that the movant is extremely likely to win at trial is not enough; only if there is no way, legally speaking, that the movant can lose at trial, should the court grant summary judgment.
FRCP 54(b) Partial summary judgment: summary judgment may be granted with respect to certain claims in a lawsuit even when it is not granted with respect to all claims. This is called partial summary judgment.
a. Example: Court may grant P partial summary judgment on liability, but will take the case to trial for the issue of damages.

o Lundeen v. Cordner (discovery information that the insurance money does go to the decedents new family)
• Rule – Where no genuine issue as to any material fact remains, the court may grant summary judgment if the information presented would entitle one of the parties to a directed verdict.