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Civil Procedure Ii Outline

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This is an extract of our Civil Procedure Ii document, which we sell as part of our Civil Procedure II Outlines collection written by the top tier of University Of Washington School Of Law students.

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Cite Jurisdiction and Appellate Jurisdiction in each problem Argue in the Alternative A. Process for Filing an Appeal B. Appellate Review:

1. Review of decisions from state courts

2. Final Judgment Rule

3. Collateral Order Doctrine

4. Interlocutory appeals

5. Writ of Mandamus C. Subject matter jurisdiction: Analyze all claims under both possibilities

1. Federal Question: 28 U.S.C. SS 1331

2. Diversity Question: 28 U.S.C. SS 1332 D. Personal Jurisdiction: Minimum Contact with State where action is filed E. Supplemental Jurisdiction: 1) is there a claim with regular jurisdiction and does supplemental claim come from same nucleus of operative facts; if so, 2) in a diversity case, is P making an end-run around diversity requirements; and 3) district courts have discretion (based on a number of factors) whether to grant or deny supplemental claim F. If diversity case, are there Erie issues? If yes, go through the chart G. In federal question with supplemental jurisdiction, are there Erie issues?
H. Summary Judgment I. R41: Dismissal J. R60b: Relief from Judgment K. Severance and Consolidation: R42 L. Joinder of Claims: R18 M. Counterclaims R13 N. Crossclaims R13 O. Joinder of Parties R19-20 P. Impleader R14 Q. Intervenor R24 R. Interpleader: Statutory and Rule S. Class Action: 23a requirements T. Class Action: 23b requirements U. Class Action: Notice V. Class Action: Settlement W. Claim Preclusion: Res judicata X. Issue Preclusion: Collateral Estoppel Y. Preclusion Against Other Parties (non-mutual collateral estoppel) Z. Recognition of Judgments from other jurisdictions


I. Filing a Notice of Appeal A. Party who gets less than they want may appeal, but party seeking to vindicate a specific legal theory

may not B. Only requirement for appeal is timely filing appeal papers with dct

1. Payment required, but this is not jurisdictional

2. Requirements of notice of appeal are liberally interpreted: specification of party taking appeal, designation of judgment appealed from, and name of the court to which appeal is taken C. FRAP rules on appeal as of right:

1. Filing, required within 30 days of entry of judgment FRAP 4(a)(1)

2. May be extended if there is "excusable neglect" FRAP 4(a)(5) and request to extend is filed within 30 days of initial appeal deadline

3. Cross-Appeal: Other parties filing appeals must do so within either 30 days of entry of initial order, or 14 days of other party files appeal, whichever is later FRAP 4(a)(3)

4. Dct may reopen time to file appeal under FRCP 4(a)(6) if: a. Moving party did not receive notice of entry of judgment b. Motion is filed within 180 days of entry of judgment and 14 days of moving party's receiving notice c. No party would be prejudiced D. FRAP rules on appeal by permission:

1. Must petition the circuit court for permission to appeal FRAP 5

2. Must be filed within time in FRCP 4(a), unless some other time provided E. Federal Rules that toll the time limit for appealing:

1. R50b motion for judgment

2. R52b motion to amend the findings

3. R59 motion for new trial

4. R59e motion to alter or amend judgment

5. R60 motion for relief from the judgment

6. R54 motion for attorney's fees but only if the DCt has extended the time for appeal under R58

II. Appeal Mechanisms A. Review of decisions from state courts: 28 U.S.C. 1257: Under Cox Broadcasting Corp. v. Cohn, p.

1338, there are for situations in which the Supreme Court may review a state supreme court decision before final determination made of all of the issues:

1. Cases in which there are further proceedings but where for one reason or another the federal issue is conclusive or the outcome of further proceedings is preordained

2. Cases where federal issue, finally decided by highest court of state, will survive and require decision regardless of outcome of future state-court proceedings

3. Situations where fed claim has been finally decided, with further proceedings on the merits in state courts to come, but in which later review of federal issue cannot be had regardless of ultimate outcome of case: i.e. where the person, if they lose, would be barred from further appealing federal issues

4. Situations where fed issue has been finally decided in state courts with further proceedings pending in which party seeking review might prevail on merits on nonfederal grounds, thus rendering unnecessary review of fed issue by Supremes, and where reversal of state court on federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, state proceedings still to come B. Final decision rule: 28 USC 1291: Parties may only appeal final decisions of courts. However, three mechanisms allow review before final judgment:

3 C. Interlocutory appeals: 28 USC 1292

1. 1292(b): When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

2. 1292(a): Interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; a. (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; b. (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. c. Both District Court and Court of Appeals must agree

3. Rule 23f allows for interlocutory appeal of a grant or denial of class action certification motion in the discretion from the Court of Appeals. Must be filed within 14 days of denial of certification motion.

4. This is discretionary, and the judge will indicate if it is possible. If so, the appeal window is 10 days. 28 USC 1292(b) D. Collateral Order Doctrine: not an exception to the final judgment rule, but just a practical construction of it. Digital Equipment Corp v. Desktop Direct, Inc. p. 1345.

1. This doctrine applies and allows review where in cases where: a. District Court decisions must be conclusive b. Important issue that has broad significance c. Must be separate from the merits d. Or a case that would render such important questions unreviewable on appeal from the final judgment in the underlying action e. Digital Equipment: order denying effect to a settlement agreement, even if it involves a right not to stand trial altogether, is not sufficiently important enough to come within the narrow ambit of collateral orders. The private contract issue is not as important as a constitutional or statutory provision entitling a party to immunity from suit.

2. Examples of what does and does not constitute a collateral order are on pgs. 1358-59 E. Writs of Mandamus: 28 USC 1651

1. Has been granted: a. Where judge refuses to disqualify self despite conflict b. Judge over-delegates to special master c. Judge never allows removal d. During 1990s, was used to review class certification decisions

2. This is a drastic measure, to be applied only in extraordinary situations. Kerr v. U.S. District Court p. 1351

3. Before this issues, appellate court must find: a. Party seeking issuance of the writ has no other adequate means to attain relief desired b. That party shows his right to issuance of the writ is "clear and indisputable"


4. Issuance of the writ is a matter of discretion with the court to which the petition is addressed

5. Examples of granted mandamus are on pg. 1359 F. Defy the Discovery Order and Face Sanctions Under R37, which is immediately appealable G. FRCP 52: A court may make final determinations on certain issues before the conclusion of the trial as a whole H. FRCP 54: allows a district court in a multi-claim or multi-party case to enter a final judgment as to any claim or party prior to termination of the entire litigation but "only if the court expressly determines that there is no just reason for delay. I. Not Pressed or Passed Upon Below Rule: In order for a party to preserve an issue through state courts and up to Supremes, they must specifically plead that challenge through all lower court proceedings. Bankers Life & Casualty Co. v. Crenshaw p. 1360

1. This rule is not jurisdictional, but prudential and protects comity to states and provides a fully developed record of the issues J. SCOTUS Review of state court decision: 28 USC SS 1257

I. Subject-Matter/Original Jurisdiction A. Introduction

1. Congress has no power to extend subject matter jurisdiction beyond the limits established by Art. III, Section 2, which extends the Judicial Power to all cases "arising under" federal law.

2. Article III power has been extended to some areas not specifically enumerated in order to effect the policies of Art. III. Those include removal and supplemental jurisdiction.


3. Limited jurisdiction because of federalism and states' rights: There is a presumption against federal jurisdiction and the party invoking it must demonstrate the existence of subject matter jurisdiction at the outset. B. Constitutional Arising Under

1. Jurisdiction is okay if there is a "federal ingredient." An ingredient case is one which raises federal law in either a claim or defense, or at least raises a federal issue in proving the case, and it can be satisfied by either the P or the D. Osborn v. Bank of the US: Marshall opined that any case brought by Bank would arise under federal law because Bank was established by federal statute. Opinion so broadly worded that virtually any claim that relies on or establishes a proposition of federal law would constitute "arising under."

II. Federal Question A. 28 U.S.C. SS1331: "District courts shall have original jurisdiction of all civil cases arising under the

Constitution, laws, or treaties of the United States." B. Jurisdiction is okay if there is a "federal ingredient." An ingredient case is one which raises federal law in either a claim or defense, or at least raises a federal issue in proving the case, and it can be satisfied by either the P or the D. C. SS 1331 only applies if P's claim requires proof of federal law: P must plead substantial federal issue in complaint, otherwise no jurisdiction. P cannot gain federal court access based on an anticipated defense or counterclaim.

III. Diversity of Citizenship A. 28 U.S.C. SS 1332: "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. 1) citizens of different States; 2) state citizens and subjects of foreign state; 3) citizens of different states in which subjects of a foreign state are additional parties; 4) a foreign state as plaintiff and citizens of a state or different state. B. Time: Determining whether diversity exists occurs when the complaint is filed. Once diversity jurisdiction attaches, it is not impaired by a party's later change of domicile. C. Rule of complete diversity: in multiparty suits, the presence of a single P who is a citizen of the same state as any D will defeat jurisdiction. D. Amount in controversy: must exceed $75,000, exclusive of interests and costs. E. Downsloping: a claim brought by the third party D against the original P, does not divest court of diversity jurisdiction: Upsloping: claim brought by P against third party D does prevent diversity jurisd

IV. Supplemental Jurisdiction A. 28 U.S.C. SS 1367(a): provides federal courts with adjudication power over all 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. B. Federal Question Cases: supplemental jurisdiction under SS 1367(a) is as broad as Article III will permit for the exercise of original jurisdiction. C. Ancillary Versus Pendent: Ancillary: Used in diversity actions. A claim is ancillary when it arises out of the same transaction or occurrence that is the subject matter of a claim already properly before the Court. Pendent: Most commonly invoked when a P brought a federal-question claim against a D and sought to have a related state-law claim against the same D adjudicated in the same action D. Three-Part Analysis:


1. First, court must determine whether there is Constitutional power under Article III to hear supplemental claim. Under Gibbs, a court has the power if there is a proper claim within the jurisdiction of a federal court and the related claim arises from the same "common nucleus of operative facts" and must be such that P "would ordinarily be expected to try them all in one judicial proceeding." Jones says "loose factual connection" for Article III inquiry. a. The same standard for "common nucleus of operative facts" is used in R13a1a (compulsory counterclaim); R13g (cross-claim); R14a (impleader); R24a (intervention as of right); R18 (joinder). Use same analysis for both. b. Jones pg 722-23: common nucleus or operative fact test may not state the outer limits of the "same case or controversy" under SS 1367 and Article III.

2. Second, a court must determine whether there are any statutory limitations. In DIVERSITY cases, SS
1367b bars certain claims, which would contradict diversity jurisdiction limits, such as those made under Rule 14, 19, 20, or 24, because exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section SS 1332. a. HOWEVER, SS 1367b only bars certain claims by PLAINTIFF'S in diversity cases, so counterclaims or cross-claims by DEFENDANTS are okay. b. Owen Equipment v. Kroger: Court held that jurisdiction couldn't be asserted over a P's claim against a third-party D even though the claim arose out of the same transaction as the main action, which met diversity qualifications. Otherwise, allowing jurisdiction would be inconsistent with complete diversity if it would permit P who couldn't join nondiverse party as original D to achieve the same result through indirect means. c. Allapattah: where the other elements of jurisdiction are present (and well-pleaded) and at least one named P has satisfied the amount-in-controversy requirement, SS 1367 authorizes supplemental jurisdiction over other P's claims in the same Article III case or controversy even if those claims are below the amount-in-controversy requirement. If court has jurisdiction over a single claim, it has jurisdiction over a "civil action" within the meaning of SS 1367(a).

3. Third, the discretion prong, which is governed by SS 1367c: 1) claim raises novel or complex issue of state law; 2) the claim substantially predominates over the federal claims; 3) the district court has dismissed all federal claims; 4) in exceptional circumstances there are other compelling reasons for declining jurisdiction. a. Executive Software: District court failed to articulate SS 1367c reasons for declining jurisdiction and abused its discretion. SS 1367c4's catchall provision that says "compelling reasons" should be of the same nature as those factors listed 1-3. The 1-3 factors point towards declining jurisdiction to best accommodate the values of economy, convenience, fairness and comity. b. Jones pg 720: Where at least one of the 1367(c) factors is applicable, a court should not decline to exercise jurisdiction unless it also determines that doing so would not promote the values articulated in Gibbs of economy, convenience, fairness, and comity E. Federal Rule 82: the Rules don't extend or limit the jurisdiction of the district courts F. Remand and Tolling: If at any time it appears unwise to resolve a pendent state claim, the court can dismiss it without prejudice and P can file back in state court. In the event federal court refuses jurisdiction, SS 1367 also includes a tolling provision to preserve a party's right to seek relief in state forum.


I. Severance and Consolidation A. Severance: R42b: court may sever "for convenience, to avoid prejudice, or to expedite and

economize." B. Consolidation: R42a: may consolidate separately filed cases, sometimes consolidated for trial or pretrial purposes. C. Decision to consolidate or sever left to the discretion of district court judge and is not reviewable until there has been a final judgment in trial court.

II. Joinder of Claims (multiple claims in same pleading) A. Supplemental Jurisdiction: Generally, rules governing joinder of claims and parties may permit

broader joinder than allowed by federal courts' SMJ. So, joinder issues must always be analyzed in conjunction with supplemental jurisdiction B. R18a: provides that a party asserting a claim for relief, whether as an original claim by P, a counterclaim against D, a cross-claim against a co-party, or as a claim against a third party, may join any other claim to that claim. C. Need Not Be Related: Generally speaking, under R.18 claims joined need not be related. They must only be contained in the same pleading. Specifically, R.18 has no T/O test. This is different than the rule on joinder of parties under R.20 (below) D. Effect: is to allow a party who brings a claim against another party to bring all her claims against that party at the same time, whether those claims are related or not. Rationale is efficiency. E. Diversity cases: if P seeks to join new and unrelated claim based on state law, there is no independent basis for SMJ, and there is no Supp J because the claim is not part of the same case or controversy, therefore SMJ prevents joinder. F. If there is a single P and a single D, R18 is the only rule that must be satisfied. But if there are more than one P or D, there is a joinder of parties as well as joinder of claims, and R20a's relatedeness requirement must be met.

III. Counterclaims A. Compulsory Versus Permissive: Determination of whether a counterclaim is compulsory or

permissive stems from whether they "arise out of the transaction or occurrence T/O that is the subject matter of the opposing party's claim." Jones v. Ford Motor Credit Co. p. 712 B. Compulsory counterclaim: must be asserted or the D may not assert that claim in any subsequent suit. Res judicata applies: But two exceptions

1. Counterclaim need not be filed in current proceeding if it is already pending as a claim in another proceeding: R13a2A

2. The counterclaim need not be filed if the opposing party has not obtained personal jurisdiction over the party who has a counterclaim: R13a2B C. Compulsory standard met where there is a "logical relationship" between the two, such that they should be resolved in one lawsuit. Although the logical relationship test doesn't require an absolute identity of factual backgrounds, the essential facts of the claims must be so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.

1. Jones: the essential facts for proving the Ford's debt collection counterclaims and the Equal Credit Opportunity Act claim are not so closely related that resolving both sets of issues in one lawsuit would yield judicial economy. D. R13a Compulsory counterclaims get Supplemental jurisdiction under SS 1367a1A because that statute says "so related" and 13 says "transaction and occurrence"; it's the same thing.

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