Written by Afshin Yazdani 2025

Federal Court Forum Jurisdiction

Court’s Personal Jurisdiction Vs. Court’s Subject Matter Jurisdiction. When we discuss whether the court has power over the defendant, it is a matter of Personal Jurisdiction (PJ), whereas when the court is considering whether it has power over the case, it is a Subject Matter Jurisdiction (SMJ).

Unlike SMJ, the defendant can waive the lack of PJ.

1.Personal jurisdiction

There are two basic requirements to see if the court has power over the defendant: (1) the defendant must have sufficient contact with the forum state; (2) exercising the power is fair and reasonable.

Two-step analysis:

1. Exercise of power must satisfy the state statute
2. Exercise of power must satisfy the Constitution or due

To meet the first requirement, the federal court uses state statutes. State statutes are long-arm statutes that give personal jurisdiction over non-residents who perform or cause certain things within the state. States’ statutes are of two types: either a state with the full extent of the constitution or a state with a laundry list that specifies the requirement for the court’s PJ.

To meet the second requirement, the court must have the minimum contact with the defendant so that PJ doesn’t offend fair play and justice. Factors for minimum contact are (a) contact, (b) relatedness, and (c) fairness.

1.1 Contact

There must be minimum contact between the defendant and the forum. To determine the minimum contact, two factors must be considered: (a) purposeful availment, which is a voluntary act of the defendant. An effect without physical contact can cause it. (b) foreseeability, which is that the defendant can foresee that they can be sued in the forum.

1.2 Relatedness

Plaintiff’s claim must arise from or be related to the defendant’s contact with the forum. If the answer is yes, then there is a specific PJ. In this situation, the defendant’s contact caused the harm. For example, the defendant’s driving caused the accident in the forum, or the defendant was marketing defective products. If the harm is unrelated to the defendant’s contact with the forum, it can fall under general PJ. The court has a general PJ where the defendant is at home, which for individuals is where they domicile, and for legal entities is where they were incorporated and where the principal place of business is located or where the defendant has registered business and agent. There can also be a “tag jurisdiction” where the defendant has been served with process in the state.

1.3 Fairness

This factor comes into play only for a specific PJ. This means that when the plaintiff’s claim arises or is related to the defendant’s contact with the forum, the court will exercise its PJ only if it is fair or reasonable. Factors to be considered are: (a) the burden on the defendant and witnesses to prove there is a severe disadvantage in the litigation if the court hears the claim; Being the most convenient forum for the defendant is not a factor. (b) the state’s interest in protecting its citizens; and (c) the plaintiff’s interest.

2.Subject Matter Jurisdiction

Unlike the state court, which has general power, the federal court has limited power over cases. Unlike the PJ, the SMJ is not waivable, and the judgment will be voided.

State courts have jurisdiction to hear all kinds of cases, including federal law claims, except (a) patent infringement, (b) bankruptcy, (c) federal security, and (d) antitrust claims.

There are two situations in which the federal court has power over the case: (1) Diversity of Citizenship and Alienage, and (2) Federal Questions.

2.1 Diversity of Citizenship and Alienage

The diversity of citizenship refers to cases involving citizens of different states in the US. A case involving a U.S. citizen and a foreign citizen is called alienage. In addition, the amount in controversy must exceed $75,000.

The complete diversity rule requires that no defendant and no plaintiff be citizens of the same state when the case is filed. The plaintiff can change his state and create diversity before the case commences. The factors for a new domicile determination are (a) physical presence in a new state, and (b) the plaintiff’s intent to make the state his domicile, supported by evidence.

Regarding alienage, a foreign citizen includes green card holders, but alienage jurisdiction is withdrawn when a green card holder is domiciled in the same state. In that case, the federal court has no SMJ.

2.1.1 Determination of Parties’ Citizenship

For individuals, citizenship is the state in which they are domiciled. For descendants, minors, and incompetent individuals, they are citizens of the state where they are domiciled, regardless of where their representatives are domiciled. In a class action, the citizenship determination is based on the named representatives of the class’s place of domicile.

For legal entities, citizenship is where they are incorporated and also where they have their principal place of business or PPB, which is where the corporation’s manager directs, coordinates, and controls the business activities. This is also called the corporation’s nerve center.

For unincorporated business entities, including limited partnerships or LPs, their citizenship is where all their members or partners are domiciled.

2.1.2 Calculation of the amount in controversy

As a part of the diversity jurisdiction, the amount of controversy must exceed $75,000. There are some important factors to consider when calculating the amount. (a) must not be clear to a legal certainty that the plaintiff cannot recover more than $75,000. (b) punitive damages are excluded, (c) aggregation of claims is acceptable if a single plaintiff aggregates all his claims, even unrelated, against a single defendant. (c) In joint claims, the total value of the claim is the factor, not the number of parties. (d) In equitable relief, the calculation method is either the plaintiff’s viewpoint, which determines whether the relief has more than $75,000 value to the plaintiff, or the defendant’s point of view, which is based on whether the relief would cost the defendant more than $75,000.

2.1.3   Exclusion 

After determining the parties’ citizenship and calculating the amount in controversy, the court must determine whether the claim is not one of those excluded claims that federal courts cannot hear.

Divorce, alimony, child custody, and probate of an estate are excluded cases. In addition, in collusive creation cases where the diversity of the citizenship jurisdiction is created by sham transactions, the court ignores and excludes them for its SMJ.

2.2 Federal Questions

When the plaintiff’s claim arises under a federal law or where the plaintiff is enforcing a federal right, a federal court has SMJ over the case. The plaintiff must follow the “well-pleaded complaint rule” that requires the claim itself to arise under federal law, regardless of the case materials.

2.3 Supplement Jurisdiction

Supplement jurisdiction is a form of SMJ, but it is under the federal court’s discretionary power to accept or decline. The court would decline if (a) there is a complex state law claim, (b) the state law is predominant, and (c) the grounds for a supplemental jurisdiction are already dismissed.

Supplement jurisdiction gets the claim into a federal court when a claim already in the federal court based on SMJ is asserted, and parties (usually the defendant) assert additional claims in the case.

The requirement of supplement jurisdiction is the “Common Nucleus Test”, which requires that there must be a common nucleus of operative fact between claims. This relationship exists when a claim arises from the same transaction or occurrence as the underlying case. This test is broader than the T/O, which we will discuss later.

2.3.1  Limitation

Where the claim is in the federal court based on diversity citizenship jurisdiction, the plaintiff cannot assert other claims under supplemental jurisdiction unless there are multiple plaintiffs and the claim of one of the plaintiffs cannot meet the amount in controversy.

Note that a plaintiff can always aggregate all his claims, even unrelated ones, against a defendant to meet the amount in controversy. Moreover, defendants and other non-plaintiffs may use supplemental jurisdiction, and this limitation doesn’t apply to them.

This limitation doesn’t apply if the claim is in federal court based on Federal Question jurisdiction.

Note that supplemental jurisdiction is discretionary. Therefore, a federal court can always decline it, and the court usually does so when the state law claim is complex, the state law issue is predominant in the case, or when the claim on which the SMJ is based is dismissed early.

2.4 Removal

The defendant as a right might be able to remove the case from a state trial court to a federal trial court that embraces the state court within the state by filing a notice of removal in the federal court within 30 days of service of process. It doesn’t require a motion or leave. The defendant must state the ground of SMJ in the notice, promptly serve the plaintiff, and file a copy in the state court. To do so, all defendants who have been served must join the removal. Note that a plaintiff cannot remove the case.

The federal court, even with SMJ, can remand the case to the state court, and the state court doesn’t need to have jurisdiction that includes those cases under exclusive jurisdiction of the federal court.

2.4.1 Limitation

In two situations, the defendant cannot remove a case to the federal court based on diversity of citizenship jurisdiction:

(a) the defendant must not be a citizen of the forum court, “in-state defendant rule”, (b) the notice of removal cannot be filed more than one year after the filing.

2.4.2 Remand

By contrast, as a right, the plaintiff might be able to remand the case to state court within 30 days after the notice of removal was filed. If he didn’t, he waived the right to remand; note that a federal court judgment without SMJ is void. The 30-day deadline doesn’t apply when the notice of removal is filed after 30 days of service of process but less than one year, as described under the limitation section above.

3. Applicable laws in the Federal Court

In the federal court, state law is applied in cases based on diversity of citizenship jurisdiction because there is no federal common law.

Under the Erie doctrine, to determine what law applies, the court follows a three-step test:

1. Is there a federal law on point that directly conflicts with the state law? If yes, under the “supremacy clause”, the federal law Federal laws include both procedural and substantive laws, such as the Constitution, the Federal Rules of Evidence (FRE), and the Federal Rules of Civil Procedure (FRCP). Federal laws prevail in disputes in international relationships, admiralty, interstate, and federal rights violations.
2. When there is no federal law on point, the federal court applies the state law in substantive issues without the need for a determination that includes:
   • Conflict of law rules
   • Elements of claims or defense
   • Statute of limitations
   • Tolling the statement of limitation rules
   • New trial rules for inadequate or excessive jury judgment
   • Preclusion in diversity cases
3. When none of the above exists, the federal court must determine if the issue is substantive and then apply the state Factors for the determination are (a) outcome of determination, (b) balance of interest, and (c) avoidance of forum shopping. In common law cases, such as tort, contract, and real property disputes, the federal court only applies the state common law.

4. Venue

To determine which district court is a proper venue for the claim, the plaintiff lays a venue based on either residential or transactional. The residential venue is where all defendants reside, and to determine their residency, the court applies the citizenship determination rule discussed in the PJ section. The transactional venue is where a substantial part of the claim arises, which can be in more than one district in cases such as tort (both where the product was manufactured and the place of injury) or contract (both where the contract formed and the place of performance). In real property cases, the transactional venue is where the substantial part of the property is located.

Note that the plaintiff’s place of residency is not a factor in venue determination, and when the defendant is not a U.S. citizen, any district court has jurisdiction unless a co-defendant is a resident of the U.S.

4.1 Transfer of Venue

Compared to the removal of forum jurisdiction, which is the transfer of a case from one judicial system (state court) to another judicial system (federal court) that embraces the state court, in transfer of venue, the case transfers within the same judicial system, which is the federal courts, and involves a transferor court and transferee court. These courts can be in different states, but both must have personal jurisdiction and be a proper venue. There are exceptions when all parties consent or when the court finds a cause.

4.1.1 Transfer from a proper venue

It can be based on the convenience of the parties or the interest of justice. The burden is on the requesting party, and the court’s determination is based on public and private factors. In this case, the transferee court applies the transferor court’s rules unless there is a valid Forum Selection Clause (FSC), which results in applying the choice of law that was selected. In that case, the defendant must seek to enforce the clause by filing a motion to transfer the venue, and the court would enforce it if it finds it reasonable by considering only the public interest.

4.1.2  Transfer from an improper venue

When the district court is improper, upon the defendant’s request, the court decides to (a) transfer the venue in the interest of justice or (b) dismiss the case. The laws of the transferee court would be applicable if transfers.

4.1.3 Forum Non-Convenience

When there are two different judicial systems, therefore, the transfer of venue is impossible, and another court of a different judicial system is the center of gravity for the case. On motion, the court decides (a) to stay or (b) dismiss the case by considering public and private interest factors, including the existence of an FSC. The court may impose conditions on the requested party if it dismisses the case.

5. Service of Process

The defendant is entitled to reasonably calculated notice to apprise the action. “The process” consists of a summons (a notice of suit and time to respond) and a copy of the complaint.

The requirements of the service are

• The server must be 18 years old and must not be a party to the claim
• Must be served within 90 days of filing the claim
• Any documents other than the process can be mailed or delivered to the lawyer or pro se party and must be given 30 plus 3 days to respond
• Personal service can be anywhere
• Substitute service:
  • may be used even when personal service is doable
  • must be at the defendant’s usual place of abode
  • must be served to someone of suitable age and discretion who resides there
• Method of service determined by the state law
• Service to the agent must be in the scope of the agency
• Service on business can be by delivering to an officer, managing or general agent by any method permitted by the state law
• Service on minors by a method permitted by state law
• Service in a foreign country by a method that is permitted by international agreement, otherwise directed by the court, including mailing by a court clerk, signed receipt, unless prohibited by the foreign country’s law

5.1 Waiver of Service

The waiver is a request by the plaintiff, who must mail the following documents to the defendant and have the defendant agree within 30 days (or 60 days if he is outside the U.S.) and be filed in the court by the plaintiff:

• A copy of the complaint
• Two copies of the waiver form
• A prepaid meaning of return

Agreeing the waiver doesn’t impact defenses, including lack of PJ. If the defendant doesn’t agree, then he must pay the cost of the service.

5.2 Immunity

If the defendant goes to the state to appear as a party, witness, or attorney in a different civil case, he cannot be served.

6. Pleadings

6.1 Complaint

An action commences by filing a complaint by the plaintiff, and it must contain:

• Ground of SMJ
• Claim in a short and plain It must plead sufficient facts to support a plausible claim. The judge determines based on his experience and common sense. The claims must be more detailed when it is about mistakes, fraud, or seeking special damages.
• Demand or relief

The defendant can challenge the complaint by filing a motion to dismiss for failure to state a claim under Rule 12 (b)(6).

6.2 Response

The defendant’s response can be in two ways under Rule 12.

1. Response through filing a Motion, which is one of the following motions; if denied, the defendant must file their answer within 14 days of notice of denial. There is no Reply for the plaintiff:

• Motion for more definite statement under Rule 12 (e) before answering
• Motion to strike the immaterial things under rule 12 (f). The plaintiff can also use this

2. Response through filing an Answer. The defendant must file the answer within 21 days of service of

process; otherwise, it can be noted in default. If there was a waiver of service of process, the defendant has 60 days after mailing the waiver form to answer. In answer the defendant should either

1. Admit
2. Failure to deny results in admission
3. Insufficient knowledge
   • The following defenses must be inserted in the first response; otherwise will result in waiver:
     1. Lack of PJ
     2. Improper venue
     3. Improper process (pleadings documents)
     4. Improper service of process

• The following defenses don’t have the above-mentioned deadline:
  1. Failure to state a claim that is due at trial
  2. Failure to join an indispensable party that is due at trial
  3. Lack of SMJ, which can be raised at any time

• Raising affirmative defenses

It is the injection of new facts by the defendant, including the following most common defenses, and the plaintiff doesn’t need to file a response because it is deemed a denial:

• Statute of Limitations
• Statute of Frauds
• Res Judicata
• Self defense
• Rule 12 (b) defenses

7. Amended Pleadings

• Right to amend. Can be used to fix waivable defenses By the plaintiff, one time, and that is 21 days after being served by the answer or a motion. By the defendant, also one time, and that is 21 days after serving the answer.
• Leave to amend. Can be used after the expiry of the right to The requesting party must seek leave of court unless they obtain the opposing party’s written consent. The court decides based on justice as required
• Variance. When evidence at the trial doesn’t match what was pleaded and the opposing party fails to object at the trial, the party introducing evidence can move to amend the complaint to confirm the
• Relation It is the way to void the statute of limitations by amending the pleading after the statute has run in cases to
• join a claim if T/O met (arises from the same transaction or occurrence), and
• change the wrong defendant with the correct defendant if T/O met, the defendant knew the case, the defendant knew or must have known he would have been named originally within 90 days of filing the complaint (end of service of process)

8.Supplemental pleadings Motion

It is not right, and there must be a motion, and the court has discretion.

9. Rule 11 Signature Requirement

It applies to all papers except discovery, and there is a continuing certification requirement. It has to be done by the lawyer or pro se party, who certifies the paper to the best of their knowledge and belief after reasonable inquiry:

1. It is not for an improper purpose
2. It has a legal basis (warranted by law)
3. It has factual, evidentiary support

An opposing party can raise the requirement or the court itself (sua sponte). The opposing party must serve the request and wait for 21 days, then file with the court seeking monetary payments or non-monetary orders. After giving the lawyer, law firm, or party the opportunity to be heard, and a safe harbour of 21 days to fix the issue, the court can issue a sanction against them. The purpose of the sanction is to deter.

10. Joinder

10.1 Claim joinder by the plaintiff. There must be SMJ over each claim, but they can be unrelated.

10.2 Joinder of Multiple plaintiffs or defendants. There are two requirements:

• • Their claims must meet T/O
  • Claims must have at least one common question of law or fact

10.3  Joinder of an Indispensable party (necessary party)

On motion, usually by the defendant after the claim is filed, to force a nonparty who called an absentee to join if:

• It is necessary, then it is required to join because
  1. Cannot be complete relief without him
  2. His interest may be harmed if not joined
  3. There is a risk of multiple obligations to him
• It is feasible, then he can be joined if
  1. There is a PJ over him ( if served with the US and not more than 100 miles from the summons was issued, regardless of the minimum contact with the forum, and for distances beyond, then the minimum contact requirements apply)
  2. There is SMJ over the claim against or by him
• If the absentee cannot be joined, then the court determines to
  1. proceed without him based on the alternative forum, the likelihood of harm to him, and a way to avoid the harm
  2. dismiss (the absentee called indispensable in this

If a nonparty wants to join a claim by itself, it is called intervention.

10.4 Claim Joinder by Defendant

10-4-1 Counterclaim of the defendant against the plaintiff

• • It is a part of the defendant’s answer
  • Any claim back to the P
  • P must respond within 21 days of service of the counterclaim
  • There are two types:
    1. Compulsory counterclaim. That arises from the same T/O, and must be made as a part of the

defendant’s answer; otherwise, it would be considered waived. Note that if the plaintiff files a motion to dismiss the claim, he can still file his claim in a separate case and is not barred from suing the P.

2. Permissive counterclaim. That doesn’t arise from the same T/O and can be filed

• There must always be SMJ over the counterclaim, either through diversity or FQ, or supplemental jurisdiction [common nucleus test]

10.4.2 Crossclaims by the defendant against a co-defendant

• It is the claim of the defendant against the co-party
• It must arise from the same T/O
• It is not compulsory
• There must always be SMJ over the crossclaims, either through diversity or FQ, or supplemental jurisdiction
• If the co-party sues the defendant, it is a counterclaim

10.5 Claim Joinder by defendant against third party (Impleader)

• It is the claim of the defendant against a new party defendant (TPD) or an impleaded party to shift his liability either in full (because of identification) or pro rata ( because of contribution) to
• It must be done by filing a 3rd party complaint by the TPP (third-party plaintiff) and formally serving either as a right (within 14 days of serving the answer), or later by leave to the court (court permission).
• It is permissive
• TPD and the plaintiff may assert a counterclaim against the defendant
• The court must have SMJ or Supplemental Jurisdiction over the claim
• The limitation of supplemental jurisdiction does not restrict TPD in his counterclaim as the plaintiff, whereas generally in diversity citizenship jurisdiction, the plaintiff cannot assert other claims under supplemental

jurisdiction unless there are multiple plaintiffs and the claim of one of the plaintiffs cannot meet the amount in controversy

• Like an absent party, there is a PJ over an impleaded party under the 100-mile rule if he is served in a district in the S. and not more than 100 miles from the federal court that issued the summons regardless of his

contact with the forum, and under the traditional minimum contact rule for more than 100 miles. [loophole for PJ]

10.6 Claim Joinder by Absentee (Intervention)

• It is a claim by a non-party absentee to bring himself into the case for either defending (becoming a defendant) or claiming (becoming a plaintiff)
• It can be done as a right if he is a necessary party when his interest may be harmed, and the party does not adequately represent his interest
• It is permissive
• There must be at least one common question of law or fact
• It is under the court’s discretion based on the prejudice factor or the delay factors
• The court must have SMJ or supplemental jurisdiction
• The limitation of supplemental jurisdiction for plaintiff claims doesn’t apply here

10.7 Claim joinder by a stakeholder (Interpleader)

• It is a claim by a person or the stakeholder (for example, an insurance company) that requires two or more adverse claimants (for example, beneficiaries) to litigate among themselves to determine whose has a valid claim to the stake, when separate claims result in double liability against the
• There are two interpleader procedures in the federal court:
• a: Rule 22 Interpleader: it requires the court to have SMJ over the claim, and normal service and venue rules apply:
  1. Complete diversity between the stakeholder and all adverse claimants, and the amount in controversy exceeds $75,000, or
  2. A federal question claim
• b. Section 1335 Interpleader (statutory interpleader): it requires

1. 1. Diversity between any two contending claimants (that include the stakeholder who has an interest in the stake)
   2. $500 in issue
   3. Venue is proper where any claimant resides, and service may be nationwide
   4. This option is not available if the stakeholder is disinterested, and all the claimants are from the same state

11. Class Action

• It is a class representative’s claim on behalf of a group against a defendant
• For SMJ under the diversity jurisdiction, the citizenship of the class representative, and the amount of controversy in his claim are the factors.
• There are four requirements (NCTA):
  1. Numerosity (there must be too many class members)
  2. Commonality (there must be some issues in common)
  3. Typicality (the rep’s claims are typical of the class member claims)
  4. Adequately (the rep fairly and adequately represents the class)
• The procedure is that the first must file a motion to the court to certify the The certification includes (a) defining the class/claim/issue/defenses, and (b) appointing a class counsel. The denial can be appealed in the Court of Appeals.
• There are three types of class actions:
  1. Prejudice: that is necessary to avoid harm (prejudice) to class members or non-class
  2. Injunctive or Declaratory Relief: that is, when the defendants treated the class members

This type of class action cannot seek damages

1. Common Question or damages: there must be (1) common questions that must predominate over individual questions, and (2) the class action is a superior method to handle the This type is frequently used for mass tort claims.

• Notice to class members is required for only type C, which must be done through individual notices by mail, which the rep pays to all reasonably identifiable class members, and must include the opt-out. If the member doesn’t opt out, he will be bound by the He can have a separate lawyer.
• Settlement in all three types requires notice of settlement and court The court approves only after giving a second chance to opt out. Voluntary dismissal also needs court approval.

11.1 Class Action Fairness Act (CAFA)

• Giving the FC SMJ on particular grounds when
  1. There are 100 members and more
  2. There is a complete diversity between any class member (not the rep) and any defendant
  3. The aggregated amount in controversy exceeds $5 million (not exceeding $75,000 of the rep claim)
• Unlike the general rule, even an in-state defendant can “Remove” the claim to the FC unless for local classes in which the FC remands it to the state court.

12.Discovery

12.1 Initial required

• There is a duty to disclose and supplement or self-policin
• Without a request within 14 days of Rule 26 (f) Conference, failing to disclose results in excluding the evidence by applying the harmless test.
• Each party must disclose certain information :
  • Identities of people with discoverable information that the party wants to use
  • Documents and tangible evidence, including The copies or a description of the documents that are in the party’s control and custody can be produced
  • Computation of the amount sought, supported by the documents, if seeking monetary relief
  • Insurance coverage (although it is inadmissible at the trial)

12.2 Disclosure of Expert Witness

• The party must identify EW who may provide testimony at the It is different from a “consulting expert”, which is not discoverable unless under exceptional circumstances
• The party must disclose the identity and the written report of the EW that includes
  • The expert opinion
  • The bases
  • The fact used
  • The expert’s qualification
  • The expert’s fees
• The expert’s earlier drafts are “work product” and not discoverable
• The party can take the deposition of the EW by subpoena, and the requesting party must pay the costs
• Failure to disclose results in inability to use the EW in the case unless the failure was harmless or

12.3 Pretrial disclosure

The parties must disclose not later than 30 days before the trial the evidence that they intend to introduce in the trial. They must give detailed information about their evidence for the trial.

12.4 Discovery tools

• A party may request information after the initial disclosure.
• A party cannot send a discovery request to another party until after the Rule 26 (f) Conference, except that requests to produce can be made earlier, which is 21 days after service of the
• Generally, the responding party pays for the cost of
• Parties sign their answers to the discovery under oath, although Rule 11 doesn’t apply to the discovery documents, every discovery request and response is signed by counsel certifying that it is:
  • Warranted
  • Not interposed for an improper purpose
  • Not unduly burdensome

12.4.1 Depositions

• Giving live testimony under oath by parties and non-parties (so both can be deposed)
• The testimony will be recorded so that it can be transcribed
• The limitation is 10 for each party, twice for the same person, and seven in one day unless court orders or the parties’ consent
• It must be from present recollection, so the deponent cannot review her record
• It can be done through giving notice to the parties, and a subpoena to a non-party that the 100-mile distance limitation applies unless the non-party agrees to travel
• If the deponent is required to bring material, he must be served by Subpoena Duces Tecum.
• For organizations, the organization must designates a person(s) to testify the matter that is described in the notice
• Use of depositions at the trial is
  • To impeach the deponent
  • For any purpose when the deponent is an adverse party
  • For any purpose when the deponent is unavailable for trial, unless the absence was procured by the party seeking to introduce the testimony

12.4.2 Interrogation

• They are written questions that must be answered under oath only by a party to the claim within 30 days based on reasonable available information
• The limitation is 25 interrogations, including subparts
• The party can allow the requesting party to have access to the business record instead of finding answers if it has the same burden
• In addition to inquiring about the facts, asking about the party’s legal contention in the case is permitted

12.4.3 Request to produce

• It is a request to produce from a party (a) to review and copy documents and tangible materials, as well as (b) a permit to enter a property and inspect or measure.
• The request to produce can be served only for the From a non-party, there must be a subpoena to disclose the information
• The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.
• Request for medical examination of mental or physical of a party (or person in their custody or control – in narrow scope not including employees) requires a court The requesting party must show to the court that (a) the person’s health is in actual controversy, and (b) Good cause.

• The requesting party chooses the examiner (a licensed medical professional) professional) to do the examination
• The examiner will provide a written report to the requesting party
• The undergoing party can request a copy of the report, but must then produce all medical reports

from her own doctor about the same health condition, and she waives the doctor-patient privilege in that matter.

12.4.4 Request for admission

• It is a written request that is usually used for the authentication of documents
• The receiving party must answer the request within 30 days of service; otherwise, it is deemed The answer can be:

• Denying it specifically
• Objections
• Doesn’t know after reasonable inquiries

12.5 Scope of Discovery

• Anything relevant and proportional, even inadmissible at trial, such as hearsay, even if they are against
• The court can order production only if the requesting party shows good cause, and the court allocates the expenses between the parties when producing is an undue burden or very
• A party can object to discovery based on evidentiary privilege, such as client-attorney privilege
• Work product protection: The trial preparation material in anticipation of litigation is
  • Qualified work product: such as a witness statement to a PI is discoverable if a party shows substantial need, and undue hardship in obtaining it in an alternative way
  • Absolute work product: absolutely protected and cannot be discovered. Opinion work product is protected and consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party.
• A party’s prior statement regarding the case is discoverable
• The party objecting must assert the privilege by a privilege log, which is a list of protected material, expressly claim the protection and describe the material in detail.
• If a party inadvertently produces the privileged material, she must promptly notify the other party, and the other party must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

12.6 Enforcement of discovery rules

• There are three ways courts get involved in discovery disputes:
  • Seeking a protective order by the responding She must certify that she tries in good faith to resolve the issue without court involvement (try to meet and confer). The court decides to deny, limit, or permit discovery on specified terms.
  • Seeking Compelling order plus cost, including attorney’s fee for motion to compel the responding party to answer all questions when she does not fully If she violates the order, the court can enter “merits” sanctions with costs. The party can be held in contempt except for refusing to submit to a medical exam.
  • Seeking merits sanction plus costs when the responding party doesn’t respond or The party must certify that she tried to meet and confer:
    1. Establishment order (establishes facts as true)
    2. Strike pleadings
    3. Disallow evidence
    4. Dismiss the case if bad faith is shown
    5. Default judgment if bad faith is shown

• Order measures to cure the harm caused by the other party because of failing to take reasonable steps to preserve discoverable information when litigation is reasonably
• Adverse influence order is an order to the jury that must presume that the lost information would be unfavorable to the party that lost the If the loss intentionally deprives the party of the ESI, the

court can enter merits sanctions.

13. Adjudication without trial

13.1 Preliminary Injunctive Relief

• A preliminary injunction is to maintain the status quo until the court can adjudicate the case on the merits
• It is in the court’s discretion, and not right to it
• It requires the other party to do something or refrain from doing something (such as enjoining the defendant from using a trade secret) to prevent prejudice
• It requires a hearing and cannot be issued ex parte
• The applicant must show
  1. She is likely to suffer irreparable harm without it
  2. She is likely to win on the merits
  3. The balance of hardship favors her
  4. The injunction is in the public interest
• The applicant must post a bond
• The injunction must state its terms in specificity and in detail, and why it was issued
• The court must make specific findings of fact and a separate conclusion of law
• The applicant may seek a TRO before the preliminary injunction hearing
• The court decision can be appealed as of right

13.2  Temporary Restraining Order

• It is an order that maintains the status quo until the hearing of PIR
• It may be issued “ex parte” without giving notice to the other party
• The requirements are
  1. The applicant certifies (under oath) that she will suffer immediate and irreparable harm if she wait until PIR hearing
  2. The applicant’s lawyer certifies in writing her effort to give oral or written notice to the other party, or why it is not required
  3. The applicant must post a bond
  4. The TRO must be served on the defendant as soon as possible
  5. The court decision is not appealable
  6. A TRO must state its terms specifically, describe in detail, and why it was issued, and why the harm is irreparable
• A TRO is effective for no more than 14 days, and the other party can move to dissolve or modify it It can be extended to another 14 days if the applicant shows good cause. It cannot be extended beyond 28 days; otherwise, it will be treated like a PIJ.

13.3 Voluntary Dismissal

• Dismissal without court permission: when the plaintiff withdraws the case before the defendant serves an answer or files a motion for summary judgment.
• Stipulated dismissal: when parties stipulate a voluntary dismissal without a court order
• Dismissal with the court’s permission: When the plaintiff wants to withdraw the case in any situation other than the two above, she must file a motion, and it is at the court’s discretion.
• First voluntary dismissal is “without prejudice”. The second one is “with prejudice”, so the plaintiff cannot refile the case.

13.4 Default and Motion for Default Judgment

• When the defendant doesn’t respond (answer or motion) to the complaint in time (21-day deadline from the service of process or 14 days after the denial of his motion)
• Default: The court clerk notates the default on the docket sheet in the case upon the plaintiff’s motion for entry of Until then, the defendant can respond even beyond 21 days. The notation cuts off the defendant’s right to respond, and then the plaintiff must seek a default judgment.
• Default judgment by the clerk of the court: if

1. The defendant has made no response at all (she has not appeared)
2. The claim is for a sum certain in money
3. The plaintiff gives an affidavit of the sum owed
4. The defendant is not a minor or incompetent

• Other than the above situation, the plaintiff must seek a default judgment from the The judge will hold a hearing and has discretion. The defendant is entitled to notice of the hearing if she has appeared in some fashion in the case. The relief is limited to the amount pleaded in the complaints, and cannot be more or for example, an injunction, unlike the trial.

• Motion to set aside default or default judgment: by the defendant if it shows (1) good cause, (2) a viable

13.5 Motion to dismiss for failure to state a claim – FRCP 12(B)(6)

• It tests whether the case belongs in the litigation stream at
• If the motion is made after the defendant has answered, it is called a motion for judgment on the pleadings.
• The judge only looks at the plaintiff’s allegation of the facts on the face of the complaint, regardless of any evidence or the plaintiff’s legal conclusion.
• Test: If these facts are true, do they state a plausible claim?
• The judge uses his experience and common sense to The judge might allow the plaintiff to amend the complaint.

13.6 Motion for Summary Judgment – FRCP 56

• Timing: after the plaintiff has survived any Rule 12 No later than 30 days after the close of discovery.
• Test: no trial is necessary because there is no dispute of material fact
• Standard: the moving party must show that (a) there is no genuine dispute of material fact, (b) she is entitled to judgment as a matter of
• The court has discretion, and a denial can be appealed under “abuse of discretion” standard
• Partial summary judgment or summary adjudication: The motion can be for “partial judgment”, so that the case can go to the trial for other matters.
• The court looks at evidence or answers under oath (affidavits, declarations, depositions, interrogatories) in the most favorable light to the nonmoving party.
• The court may delay ruling on the motion to allow the opposing party to gather evidence. She may file an affidavit or declaration with the court to state what that evidence would
• Pleadings are not evidence, because they are not usually under oath, so if plaintiff doesn’t support his claim with evidence and the defendant deny it and provide supporting evidence, the defendant can move for summary judgment.

• Pleading can be treated as evidence when the defendant fails to deny the allegation [verified pleading]
• If the plaintiff provides even biased or impeachable testimonial evidence, there is a dispute of material fact, so no summary judgment.
• The judge doesn’t assess the witness’s credibility on a summary judgment motion, but can grant summary judgment when an authenticated videotape of the accident discredits the plaintiff’s

14. Judicial Management

• Rule 26(f) Conference
• Timing: it is before discovery, and at least 21 days before the court’s scheduling order (is a road map that sets cut-offs for joinder, motions, and completion of discovery)
• Parties must meet and confer to discuss everything, including settlement
• Parties must present a detailed discovery plan no later than 14 days after the conference
• A party cannot send a discovery request to another party until after the Rule 26 (f) Conference, except that requests to produce can be made earlier, which is 21 days after service of the
• The court can hold a Pretrial conference to oversee the case and avoid surprise at the trial (issue and evidence determination through the pretrial conference order that supersedes the pleadings)

15. Jury Trial

• A Jury determines the facts and returns the verdict
• In a bench trial, a judge The judge must record her findings of fact orally on the record or in writing, along with her conclusion of law separately. A judgment also must be entered and usually is short.
• A motion in limine is a pretrial motion to decide if the jury should hear certain evidence
• Right to jury trial in FC protected in 7th Limited to civil actions at law (not at equity), and for mix

suits, the facts underlying the legal relief will be tried by jury first, and the judge will try those related to equity. If the same fact underlies both legal and equity claims, the jury decides it.

• A jury demand must be in writing no later than 14 days after service of the last pleading (the answer); otherwise, it would be waived
• Voir Dire is a jury selection process, and there are two types of challenges to jurors:
  • For cause – for example, Unlimited numbers
  • Peremptory – no reason, but cannot be race or gender discrimination due to violation of the equal protection clause. Limited to 3 on each side
• The number of jurors in FC civil cases is a minimum of 6, and a maximum of 12 unless parties agree otherwise, and the verdict must be unanimous among all jurors (except excused jurors) unless parties agree otherwise
• The jury is instructed on the law by the judge based on the submitted proposed jury instructions by the

The judge may hold an “off the record” conference with the parties to discuss the matter. The judge, before giving the instruction, informs “on the record” the parties what instruction it will be. The party may object before the jury is charged (given the instruction); otherwise, it will be waived. The appeal is a clear error

standard.

• The judge will determine the form of verdicts:
  • General Verdict (who wins and what is the relief),
  • Special Verdict (doesn’t say who wins, and only answers specific written questions).
  • General Verdict with written questions (both of the above)
• Entry of Judgment: by the court In a General Verdict with written questions, the judge must approve it first.
  • If the judge finds the answers are consistent with each other but inconsistent with the verdict, the court may enter an appropriate judgment.
  • If the judge finds the answers are inconsistent with each other and the verdict, no judgment can be entered, and the judge can order the jury to reconsider or a new
• Juror misconduct is a ground for impeachment of a verdict based on external matters and results in a new trial unless the misconduct was

16. Motions at and after trial

• JMOL – Motion for Judgment as a Matter of Law (Direct Verdict)

• It applies in jury trials
• If granted, the case will no go to the jury, and judge will enter the judgment based on evidence presented at trial.
• The standard is that reasonable people could not disagree with the Similar to the summary judgment motion, but it is at the trial.
• Timing: Any time before the case is submitted to the jury, the court may not grant it until it hears the opposing party at the trial.

16.2  RJMOL – Renewed Motion for Judgment as a Matter of Law

• It comes after the trial
• If granted, the court enters judgment for the party that lost the jury
• Same standard as JMOL
• Timing: within 28 days after entry of judgment, but JMOL is a prerequisite, and has to be on the same

16.3 Motion for New Trial

• Less drastic remedy than JMOL
• Due to some non-harmless errors at trial, including
  • Error in jury instruction
  • Discovery of new evidence
  • Misconduct of a juror, party, lawyer,…
  • Serious error of judgment
  • Inadequate or excessive damages by the jury’s figure (court offers remittitur – to remit it – to the plaintiff or additur – to add to it – to the defendant – to avoid a new trial – standard is “shock the conscience”). Additur is not allowed in FC
• Timing: 28 days of judgment

16.4 Offer of Judgment:

• A formal offer from the defendant to settle the case
• Up to 14 days before trial
• It is a cost-shifting provision for the litigation costs
• If the plaintiff accepts, the court will enter the judgment for the amount

16.5  Motion for Relief from order or Judgment

• For reasons after the end of the window for a new trial motion
• If granted, the court will set aside the judgment and can hold a new trial
• For the following grounds:
  1. Clerical error – any time
  2. Mistake or excusable neglect, including a viable defense in a default judgment – not more than 1 year
  3. Fraud, misrep, misconduct – not more than 1 year
  4. Newly discovered evidence (after 28 days deadline for a new trial) – not more than 1 year
  5. Void judgment Lack of SMJ – any time

17.Appellate Review

• The US Court of Appeals can review the judgment or order of the district courts for the appropriate circuit
• The right to appeal if there is a final judgment (merits of the entire case), not for interlocutory orders (the case will continue after)
• The notice of appeal must be filed with the district court within 30 days after the entry of the judgment
• Remand orders are not reviewable on appeal
• Granting the motion for a new trial is not final, but a denial is final and appealable
• Denial of a motion for summary judgment is not final and not appealable
• Interlocutory Appeals: nor final orders can be appealed under one of the following doctrines:

1. Interlocutory Appeals of Injunctions as a right: not for TRO
2. Interlocutory Appeals Act: if
3. 1. The district judge certifies the issue of law
   2. There is a substantial ground for differences of opinion
   3. The Court of Appeals agrees to hear it
4. Collateral Order Doctrine: under the court’s discretion if
   1. The issue is distinct from the case’s merit, ex, deciding on the 11thAmendment
   2. Involves an important legal question
   3. The issue is essentially unreviewable if parties wait

• Multiple Claims and parties: a final judgment as to one of them – must be expressly directed and when there is no just reason for Ex, a partial summary judgment for the counterclaim if the court expressly direct entry of a final judgment
• Class Action Certification within 14 days of the order – doesn’t stay the proceeding unless the court says
• Extraordinary Writ – it is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order – standard is a clear violation of legal duty

Standard of review:

1. De novo Standard: review of questions of law in the decision ex jury instruction
2. Clear erroneous standard: review of the questions of fact in a bench trial judgment (where the judge determines the facts)
3. Reasonable people could not have made that finding standard: review of the questions of fact in a jury trial judgment
4. Abuse of discretion standard: the decision must be not “in the ballpark” – review of discretionary matters, Ex, motion to amend the pleading, or decision to give a particular jury instruction
5. Harmless Error standard

18. Claim Preclusion (RES JUDICATA) and Issue Preclusion (COLLATERAL ESTOPPEL)

• If cases 1 and 2 are in different judicial systems, the court in case 2 applies the preclusion law of the judicial system that decided case 1 to determine if there is claim or issue
• Requirements for Claim Preclusion:
  1. The claim was litigated before
  2. Valid, final judgment on the merits, unless the judgment in case 1 was without prejudice, or the court decided to dismiss the case because of lack of PJ or SMJ, improper venue, or failure to join an indispensable party.
  3. Must both be the same claim (T/O under the majority view, primary rights doctrine / single event is not the factor under the minority view)
• Requirements for issue preclusion:
  1. The issue was litigated before
  2. Valid, Final Judgment on the merits in case 1
  3. The issue was actually litigated and determined in case 1
  4. The issue was essential to the judgment in case 1
  5. The issue preclusion can be used only against a party or in privity with a party (ex, a class rep) to case 1 because of Due Process [against whom]
  6. The issue preclusion can be used by a party or in privity with a party of case 1 [by whom] under Mutuality Rules.
• Nonmutual issue preclusion: use the issue preclusion by someone who was no in privity in case 1
• Nonmutual defensive: the user is a defendant in case 2 – it is okay
• Nonmutual offensive: the user is the plaintiff in case 2 – must meet the fairness factors:
  1. The party had a full and fair opportunity in case 1
  2. The party had a strong incentive to litigate case 1
  3. The user could have easily joined case 1
  4. There must be no inconsistent findings on the issue in case 1

Source: https://ylgpc.ca/article/2117/a-summary-of-civil-procedure-in-practice/