Complete subject outline

Civil Procedure outline for the bar exam

This outline walks Civil Procedure in the order a federal case unfolds, from whether the court has power to hear it through pleading, joinder, discovery, trial and the effect of the judgment. Each module lists the propositions to memorize, a step-by-step attack sequence, the exceptions examiners like to test and a short worked application. The MBE asks 25 scored questions on the subject, and MEE essays use it whenever the facts raise a jurisdiction, procedure or preclusion problem. Reread it once you already know the basics and want one continuous pass through the whole subject rather than one rule at a time. A single fact pattern often raises jurisdiction, then venue, then a joinder problem in sequence, so practice spotting all three before answering. Keep the Federal Rules numbers beside each rule as you reread.

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Civil Procedure outline coverage by unit
Unit	Modules	Propositions
Federal judicial power	3	13
Removal	1	5
Personal jurisdiction	1	5
Notice and location	1	5
Governing law	1	4
Pleadings	2	9
Parties and claims	2	14
Aggregate litigation	1	4
Discovery	2	17
Adjudication	1	5
Trial and review	1	5
Pretrial relief	1	8
Motions	1	7
Judgments	1	12
Trial	1	12
Appeals	1	10
Jurisdiction and venue	2	20
Pretrial procedures	1	10
Dispositive motions	1	10

01 · Federal judicial power

Federal-question jurisdiction

Federal-question jurisdiction exists when federal law creates the claim or a necessarily raised, actually disputed, substantial federal issue may be resolved in federal court without disturbing the federal-state balance.

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Black-letter propositions

Apply the well-pleaded-complaint rule; ignore anticipated defenses and federal counterclaims.
A federal ingredient must appear in the plaintiff's properly pleaded claim.
Declaratory-judgment actions are analyzed by asking whether the coercive action would arise under federal law.
A private federal cause of action usually suffices; an embedded issue requires the narrower substantial-federal-question test.

Attack sequence

1Is federal law an element of the claim?

2Is the issue substantial to the federal system, not merely important to the parties?

3Would federal jurisdiction upset the congressionally approved division of labor?

Traps and exceptions

!A federal defense never supplies ordinary federal-question jurisdiction.

!A complaint cannot manufacture jurisdiction by artful reference to federal law.

WORKED APPLICATION

A patient sues a drug manufacturer under state negligence law and alleges that violation of a federal labeling rule proves breach. The federal statute creates no private action.

The federal rule may be evidence of breach, but that alone does not necessarily create federal-question jurisdiction. Analyze whether the federal issue is necessarily raised, disputed, systemically substantial, and consistent with the federal-state balance.

Essay-ready formulationA federal court has federal-question jurisdiction only when a federal issue appears on the face of the well-pleaded complaint and satisfies the federal cause-of-action or embedded-federal-issue route.

02 · Federal judicial power

Diversity and alienage jurisdiction

Diversity jurisdiction requires complete diversity at filing and an amount in controversy exceeding $75,000, exclusive of interest and costs.

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Black-letter propositions

A natural person is a citizen of the one state of domicile: physical presence plus intent to remain indefinitely.
A corporation is a citizen of every state of incorporation and its one principal place of business, ordinarily its nerve center.
An unincorporated association takes the citizenship of every member.
A legal representative generally takes the citizenship of the represented decedent, infant, or incompetent.
Good-faith aggregation is permitted for one plaintiff against one defendant, but separate plaintiffs generally cannot aggregate separate claims.

Attack sequence

1Identify every party and every citizenship at filing.

2Confirm no plaintiff shares citizenship with any defendant.

3Calculate whether the pleaded amount legally could exceed $75,000.

Traps and exceptions

!Residence is not domicile.

!A later change of citizenship does not cure or destroy diversity that existed at filing.

!Supplemental jurisdiction cannot evade complete diversity for claims by plaintiffs against certain joined parties.

WORKED APPLICATION

A State A citizen sues a partnership for $90,000. One of the partnership's 40 partners is also a State A citizen.

Complete diversity is absent because the partnership has the citizenship of every partner, including State A. The number or managerial role of the members does not change the rule.

Essay-ready formulationDiversity requires complete diversity measured at filing and a good-faith amount in controversy exceeding $75,000.

03 · Federal judicial power

Supplemental jurisdiction

A federal court may hear an additional claim forming part of the same Article III case or controversy, subject to statutory exclusions and discretion to decline.

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Black-letter propositions

Claims share a constitutional case when they derive from a common nucleus of operative fact.
In diversity-only cases, section 1367(b) restricts specified claims by plaintiffs against parties joined under Rules 14, 19, 20, or 24 and claims by certain proposed plaintiffs.
The court may decline when the state claim is novel or complex, substantially predominates, all federal claims are dismissed, or exceptional circumstances provide compelling reasons.
A qualifying claim may enter even if it does not independently satisfy the amount in controversy.

Attack sequence

1Find an original jurisdiction anchor.

2Test common nucleus.

3If diversity is the sole anchor, apply the plaintiff-side statutory exclusions.

4Consider discretionary decline only after power exists.

Traps and exceptions

!Supplemental jurisdiction never creates original jurisdiction from nothing.

!Do not apply the diversity limitation to federal-question cases or to ordinary defendant claims without checking its text.

WORKED APPLICATION

A diverse plaintiff brings a $100,000 claim against one defendant and a related $20,000 claim against a second diverse defendant joined under Rule 20.

If complete diversity remains, the smaller related claim may fall within the same case, but a plaintiff's Rule 20 claim in a diversity-only action is within the statutory limitation; determine whether it independently meets diversity requirements.

Essay-ready formulationSupplemental jurisdiction covers claims within the same Article III case, but diversity-only plaintiff claims listed in section 1367(b) remain restricted.

04 · Removal

Removal, remand, and the forum-defendant rule

A defendant may remove a civil action that could have been filed in federal court, subject to statutory procedure, unanimity, timing, and the forum-defendant limitation in diversity cases.

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Black-letter propositions

Only defendants may remove; all properly joined and served defendants ordinarily must consent.
Removal goes to the federal district embracing the state court.
The notice generally must be filed within 30 days after service or receipt of a removable pleading.
A diversity action ordinarily may not be removed if a properly joined and served defendant is a citizen of the forum state.
A motion to remand a procedural defect must be made within 30 days; lack of subject-matter jurisdiction may be raised later.

Attack sequence

1Could the case originally have been filed federally?

2Who seeks removal and have all served defendants consented?

3Check forum citizenship, deadlines, and destination.

4Classify the remand objection as procedural or jurisdictional.

Traps and exceptions

!The forum-defendant rule is not the same as lack of diversity jurisdiction.

!A plaintiff cannot remove a counterclaim-based case under the ordinary removal statute.

WORKED APPLICATION

A State B defendant removes a diversity action from State B court on day 20. Complete diversity and the amount requirement are satisfied.

The federal court has diversity power, but removal violates the forum-defendant rule because a properly joined and served defendant is a citizen of State B. A timely remand motion should be granted for that procedural defect.

Essay-ready formulationA removable case must satisfy original federal jurisdiction and every applicable removal procedure, including the diversity forum-defendant rule.

05 · Personal jurisdiction

General and specific personal jurisdiction

Personal jurisdiction requires statutory authorization and due process; general jurisdiction permits all claims where the defendant is at home, while specific jurisdiction requires purposeful forum contact and a claim arising out of or relating to that contact.

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Black-letter propositions

Individuals are ordinarily at home where domiciled; corporations where incorporated and headquartered, absent an exceptional home-like forum.
Purposeful availment governs deliberate forum benefits; purposeful direction often governs intentional conduct aimed at the forum.
The defendant's own contacts matter, not unilateral activity of the plaintiff or a third person.
After minimum contacts and relatedness, assess fairness factors.
Consent, waiver, domicile, and qualifying in-state service are independent traditional bases.

Attack sequence

1Find the forum statute.

2Test consent, waiver, domicile, or service.

3Choose general or specific jurisdiction.

4For specific jurisdiction: purposeful contact, relatedness, fairness.

5Check notice and service separately.

Traps and exceptions

!Foreseeability that a product might wander into a state is not purposeful contact.

!An internet site does not create jurisdiction everywhere it can be viewed.

!Property in the forum is not an automatic substitute for minimum contacts.

WORKED APPLICATION

A small retailer sells only in State A. A tourist buys a product there, carries it home to State B, and is injured. The retailer has no State B advertising or sales.

The tourist's unilateral movement of the product is not the retailer's purposeful contact with State B. Specific jurisdiction is unlikely even though injury there was foreseeable in a colloquial sense.

Essay-ready formulationSpecific jurisdiction requires the defendant's purposeful forum contact, a claim arising out of or relating to it, and a reasonable exercise of authority.

06 · Notice and location

Service of process, venue, transfer, and forum non conveniens

A federal action requires constitutionally adequate notice and rule-compliant service; venue must satisfy the federal venue statute, after which transfer rules determine whether litigation should move.

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Black-letter propositions

Service commonly follows Rule 4 or a method permitted by the state where the district court sits or service occurs.
An individual may be served personally, at a dwelling with a suitable resident, through an authorized agent, or by incorporated state methods.
Venue usually lies where any defendant resides if all defendants reside in one state, or where a substantial part of events or property is located.
A proper-venue transfer under section 1404 applies convenience and justice and usually carries the transferor's choice-of-law rules.
An improper-venue transfer under section 1406 cures the defect; forum non conveniens dismisses when the adequate alternative forum is a foreign or nonfederal tribunal.

Attack sequence

1Separate notice, service, personal jurisdiction, and venue.

2Identify every statutory venue route.

3Decide whether original venue is proper.

4Choose transfer or dismissal and state the choice-of-law consequence.

Traps and exceptions

!Actual notice does not automatically cure defective service.

!A plaintiff's residence does not itself create venue.

!A contractual forum-selection clause changes the transfer analysis and ordinarily receives controlling weight absent extraordinary reasons.

WORKED APPLICATION

A contract was negotiated and breached in District X. The defendant resides in District Y in the same state. The plaintiff files in District X.

Venue is proper in District X because a substantial part of the events occurred there, even if the defendant resides elsewhere. Any move would therefore proceed under the proper-venue transfer statute.

Essay-ready formulationFederal venue focuses on defendants and substantial events; transfer doctrine then addresses convenience, justice, and any valid forum-selection clause.

07 · Governing law

Erie, federal common law, and conflicts

A federal court exercising diversity or supplemental jurisdiction applies federal procedural law and the forum state's substantive law, including its choice-of-law rules.

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Black-letter propositions

A valid federal constitutional provision, statute, or Federal Rule on point controls if it is valid and directly conflicts with state law.
Without controlling federal law, consider outcome effect, discouraging forum shopping, avoiding inequitable administration, and countervailing federal interests.
State statutes of limitations, claim elements, burdens tied to substance, and choice-of-law rules are ordinarily substantive.
Judge-made federal common law is limited to enclaves of uniquely federal interest.

Attack sequence

1Identify the source of federal authority.

2Ask whether federal and state rules directly collide.

3If no collision, perform the modified outcome-determinative analysis.

4State the chosen law and why.

Traps and exceptions

!The label procedural or substantive is a conclusion, not the analysis.

!A federal court does not create general federal common law.

!A transfer ordinarily preserves the transferor state's choice-of-law rules, but an enforced forum-selection clause can alter that consequence.

WORKED APPLICATION

A diversity case is timely under a federal judge-made practice but barred by the forum state's limitations statute.

The state limitations rule ordinarily applies because limitations can determine the result, drive forum shopping, and produce inequitable administration; no valid conflicting Federal Rule has been identified.

Essay-ready formulationUnder Erie, valid controlling federal law governs procedure; otherwise the federal court applies forum-state substantive law and its conflicts rules.

08 · Pleadings

Complaints, answers, plausibility, and Rule 11

Federal pleadings require jurisdiction, a short and plain plausible claim, and requested relief; responsive pleadings must admit, deny, or state insufficient knowledge, while Rule 11 polices improper purpose and unsupported contentions.

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Black-letter propositions

Courts disregard legal conclusions and ask whether remaining factual allegations plausibly support relief.
Fraud and mistake require particular circumstances; mental states may be alleged generally.
Affirmative defenses should be stated in the answer, and some Rule 12 defenses are waived if omitted from the first response.
Rule 11 requires reasonable inquiry into law and fact and includes a 21-day safe harbor for party-filed sanctions motions.
Monetary sanctions generally are not imposed against a represented party for a frivolous legal contention.

Attack sequence

1Identify pleading type and deadline.

2Separate factual allegations from conclusions.

3Check heightened pleading.

4Track waivable defenses.

5For sanctions, identify certification, notice, safe harbor, and permissible target.

Traps and exceptions

!A complaint need not prove the case, but labels alone do not suffice.

!The safe harbor does not govern every court-initiated order.

!Subject-matter jurisdiction is never waived by a Rule 12 omission.

WORKED APPLICATION

A complaint says only that the defendant 'acted negligently and caused damages' without facts identifying conduct or causation.

The court may disregard the bare legal conclusions and dismiss because the pleading lacks enough factual matter to make entitlement to relief plausible.

Essay-ready formulationA complaint must plead factual matter supporting a plausible claim, and every filed paper must satisfy Rule 11 after reasonable inquiry.

09 · Pleadings

Amendments and relation back

Rule 15 favors amendment, but post-limitations claims or parties are timely only if they relate back under the applicable tests.

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Black-letter propositions

A party may amend once as of course within the rule's specified early windows; otherwise consent or leave is required, and leave should be freely given when justice requires.
An amendment relates back when the governing limitations law allows it or the new claim arises from the same conduct, transaction, or occurrence.
Changing a defendant also requires timely notice within the Rule 4(m) period and knowledge that, but for a mistake concerning identity, the action would have been brought against that party.
Supplemental pleadings address events occurring after the original pleading.

Attack sequence

1Is amendment available as of right?

2If leave is needed, analyze delay, prejudice, bad faith, and futility.

3If limitations expired, select the relation-back route.

4For a new party, test notice and mistake.

Traps and exceptions

!Lack of knowledge about a defendant may not always be the required mistake.

!A new legal theory can relate back if the operative facts are the same.

!Prejudice means litigation prejudice, not merely losing a limitations defense.

WORKED APPLICATION

A plaintiff timely sues the wrong corporate affiliate. The correct affiliate received notice during the service period and knew the naming error.

The change may relate back because the claim is unchanged, the correct affiliate received timely notice without prejudice, and it knew it was omitted because of a mistake concerning identity.

Essay-ready formulationA post-limitations amendment relates back when it shares the original transaction and, for a changed party, timely notice and a qualifying identity mistake exist.

10 · Parties and claims

Joinder, impleader, intervention, and interpleader

The Federal Rules permit broad claim and party joinder, but every joined claim still requires subject-matter jurisdiction and compliance with the rule governing that procedural device.

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Black-letter propositions

Rule 18 permits any claims against an opposing party; Rule 13 distinguishes compulsory same-transaction counterclaims from permissive counterclaims.
Rule 20 permits parties whose claims arise from the same transaction or occurrence and share a common question.
Rule 19 requires joinder of a needed party when feasible and a pragmatic dismissal inquiry when joinder is impossible.
Rule 14 allows a defending party to implead a nonparty derivatively liable for the plaintiff's claim.
Intervention of right protects an impaired interest not adequately represented; permissive intervention rests on a common question.
Interpleader protects a stakeholder facing rival claims to one stake.

Attack sequence

1Name the device and its elements.

2Test jurisdiction independently, including section 1367(b).

3Determine whether any claim is compulsory.

4For Rule 19, separate needed, feasible, and indispensable inquiries.

Traps and exceptions

!Impleader is derivative, not a vehicle for 'the third party is solely liable to the plaintiff.'

!A compulsory counterclaim generally is lost if omitted.

!Necessary and indispensable are not interchangeable stages.

WORKED APPLICATION

A contractor sued for defective work impleads a subcontractor under an indemnity agreement.

Impleader is proper because the subcontractor may owe the contractor all or part of any liability the contractor incurs to the plaintiff; it is derivative rather than merely an independent claim.

Essay-ready formulationJoinder requires the correct procedural device and an independent jurisdictional basis or valid supplemental jurisdiction for each added claim.

11 · Aggregate litigation

Class actions

A class action requires numerosity, commonality, typicality, adequate representation, and one qualifying Rule 23(b) category, plus certification procedure and appropriate notice.

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Black-letter propositions

Rule 23(a) requires a sufficiently numerous class, common contentions capable of classwide resolution, typical representative claims, and adequate representatives and counsel.
A 23(b)(3) damages class also requires predominance and superiority, mandatory best-practicable notice, and opt-out rights.
Injury and Article III standing remain necessary; certification does not expand substantive rights.
For statutory diversity under CAFA, minimal diversity, at least 100 members, and an aggregate amount over $5 million generally suffice, subject to exceptions.

Attack sequence

1Define the proposed class and representative.

2Apply all four Rule 23(a) prerequisites.

3Choose the exact Rule 23(b) route.

4Address notice, opt-out rights, manageability, and jurisdiction.

Traps and exceptions

!Many similar claims do not automatically establish a common answer.

!A settlement class still must satisfy certification requirements.

!Ordinary diversity class actions and CAFA use different jurisdictional rules.

WORKED APPLICATION

Thousands of buyers allege the same mislabeled fee, but each signed a materially different contract.

Numerosity is clear, but commonality and especially predominance depend on whether liability can be resolved through shared proof despite contract variation. The court must analyze the proposed class, not assume aggregation.

Essay-ready formulationA class may be certified only when Rule 23(a) and one Rule 23(b) category are proved with evidence and the court addresses the applicable notice and opt-out protections.

12 · Discovery

Scope, privileges, work product, and sanctions

Parties may discover nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, using mandatory disclosures and authorized devices under judicial supervision.

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Black-letter propositions

Proportionality considers importance, amount, access, resources, importance to resolving issues, and burden versus benefit.
Attorney-client privilege protects qualifying confidential legal communications; work product protects litigation-prepared materials.
Ordinary work product may be discovered for substantial need and undue hardship, while mental impressions receive near-absolute protection.
Experts expected to testify are discoverable under specified rules; consulting experts receive stronger protection.
Spoliation sanctions depend on preservation duty, culpability, prejudice, and for severe electronically stored information sanctions, intent to deprive.

Attack sequence

1Identify the discovery device and proper recipient.

2Test relevance, privilege, and proportionality.

3For work product, ask why and when the material was prepared.

4Use a motion to compel and certification when required before sanctions.

5For lost ESI, apply the specialized rule.

Traps and exceptions

!Relevance in discovery is broader than trial admissibility but not unlimited.

!Underlying facts do not become privileged merely because communicated to counsel.

!Routine business reports do not become work product because litigation later occurs.

WORKED APPLICATION

A company creates the same incident report after every accident, whether or not anyone threatens suit.

The report is likely an ordinary business record rather than work product because it was created under a routine policy, not because of anticipated litigation. Privileged legal communications embedded in it require separate analysis.

Essay-ready formulationDiscovery reaches proportional, relevant, nonprivileged matter, while privilege, work product, and preservation rules require issue-specific protection and remedies.

13 · Adjudication

Summary judgment, JMOL, renewed JMOL, and new trial

Federal courts use distinct standards before, during, and after trial to decide whether evidence permits a reasonable jury verdict or whether a new proceeding is required.

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Black-letter propositions

Summary judgment asks whether admissible record materials show no genuine dispute of material fact, drawing reasonable inferences for the nonmovant.
Judgment as a matter of law is available after a party has been fully heard when a reasonable jury lacks a legally sufficient evidentiary basis.
Renewed JMOL requires a timely pre-verdict JMOL motion on the same ground.
A new trial may be ordered for harmful error, verdict against the weight of evidence, excessive damages, misconduct, or other injustice; the judge has broader discretion than on JMOL.
A remittitur offers a new trial unless the plaintiff accepts a reduced award; additur is not permitted in federal court.

Attack sequence

1Identify timing and governing motion.

2State who bears production and persuasion.

3Do not weigh credibility on summary judgment or JMOL.

4For renewed JMOL, confirm preservation.

5Separate harmless error from grounds requiring a new trial.

Traps and exceptions

!A scintilla of evidence may not create a genuine dispute.

!Renewed JMOL cannot resurrect an unmade pre-verdict ground.

!A new-trial motion is not governed by the identical standard as JMOL.

WORKED APPLICATION

A defendant waits until after an adverse verdict to argue that the plaintiff offered no causation evidence, having made no JMOL motion before submission.

The defendant ordinarily forfeited renewed JMOL on that ground. A new-trial motion may remain available under its distinct standard, but it cannot erase the preservation requirement.

Essay-ready formulationJMOL requires legally insufficient evidence and a timely pre-verdict motion; renewed JMOL is confined to preserved grounds, while a new trial addresses broader prejudicial error or injustice.

14 · Trial and review

Juries, judgments, appeals, and preclusion

The Seventh Amendment preserves a civil jury for legal claims, final-judgment principles limit appeals, and valid judgments can bar later claims or issues.

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Black-letter propositions

Demand a jury within 14 days after the last pleading directed to the issue; legal issues ordinarily go to the jury before overlapping equitable issues.
A final decision usually ends all claims for all parties; interlocutory review requires a recognized statutory, rule-based, collateral-order, or certified route.
Claim preclusion requires a valid final merits judgment, the same parties or privies, and the same transaction or claim.
Issue preclusion requires an identical issue actually litigated and determined, essential to judgment, and asserted against a party with a full and fair opportunity.
A default can support claim preclusion but usually not issue preclusion because issues were not actually litigated.

Attack sequence

1Classify relief as legal or equitable.

2Find a final judgment or interlocutory-review exception.

3For later litigation, choose claim or issue preclusion.

4Identify the precise transaction or issue and the party to be bound.

Traps and exceptions

!The right to jury depends on the nature of the claim and remedy, not a party's preferred label.

!Different legal theories do not avoid transaction-based claim preclusion.

!Nonmutual issue preclusion has fairness and offensive-use limits.

WORKED APPLICATION

After losing a fully litigated collision negligence action, the plaintiff sues the same defendant for property damage from the same crash under a different theory.

Claim preclusion ordinarily bars the second action because a valid merits judgment resolved litigation between the same parties and the property claim arose from the same transaction and could have been joined.

Essay-ready formulationA valid final judgment bars later transactional claims and actually litigated essential issues, subject to the distinct elements and fairness limits of claim and issue preclusion.

15 · Pretrial relief

Temporary restraining orders and preliminary injunctions

Rule 65 governs emergency and interim court orders that hold the parties in place until the merits are decided, and the movant must satisfy the Winter factors, give notice unless a narrow exception applies, and post security.

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Black-letter propositions

A court may issue a preliminary injunction only on notice to the adverse party, and it may advance the trial on the merits and consolidate it with the hearing, though evidence received on the motion that would be admissible at trial becomes part of the trial record and the party's jury right must be preserved.
Under Winter v. NRDC, a plaintiff seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm without preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest; a mere possibility of irreparable harm is not enough.
A temporary restraining order may issue without notice only if specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury will result to the movant before the adverse party can be heard, and the movant's attorney certifies in writing the efforts made to give notice and the reasons it should not be required.
A restraining order issued without notice must state the date and hour, describe the injury and why it is irreparable, and state why it issued without notice; it expires at the time the court sets, not to exceed 14 days, unless the court extends it for good cause for a like period or the adverse party consents to a longer extension.
If a restraining order issues without notice, the preliminary-injunction hearing must be set at the earliest possible time, the movant must proceed with the motion or the court must dissolve the order, and the adverse party may move to dissolve or modify it on two days' notice or shorter notice the court sets.
The court may issue a preliminary injunction or restraining order only if the movant gives security in an amount the court considers proper to pay the costs and damages of a party wrongfully enjoined; the United States, its officers and its agencies need not give security.
Every injunction and restraining order must state its reasons, state its terms specifically, and describe in reasonable detail, without referring to the complaint or another document, the acts restrained or required; it binds the parties, their officers, agents, servants, employees and attorneys, and other persons in active concert with them who receive actual notice.
Under 28 U.S.C. section 1292(a)(1), a court of appeals has jurisdiction over interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify them.

Attack sequence

1Decide whether the order sought is a restraining order or a preliminary injunction and whether notice was given.

2Walk the four Winter factors and note which are shown as likely rather than merely possible.

3Check the Rule 65(b) affidavit and attorney certification for any order without notice, and the 14-day limit.

4Confirm security, specificity of terms, and who is bound, then consider whether an interlocutory appeal lies.

Traps and exceptions

!A strong showing on the merits does not excuse the failure to show likely irreparable harm.

!A restraining order without notice is short-lived, and the movant must be ready to proceed to a preliminary-injunction hearing.

!An injunction that refers the reader to the complaint to learn what is forbidden does not satisfy Rule 65(d).

WORKED APPLICATION

A company moves for an order barring a former employee from using its customer list, filing an affidavit that the employee will email it to a competitor tonight and asking that the court act without notice.

If the affidavit shows specific facts of immediate, irreparable injury before the employee can be heard and counsel certifies the efforts to give notice, a restraining order may issue without notice. It expires within 14 days unless extended for good cause, the company must post security, and a preliminary-injunction hearing follows on the Winter factors.

Essay-ready formulationState whether the order is a restraining order or a preliminary injunction, apply the notice rules, run the Winter factors, and finish with security, specificity, and appealability.

16 · Motions

Rule 12: responsive-pleading deadlines, pre-answer motions, and waiver of defenses

Rule 12 sets when a defendant must respond, which seven defenses may be raised by motion, which of them are waived if omitted, and how motions on the pleadings are handled.

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Black-letter propositions

A defendant must serve an answer within 21 days after being served with the summons and complaint, or within 60 days after the request for waiver was sent if it timely waived service under Rule 4(d), or 90 days if the request was sent outside any judicial district of the United States; the United States and its agencies and officers sued in an official capacity have 60 days after service on the United States attorney.
A party may raise by motion the defenses of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to join a party under Rule 19, and a motion asserting any of them must be made before pleading if a responsive pleading is allowed; joining defenses in one motion or pleading waives none of them.
Serving a Rule 12 motion alters the time to answer: if the court denies the motion or postpones it until trial, the responsive pleading is due 14 days after notice of the court's action, and if the court grants a motion for a more definite statement, it is due 14 days after the more definite statement is served.
A party that makes a Rule 12 motion must not make another Rule 12 motion raising a defense that was available but omitted, and a party waives the defenses of lack of personal jurisdiction, improper venue, insufficient process and insufficient service by omitting them from a Rule 12 motion or by failing to raise them in a motion or in a responsive pleading or amendment as of right.
Failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense are not waived and may be raised in any pleading, by a Rule 12(c) motion, or at trial, while lack of subject-matter jurisdiction may be raised at any time and the court must dismiss when it finds it lacks it.
After the pleadings are closed, a party may move for judgment on the pleadings; if on a Rule 12(b)(6) or 12(c) motion matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56 and all parties must have a reasonable opportunity to present pertinent material.
A party may move for a more definite statement of a pleading that is so vague or ambiguous that it cannot reasonably prepare a response, before responding, and if the order is not obeyed within 14 days the court may strike the pleading; the court may strike an insufficient defense or redundant, immaterial, impertinent or scandalous matter on its own or on motion made before responding, or within 21 days after service if no response is allowed.

Attack sequence

1Calculate the deadline to respond from service, waiver, or a ruling on a Rule 12 motion.

2List the Rule 12(b) defenses the defendant has and decide which must be raised now to avoid waiver.

3Check whether an earlier Rule 12 motion omitted a defense that was then available.

4Ask whether matters outside the pleadings were presented, which converts the motion to summary judgment.

Traps and exceptions

!Personal jurisdiction, venue, process and service are waived if omitted, but subject-matter jurisdiction never is.

!Filing a Rule 12(b) motion pauses the answer deadline, and it does not excuse omitting available defenses from the motion.

!A motion to dismiss for failure to state a claim is decided on the pleadings, and attaching outside evidence risks conversion to summary judgment.

WORKED APPLICATION

A defendant files a Rule 12(b)(6) motion arguing that the complaint fails to state a claim, and it does not mention personal jurisdiction. The motion is denied, and the defendant then answers and asserts lack of personal jurisdiction.

Because the defendant omitted personal jurisdiction from its Rule 12 motion when the defense was available, it waived that defense under Rule 12(g)(2) and (h)(1). The failure-to-state-a-claim defense remains available under Rule 12(h)(2), and subject-matter jurisdiction may be raised at any time.

Essay-ready formulationCompute the response deadline, identify each available defense, apply the consolidation and waiver rules, and check whether the motion converts to summary judgment.

17 · Parties and claims

Counterclaims, crossclaims, joinder of claims, and permissive joinder of parties

The federal rules decide which of a party's claims must be pleaded, which may be added, and when different people may be on the same side of one lawsuit.

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Black-letter propositions

A pleading must state as a compulsory counterclaim any claim the pleader has against an opposing party at the time of service if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require adding a party over whom the court cannot acquire jurisdiction; the pleader need not state it if it was the subject of another pending action when the action began.
A pleading may state as a permissive counterclaim any claim against an opposing party that is not compulsory, and a counterclaim need not diminish or defeat the opposing party's recovery, so it may seek relief that exceeds in amount or differs in kind from the relief sought against the pleader.
A pleading may state as a crossclaim any claim by one party against a coparty if it arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or relates to property that is the subject matter of the original action, and it may claim that the coparty is or may be liable for all or part of a claim asserted against the crossclaimant.
Rule 18(a) lets a party asserting a claim, counterclaim, crossclaim or third-party claim join as many claims as it has against an opposing party, related or not, and Rule 18(b) permits contingent claims to be joined, though the court grants relief only according to the parties' substantive rights.
Persons may join as plaintiffs, or be joined as defendants, if any right to relief is asserted jointly, severally or in the alternative with respect to the same transaction, occurrence or series of transactions or occurrences and a question of law or fact common to all of them will arise in the action.
Under Rule 20(a)(3), a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded, and Rule 20(b) lets the court issue protective orders, including for separate trials, to protect a party from embarrassment, delay, expense or other prejudice.
For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more issues, claims, crossclaims, counterclaims or third-party claims under Rule 42(b), and it must preserve any federal right to a jury trial; the court may also consolidate actions that involve a common question of law or fact.
Supplemental jurisdiction under 28 U.S.C. section 1367(a) covers claims so related to the claims in the action within original jurisdiction that they form part of the same case or controversy, including claims involving joinder or intervention of additional parties, which is why a compulsory counterclaim needs no independent basis of jurisdiction.

Attack sequence

1Identify each claim between the parties and ask whether it arises out of the same transaction or occurrence as the opposing party's claim.

2Decide whether the claim is a compulsory counterclaim, a permissive counterclaim, or a crossclaim against a coparty.

3For joinder of parties, test the same-transaction requirement and the common question requirement.

4Ask whether subject-matter jurisdiction supports each added claim, and whether separate trials or consolidation are warranted.

Traps and exceptions

!Rule 18 lets a party join unrelated claims against the same opposing party, but Rule 20 does not let a plaintiff sue unrelated defendants together.

!A crossclaim runs between coparties and needs a connection to the original action, and a claim against an opposing party is a counterclaim.

!A counterclaim may seek more than the plaintiff's claim is worth, and it does not have to reduce the plaintiff's recovery.

WORKED APPLICATION

A driver is sued for damages after a collision. He was also injured in the collision and, separately, the plaintiff owes him money on an unrelated loan.

His injury claim arises from the same collision and must be stated as a compulsory counterclaim. The unrelated loan claim is a permissive counterclaim that he may add, and Rule 18(a) would let him join further claims against the plaintiff, subject to subject-matter jurisdiction.

Essay-ready formulationClassify each claim as compulsory, permissive or crossclaim, apply the same-transaction test, check joinder of parties under Rule 20, and address jurisdiction and separate trials.

18 · Discovery

Discovery: scope, disclosures, work product, experts, and the discovery devices

Federal discovery runs on required disclosures and a handful of devices, and the exam tests scope, privilege and work product, expert rules, numerical limits, and sanctions.

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Black-letter propositions

Parties may discover any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery, and whether burden or expense outweighs likely benefit; information within that scope need not be admissible to be discoverable.
Without waiting for a request, a party must provide initial disclosures: witnesses likely to have discoverable information that it may use, documents and electronically stored information it may use, a computation of damages, and any insurance agreement that may satisfy a judgment; they are due at or within 14 days after the Rule 26(f) conference unless the court or the parties set another time.
A party may not seek discovery from any source before the parties have conferred under Rule 26(f), except in proceedings exempt from initial disclosure or when authorized by rule, stipulation or court order.
Documents and tangible things prepared in anticipation of litigation by or for another party or its representative are ordinarily not discoverable, but they may be obtained on a showing of substantial need and inability, without undue hardship, to obtain the substantial equivalent; even then the court must protect the mental impressions, conclusions, opinions and legal theories of the party's attorney.
Any party or other person may obtain, without the substantial-need showing, that person's own previous statement about the action.
An expert who may testify must be disclosed, and a retained expert must give a signed report containing all opinions and their basis, the facts or data considered, exhibits, qualifications including publications in the past 10 years, other testimony in the past 4 years, and compensation; absent a court order the disclosure is due at least 90 days before trial, or within 30 days after the other party's disclosure if it only rebuts.
Drafts of expert reports and most attorney-expert communications are protected, except communications about compensation, facts or data the attorney supplied and the expert considered, and assumptions the attorney supplied and the expert relied on; an expert retained only for trial preparation and not expected to testify is discoverable only on a showing of exceptional circumstances.
Unless stipulated or ordered, each side may take no more than 10 depositions, a deposition is limited to 1 day of 7 hours, and a party may serve no more than 25 written interrogatories, counting discrete subparts.
Responses to interrogatories, requests for production and requests for admission are due within 30 days after service; a matter in a request for admission is admitted unless the party serves a written answer or objection within that time, and an admitted matter is conclusively established unless the court permits withdrawal or amendment.
A court may order a party whose physical or mental condition is in controversy to submit to an examination by a suitably licensed examiner, but only on motion for good cause and notice to all parties.
On good cause, and after a good-faith conference, the court may issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including forbidding the discovery, limiting its scope, or requiring that trade secrets not be revealed or be revealed only in a specified way.
A party that fails to make a required disclosure or supplement may not use the information or witness at a motion, hearing or trial unless the failure was substantially justified or harmless; a party must supplement disclosures and responses in a timely manner when it learns they are incomplete or incorrect.

Attack sequence

1Ask whether the matter is nonprivileged, relevant to a claim or defense, and proportional; admissibility is not the test.

2Identify the device (deposition, interrogatory, request for production, request for admission, examination) and check its numerical and timing limits.

3For documents prepared for the litigation, run the work-product test: substantial need plus no equivalent, with opinion work product protected.

4For experts, decide whether the witness is retained or a trial-preparation-only expert, and check report, timing and communication protections.

Traps and exceptions

!Inadmissible information can still be discoverable if it falls within the scope of Rule 26(b)(1).

!Silence to a request for admission is an admission, while silence to an interrogatory is a sanctionable failure.

!Work product is not absolute, because substantial need can reach fact work product, but attorney opinions stay protected.

WORKED APPLICATION

A plaintiff's lawyer asks the defendant's insurer for an accident report the insurer prepared right after a crash. The defendant refuses.

The report was prepared in anticipation of litigation by a party's insurer, so it is ordinarily protected. The plaintiff can obtain it only by showing substantial need and inability without undue hardship to get the substantial equivalent elsewhere.

Essay-ready formulationState the Rule 26(b)(1) scope, apply privilege and work product, check the device's limits and deadlines, and finish with protective orders and Rule 37 sanctions.

19 · Judgments

Dismissals, default, summary judgment, judgment as a matter of law, and relief from judgment

A federal case can end by voluntary or involuntary dismissal, default, summary judgment, a directed verdict, or a judgment that is later attacked, and each route has its own timing and preclusive effect.

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Black-letter propositions

A plaintiff may dismiss without a court order by filing a notice of dismissal before the opposing party serves an answer or a motion for summary judgment, or by a stipulation signed by all parties who have appeared; unless it says otherwise the dismissal is without prejudice.
If a plaintiff previously dismissed any federal or state action based on or including the same claim, a second notice of dismissal operates as an adjudication on the merits (the two-dismissal rule).
After the defendant has answered or moved for summary judgment, the plaintiff may dismiss only by stipulation or by court order on terms the court considers proper, and unless the order says otherwise the dismissal is without prejudice.
If the plaintiff fails to prosecute or to comply with the rules or a court order, the defendant may move to dismiss; unless the order says otherwise, that dismissal, and any dismissal not under Rule 41, operates as an adjudication on the merits, except a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.
When a party against whom affirmative relief is sought has failed to plead or otherwise defend, the clerk must enter the default; the clerk may enter judgment for a sum certain, and in other cases the party must apply to the court, with written notice at least 7 days before the hearing to a defaulting party that has appeared.
The court may set aside an entry of default for good cause, but it may set aside a final default judgment only under Rule 60(b).
Summary judgment must be granted if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury and must specify the judgment sought and the law and facts that support it; it is proper when a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue.
A renewed motion for judgment as a matter of law, with an alternative request for a new trial, must be filed within 28 days after entry of judgment; a motion for a new trial or to alter or amend a judgment must also be filed within 28 days after entry of judgment.
Rule 60(b) allows relief from a final judgment for mistake, inadvertence, surprise or excusable neglect; newly discovered evidence that could not have been found in time to move for a new trial; fraud, misrepresentation or misconduct by an opposing party; a void judgment; a satisfied or discharged judgment; or any other reason that justifies relief.
A Rule 60(b) motion must be made within a reasonable time, and no more than a year after entry of the judgment for mistake, newly discovered evidence, or fraud; the motion does not affect the finality of the judgment or suspend its operation.
At least 14 days before trial a defending party may serve an offer of judgment; the opposing party has 14 days to accept, and if the judgment finally obtained is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Attack sequence

1Identify how the case ended and when it ended relative to the answer or a summary judgment motion.

2For dismissals, decide whether the dismissal is with or without prejudice, and apply the two-dismissal rule.

3For post-judgment attacks, match the motion to its deadline: 28 days for Rule 50(b), 59(b), 59(e), and a year for the first three Rule 60(b) grounds.

4For an offer of judgment, check the 14-day window and what the unaccepted offer shifts.

Traps and exceptions

!Rule 68 shifts costs only, and it does not shift attorney's fees unless the underlying statute defines fees as costs.

!A dismissal for lack of jurisdiction, improper venue or failure to join a party is not on the merits, while most other involuntary dismissals are.

!A Rule 60(b) motion is not a substitute for an appeal, and it does not suspend the judgment.

WORKED APPLICATION

A plaintiff sues in federal court and dismisses by notice a month later, before any answer. She then refiles the same claim in state court and dismisses that case by notice as well.

The first dismissal was without prejudice. When she dismisses a second time by notice, having previously dismissed an action on the same claim, the second dismissal operates as an adjudication on the merits and bars a third suit.

Essay-ready formulationName the route to final judgment, apply the timing and prejudice rules for it, then address any post-judgment motion by its deadline and standard.

20 · Trial

Jury trial: the Seventh Amendment, demand and waiver, jury selection, verdicts, and instructions

The right to a federal civil jury turns on whether the claim is legal or equitable, and it is lost unless demanded on time; selection, verdict form, and instruction objections are tested procedural details.

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Black-letter propositions

The Seventh Amendment right to a jury in federal civil cases extends to actions that are legal in nature, as opposed to equitable, and an action for damages under a statute that creates a legal claim carries the right to a jury trial.
When a case joins a legal claim and an equitable claim that share common issues, the court should try the legal issues to the jury first, so the jury right is not lost by first deciding the common issues in equity.
A party may demand a jury trial on any issue triable of right by a jury by serving a written demand no later than 14 days after the last pleading directed to the issue is served and filing it under Rule 5(d).
A party waives a jury trial unless its demand is properly served and filed, and a proper demand may be withdrawn only if the parties consent.
If the demand does not specify issues, the party is considered to have demanded a jury on all issues triable by jury.
A federal civil jury must begin with at least 6 and no more than 12 members, and unless the parties stipulate otherwise the verdict must be unanimous and returned by at least 6 jurors.
Each party is entitled to three peremptory challenges in a civil case under 28 U.S.C. section 1870, and challenges for cause are unlimited in number.
A party may not use peremptory challenges to exclude jurors on account of race; the challenger makes a prima facie showing, the burden then shifts to the other side to give a neutral explanation, and the rule applies in civil cases as well as criminal cases.
The court may require a special verdict, a written finding on each issue of fact, or a general verdict accompanied by answers to written questions.
When the answers to written questions are consistent with each other but one is inconsistent with the general verdict, the court may enter judgment according to the answers, direct the jury to further consider its answers and verdict, or order a new trial.
A party who objects to an instruction, or to the failure to give one, must do so on the record, stating distinctly the matter objected to and the grounds for the objection, at the opportunity the court provides before the instructions and closing arguments.
A party may assign as error an instruction given only if it properly objected, and a failure to give an instruction only if it properly requested it and, unless the court rejected the request in a definitive ruling on the record, also objected.

Attack sequence

1Classify each claim as legal or equitable and ask whether a jury right exists on the issue.

2Check that a jury demand was served within 14 days after the last pleading directed to the issue and filed.

3Ask about jury size, unanimity, and peremptory challenges, and test any strike for a race-based reason.

4For instruction error, ask whether the party requested and objected on the record, stating grounds distinctly.

Traps and exceptions

!A jury demand cannot be unilaterally withdrawn, because withdrawal requires the consent of the parties.

!Combining a legal claim with an equitable claim does not let the court decide the common issues without the jury.

!An unpreserved instruction error is not reviewed as a matter of course, so a general objection is not enough.

WORKED APPLICATION

A tenant sues a landlord for damages under a fair housing statute and, in the same complaint, seeks an injunction. The plaintiff's lawyer forgets to demand a jury within 14 days after the answer.

The damages claim is legal and would carry a jury right, but the right is waived because no demand was served and filed on time. The equitable claim is tried to the judge.

Essay-ready formulationClassify the claim, apply Beacon Theatres to mixed claims, check the 14-day demand, and then address selection, verdict form, and preservation of instruction error.

21 · Appeals

Appealability: final decisions, interlocutory orders, Rule 54(b), the collateral order doctrine, and review of findings

A federal appeal generally waits for a final decision, with statutory and judge-made exceptions; the exam tests which orders can be appealed now, how long the notice of appeal takes, and the clear error standard for findings of fact.

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Black-letter propositions

The courts of appeals have jurisdiction of appeals from all final decisions of the district courts, under 28 U.S.C. section 1291.
An order that adjudicates fewer than all the claims or the rights of fewer than all the parties does not end the action and may be revised at any time before final judgment, unless the court directs entry of final judgment on some claims or parties under Rule 54(b).
Under Rule 54(b), the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if it expressly determines that there is no just reason for delay.
Section 1292(a)(1) allows an immediate appeal from orders of the district courts granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.
Under section 1292(b), a district judge who is of the opinion that a non-appealable order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation, may so state in writing in the order, and the court of appeals may in its discretion permit an appeal if application is made within ten days after entry of the order.
Under the collateral order doctrine, a decision that finally determines claims of right separable from, and collateral to, the rights asserted in the action, and too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated, is appealable immediately.
In a civil case the notice of appeal must be filed within 30 days after entry of the judgment or order appealed from, or within 60 days if the United States, a federal agency or a federal officer or employee sued in an official capacity is a party.
A timely motion under Rule 50(b), Rule 52(b), Rule 59 (new trial or to alter or amend) or a Rule 60 motion filed within the Rule 59 time makes the time to appeal run for all parties from the order disposing of the last such motion.
In a case tried without a jury, findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.
On a party's motion filed no later than 28 days after entry of judgment, the court may amend its findings, or make additional findings, and may amend the judgment accordingly.

Attack sequence

1Ask whether the order ends the whole action, and if not whether a Rule 54(b) certification exists.

2Look for a statutory exception: an injunction order under 1292(a)(1), or a 1292(b) certification and permission.

3Test the collateral order doctrine elements for a decision that is separable, important and effectively unreviewable later.

4Compute the 30-day deadline and check whether a tolling post-judgment motion was timely.

Traps and exceptions

!A Rule 54(b) certification requires an express determination of no just reason for delay, and the label the court chooses is not enough.

!A section 1292(b) certification does not by itself authorize an appeal, because the court of appeals must also permit it.

!A motion that is late under the rules does not toll the time to appeal.

WORKED APPLICATION

A district court in a two-claim case grants summary judgment on one claim and sets the other for trial. The winning party wants to appeal now.

The order decides fewer than all claims and is not a final decision unless the court enters judgment on that claim under Rule 54(b) with an express determination that there is no just reason for delay.

Essay-ready formulationState the final-judgment rule, then check each exception in turn, and finish with the deadline and the standard of review.

22 · Jurisdiction and venue

Service of process: who may serve, methods for individuals and corporations, waiver, and the 90-day limit (Rule 4)

A plaintiff must have the summons and complaint served within 90 days by a nonparty at least 18 years old using a method the rule allows, a defendant may waive service and gain extra time to answer, and service establishes personal jurisdiction in the ways Rule 4(k) describes.

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Black-letter propositions

A summons must be served with a copy of the complaint, and the plaintiff is responsible for having them served within the time allowed by Rule 4(m).
Any person who is at least 18 years old and not a party may serve a summons and complaint.
An individual in a judicial district of the United States may be served by following state law for serving a summons where the district court sits or where service is made, or by delivering the summons and complaint personally, by leaving them at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or by delivering them to an authorized agent.
A domestic or foreign corporation, partnership, or association subject to suit under a common name must be served in the manner for an individual under state law, or by delivering the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service.
If a defendant is not served within 90 days after the complaint is filed, the court, on motion or on its own after notice, must dismiss without prejudice as to that defendant or order that service be made within a specified time, and it must extend the time if the plaintiff shows good cause.
The 90-day limit does not apply to service in a foreign country under Rule 4(f), Rule 4(h)(2), or Rule 4(j)(1).
A plaintiff may request that a defendant waive service by sending a written request that gives the defendant a reasonable time of at least 30 days after the request was sent, or at least 60 days if sent outside any judicial district of the United States, to return the waiver.
A defendant located in the United States who fails without good cause to sign and return a requested waiver must pay the expenses of later service, and a defendant who timely returns a waiver need not answer until 60 days after the request was sent, or 90 days if it was sent outside any judicial district.
When the plaintiff files a waiver, proof of service is not required and the rules apply as if a summons and complaint had been served at the time of filing the waiver.
Serving a summons or filing a waiver establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.

Attack sequence

1Identify the defendant type: individual, corporation, or another kind of entity.

2Match the method to the rule: personal delivery, abode service, an agent, or state law.

3Confirm the server is at least 18 and not a party.

4Count 90 days from filing and look for good cause or a foreign-service exception.

5Check whether the defendant waived service, and calculate the new answer deadline.

Traps and exceptions

!A party cannot serve the summons and complaint, even a plaintiff who is willing.

!Leaving papers at a defendant's abode works only if left with a resident of suitable age and discretion.

!The 90-day clock does not apply to service in a foreign country under the listed provisions.

!A waiver gives the defendant 60 days from the date the request was sent, not from the date of the waiver.

WORKED APPLICATION

A plaintiff files a complaint on March 1 and asks a friend who is a party to a related case to hand the papers to the defendant, an individual who lives in the same state. The friend leaves them with a neighbor.

Neither the neighbor delivery nor the friend's status satisfies Rule 4, because a nonparty must serve, and leaving the papers with a neighbor is not delivery to the individual or to a resident of the defendant's abode.

Essay-ready formulationIdentify the defendant, apply the correct method under Rule 4(e) or 4(h), check the 90-day limit and any waiver, and state the consequence.

23 · Jurisdiction and venue

Removal, remand, venue, and transfer of civil cases in federal court

A defendant may remove a state case that could have been filed in federal court, but only within 30 days, with all served defendants joining, never by a forum-state defendant in a diversity case, and a remand for lack of subject-matter jurisdiction can occur at any time and is not reviewable, while venue is proper in the districts the statute lists and an improperly venued case is dismissed or transferred.

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Black-letter propositions

A civil action brought in a state court of which the federal district courts have original jurisdiction may be removed by the defendant or defendants to the federal district court for the district and division embracing the place where the action is pending.
A civil action removable solely on diversity may not be removed if any properly joined and served defendant is a citizen of the state in which the action is brought.
A notice of removal must be filed within 30 days after the defendant receives the initial pleading through service or otherwise, and each defendant has 30 days after receipt by or service on that defendant.
When an action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal, and a later-served defendant may remove with the consent of an earlier-served defendant even though the earlier-served defendant did not previously consent.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case has become removable, but a diversity case may not be removed on that basis more than one year after commencement unless the plaintiff acted in bad faith to prevent removal.
A motion to remand for any defect other than lack of subject-matter jurisdiction must be made within 30 days after the notice of removal is filed, but if at any time before final judgment it appears that the court lacks subject-matter jurisdiction, the case shall be remanded.
An order remanding a case to state court is generally not reviewable on appeal or otherwise, except a remand based on federal officer or civil rights removal, and the remand order may require payment of just costs and actual expenses, including attorney fees, incurred because of the removal.
A civil action may be brought in a district where any defendant resides if all defendants reside in the state, in a district where a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property is located, or, if no district qualifies, in any district where a defendant is subject to personal jurisdiction.
An entity that is a defendant resides in any district in which it is subject to the court's personal jurisdiction for the action, and a natural person resides in the district where the person is domiciled.
A court in which venue is laid in the wrong district shall dismiss or, in the interest of justice, transfer the case to a district where it could have been brought, and a court may transfer a properly venued case for the convenience of parties and witnesses to a district where it might have been brought or to which all parties have consented.

Attack sequence

1Ask whether the federal court would have had original jurisdiction over the state action.

2For a diversity case, apply the forum-defendant rule.

3Count the 30 days from service on each defendant, and check the one-year limit if the case became removable later.

4Confirm that all properly joined and served defendants joined or consented.

5For venue, apply the venue statute and then distinguish dismissal or transfer for wrong venue from transfer for convenience.

Traps and exceptions

!A defendant who is a citizen of the forum state cannot remove a diversity case, even if the plaintiff is from another state.

!The 30 days run from service, not just from the filing of the complaint.

!A remand for lack of subject-matter jurisdiction may occur any time before final judgment and is not appealable.

!Improper venue leads to dismissal or transfer, while a convenience transfer requires a district where the case might have been brought or consent.

WORKED APPLICATION

A plaintiff from State A sues a defendant from State B in State A's state court for $200,000 on a state-law claim. The defendant is served on June 1 and files a notice of removal on July 15.

The notice was filed more than 30 days after service, so the removal is untimely, and the plaintiff may move to remand within 30 days after the notice on that procedural ground.

Essay-ready formulationState the basis for federal jurisdiction, then apply the removal restrictions, timing rules, and consent requirements, and finish with the venue or transfer analysis.

24 · Pretrial procedures

Nonparty subpoenas, corporate depositions, document requests, and lost electronic information (Rules 30(b)(6), 34, 37(e), and 45)

A subpoena reaches nonparties for testimony and documents within geographic limits and subject to objections, a party may depose an organization through designees who testify to information reasonably available to it, document requests reach electronically stored information in a party's possession, custody, or control, and courts may sanction the loss of electronic information only on the findings Rule 37(e) requires.

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Black-letter propositions

Any person who is at least 18 years old and not a party may serve a subpoena, and serving a subpoena that requires attendance requires delivering a copy to the named person and tendering the fees for one day's attendance and the mileage allowed by law, unless the subpoena issues on behalf of the United States.
A subpoena may command a person to attend a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person, or within the state where the person resides, is employed, or regularly transacts business in person if the person is a party or a party's officer or would not incur substantial expense to attend trial.
A subpoena may command production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.
A person commanded to produce documents or things need not appear in person at the place of production unless also commanded to appear for a deposition, hearing, or trial.
A person commanded to produce may serve a written objection before the earlier of the time specified for compliance or 14 days after the subpoena is served, and after an objection the serving party may move to compel in the court for the district where compliance is required, with the order protecting a nonparty from significant expense.
A party or attorney issuing a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to it, and the court for the district where compliance is required must impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, for failure to do so.
A party may name a corporation, partnership, association, governmental agency, or other entity as the deponent and must describe with reasonable particularity the matters for examination, and the organization must designate one or more persons to testify on its behalf.
The organization's designees must testify about information known or reasonably available to the organization, and the serving party and the organization must confer in good faith about the matters for examination before or promptly after the notice or subpoena is served.
A party may serve on any other party a request to produce documents or electronically stored information in the responding party's possession, custody, or control, and the responding party must respond in writing within 30 days after being served, stating with specificity the grounds for any objection.
If electronically stored information that should have been preserved is lost because a party failed to take reasonable steps and it cannot be restored or replaced, the court on finding prejudice may order measures no greater than necessary to cure it, but may presume the information was unfavorable, give an adverse-inference instruction, or dismiss or enter default only on finding that the party acted with intent to deprive another party of its use.

Attack sequence

1Decide whether the target is a party, which calls for Rule 34 or a notice, or a nonparty, which calls for a Rule 45 subpoena.

2Check the server, the fee tender, and the 100-mile place-of-compliance limits.

3For an organization, look for a Rule 30(b)(6) description and the duty to prepare a designee.

4Calculate the response and objection deadlines.

5For lost electronic information, ask about reasonable steps, prejudice, and intent to deprive before choosing a sanction.

Traps and exceptions

!A nonparty can be commanded to a deposition only within the geographic limits, even when the lawyer wants it elsewhere.

!A designee under Rule 30(b)(6) must testify to information reasonably available to the organization, and not only what the person personally knows.

!An adverse-inference instruction or default for lost electronic information requires a finding of intent to deprive.

!A nonparty served with a subpoena to produce documents can object in writing instead of appearing.

WORKED APPLICATION

A party's litigation hold is ignored and a manager deletes emails that should have been kept. The emails cannot be recovered. The opposing party asks for a jury instruction that the emails would have been unfavorable, and there is no evidence the manager meant to hurt the case.

The adverse-inference instruction requires a finding that the party acted with intent to deprive, which the facts do not show, so the court may only order measures no greater than necessary to cure any prejudice.

Essay-ready formulationIdentify whether the person is a party or nonparty, choose the correct discovery device, and apply the timing, geographic, and sanction rules.

25 · Dispositive motions

Plausible pleading and summary judgment: the Twombly, Iqbal, Celotex, and Anderson standards

A complaint survives a motion to dismiss only if its factual allegations, taken as true, state a plausible claim, and summary judgment is proper when the record shows no genuine dispute of material fact, meaning no reasonable jury could find for the nonmoving party, with the moving party able to win by pointing to the absence of evidence on an element the opponent must prove.

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Black-letter propositions

A complaint must contain a short and plain statement of the claim, and detailed factual allegations are not required, but it must contain enough factual matter, accepted as true, to state a claim to relief that is plausible on its face.
A claim has facial plausibility when the pleaded facts allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Allegations of parallel conduct and a bare assertion of conspiracy do not state an agreement in violation of the antitrust laws, because the conduct is as consistent with independent business decisions as with an agreement.
A court may disregard threadbare recitals of the elements of a cause of action supported by mere conclusions, because they are not entitled to the assumption of truth, and then assume the veracity of well-pleaded facts and decide whether they plausibly give rise to an entitlement to relief.
Determining whether a complaint states a plausible claim is context-specific and requires the court to draw on its judicial experience and common sense.
Summary judgment must be entered, after adequate time for discovery and on motion, against a party who fails to make a showing sufficient to establish an element essential to that party's case on which it bears the burden of proof at trial.
The moving party need not support its motion with affidavits or other materials negating the opponent's claim, and it may point to the absence of evidence on an element on which the opponent bears the burden.
A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and the judge's function at summary judgment is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial.
The evidentiary standard the jury would apply at trial, such as clear and convincing evidence of actual malice in a libel case, guides the court's summary judgment analysis.
When the record, such as a videotape, blatantly contradicts the plaintiff's version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts in ruling on summary judgment.

Attack sequence

1On a motion to dismiss, strip out conclusions and labels, then ask whether the remaining facts plausibly show liability.

2Ask whether the alleged facts are just as consistent with lawful conduct.

3On summary judgment, identify who bears the burden of proof at trial on the disputed element.

4Ask whether a reasonable jury could find for the nonmovant on the record evidence.

5Look for undisputed objective evidence that contradicts a party's account.

Traps and exceptions

!Plausibility does not require detailed facts, but labels and conclusions do not count.

!A court deciding a summary judgment motion does not weigh credibility or the evidence.

!The moving party with no burden at trial can win by showing the absence of evidence on an essential element.

!A party's own version of events does not create a genuine dispute if a videotape blatantly contradicts it.

WORKED APPLICATION

Consumers allege that several telephone companies engaged in parallel conduct and say generally that the companies must have agreed not to compete. They allege no facts about any meeting or communication.

Parallel conduct plus a bare assertion of agreement does not state a plausible claim, because the conduct is just as consistent with independent decisions, so the complaint fails under Rule 12(b)(6).

Essay-ready formulationExplain the plausibility standard and apply it to the pleaded facts, or state the summary judgment standard, allocate the burden, and ask whether a reasonable jury could find for the nonmovant.

QUICK ANSWERS

What NCBE lists for Civil Procedure

What does the pretrial procedures category include?+

Preliminary injunctions and temporary restraining orders, pleadings, Rule 11, joinder including class actions, discovery, adjudication without a trial, and the pretrial conference and order.

What motions does NCBE list for Civil Procedure?+

Pretrial motions including motions to dismiss and summary judgment, motions for judgment as a matter of law, and posttrial motions for relief from judgment and for a new trial.

Which subject-matter jurisdiction topics does NCBE list?+

Federal question, diversity, supplemental jurisdiction and removal, along with personal jurisdiction, service and notice, and venue, forum non conveniens and transfer.

What does the law applied by federal courts category cover?+

State law in federal court and federal common law. NCBE lists this as category II of its seven-category Civil Procedure outline.

What jury trial topics are in the outline?+

The right to jury trial, selection and composition of juries, and requests for and objections to jury instructions.

What does the verdicts and judgments category include?+

Defaults and dismissals, types of jury verdicts and challenges, judicial findings and conclusions, and the effect of judgments including claim and issue preclusion.

What does the appealability and review category include?+

Availability of interlocutory review, the final judgment rule, and the scope of review for judge and jury.

Does the Civil Procedure outline appear the same on the MEE?+

The MEE outline lists the same seven categories for Civil Procedure, and NCBE says Civil Procedure may be covered on the MEE.

SOURCE DESK

Official NCBE sources

NCBE: MBE subject matter outline↗NCBE: preparing for the MBE↗

Governing text

Civil procedure questions turn on rule text, so read the current wording of the Federal Rules of Civil Procedure that this topic applies. Federal Rules of Civil Procedure (U.S. Courts) ↗