CIVIL PROCEDURE CHECKLIST

I.SIMPLE JOINDER OF CLAIMS

a.STEPS:

  1. GENERAL – Definition of Same Transaction or Occurrence:
  2. Are the issues of fact and law raised in the claim and the counterclaim largely the same
  3. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule?
  4. Will substantially the same evidence support or refute the claim as well as the counterclaim
  5. Is there a logical relationship between the claim and the counterclaim? (look at but for causation)
  6. Joinder of Parties – Rule 20 (not compulsory)
  7. Must arise from same transaction or occurrence; AND
  8. Must involve some common question of fact or law
  9. Joinder of Claims – Rule 13, 14, and 18
  10. Plaintiff’s Joinder - Rule 18
  11. Is there an independent claim
  12. Which has been properly joined
  13. Over which the court does have SMJ? (If SMJ is an issue)
  14. Defendant’s Joinder
  15. Counter-Claim - Rule 13
  16. Compulsory – same transaction or occurrence (covered by §1367)
  17. Permissive – unrelated claim
  18. Is there an anchor claim
  19. If no, can still assert, but §1367 doesn’t apply absent an exception
  20. Cross-Claim – Rule 13 (Not compulsory)
  21. Must be same transaction or occurrence
  22. No unrelated claims
  23. Is there a related claim already asserted?
  24. If yes, Rule 18 allows assertion of additional claims (must have SMJ)
  25. If by a plaintiff, can’t destroy complete diversity jurisdiction (§1367)
  26. Impleader – Rule 14 (not compulsory)
  27. Is impleader proper under procedural rules?
  28. Must look to applicable tort law to determine if law entitles 3d plaintiff to reimbursement from 3d defendant.
  29. Is there SMJ???
  30. If destroys complete diversity, must consider posture
  31. Once a party has been properly impleaded, Rule 14(a) allows various other related claims to be asserted;
  32. Rule allows plaintiff to assert claims against the third party defendant that meet the same transaction test;
  33. Once third party has been brought in, he and the original defendant become opposing parties thus triggering the counterclaim provisions of 13(a) and 13(b)

II.NECESSARY / INDISPENSABLE PARTY

  1. Steps:
  2. Is Joinder Timely?
  3. Is the presence of the party needed for a just adjudication?
  4. Rule 19 (a)(1) Is the party one that in whose absence, complete adjudication is not possible?
  5. Is complete relief possible?
  6. Rule 19 (a)(2) Does the missing party have an interest that he will be unable to protect if he is not a party to this case?
  7. Rule 19 (a)(2)(i) Would person’s absence impair or impeded he ability to protect that interest
  8. Rule 19 (a)(2)(ii) Would the any of the current parties be subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the absent interest (i.e. defendant having to pay twice)?
  9. If a needed party, is joinder feasible? Rule 19(a)
  10. Does the court have Personal Jurisdiction over the party?
  11. Would joinder destroy SMJ?
  12. Does § 1367 help?
  13. Would joinder raise venues problems?
  14. Should the court “in equity and good conscience “ dismiss or proceed – Rule 19(b)
  15. This prong is at the discretion of the court
  16. Extent of prejudices to the present Party’s that the third party’s absence may bring
  17. Extent that prejudices ma be avoided or reduced by other means
  18. Look for any way to alter/tailor relief to existing parties to curtail damages
  19. The adequacy of judgment without the third party
  20. Wither the plaintiff will have an adequate remedy if the case were dismissed for non-joinder

III.INTERVENTION

  1. Steps – Is NOT compulsory
  2. Application for Intervention Must be Timely –
  3. Factors:
  4. How long has intervener known of his interest before moving to intervene
  5. Whether the intervener’s delay will prejudice an extant party
  6. Whether denial of the intervention will prejudice the absentee
  7. Unusual circumstances affecting timeliness
  8. Would intervention destroy SMJ (diversity jurisdiction)?
  9. Rule 24 (a) If YES, then intervention is NOT permitted
  10. Does the party have Intervention by Right? Rule 24(a)
  11. NOTE: Party seeking intervention bears the burden
  12. Is intervention by right granted by statute?
  13. Does applicant claim a direct interest in a related transaction (or property) subject to adjudication?
  14. If Yes, then either:
  15. Applicant’s interest isn’t already adequately represented; OR
  16. Applicant has a direct significantly protectibleinterest at stake; AND
  17. Non-intervention will impair or impede party’s ability to protect that interest
  18. If NO does the party qualify for permissive intervention? Rule 24(b)
  19. NOTE: Party seeking intervention bears the burden
  20. Is permissive intervention granted by statute?
  21. Is Applicant’s claim related to the main action by question of law or question of fact?
  22. If Yes, then at the court’s discretion
  23. Weigh same factors as under Indispensable Parties
  24. Procedural Aspects – Rule 24(c)
  25. Party seeking intervention must make a Motion to Intervene
  26. Motion must:
  27. State the grounds for intervention; AND
  28. Be accompanied by a pleading describing the claim or defense for which intervention is sought

IV.CLASS ACTION

a.Steps:

  1. Jurisdiction
  2. Personal Jurisdiction
  3. Subject Matter Jurisdiction
  4. Prerequisites for Certification
  5. Numerosity
  6. Commonality
  7. Typicality
  8. Adequacy of Representation
  9. Certification in Type of Class Action
  10. (1) Separate actions by individual members would create a risk of
  11. Inconsistent or Varying Outcomes / awards;
  12. Requires Mutually Exclusive Outcomes; not reconcilable or compatible
  13. OR - Impeding or Impairing the rights of others
  14. e.g. the last to sue would get no recovery because of insolvency
  15. Certification under this section (Rule 23(b)(1) is all or none – either all class members are bound or none are) (members are not allowed to opt out)
  16. (2) Opposing party has acted similarly adverse to the entire class
  17. Certification under this section - Rule 23(b)(2) - is all or none
  18. Injunctive Relief
  19. Typically used for civil rights legislation where parties are seeking a general injunction equally against or for all members of the class
  20. (3) The court finds that
  21. NOTE; here the certification permits members of the class to opt out and bring their claims individually; Typically used to obtain DAMAGES
  22. The facts common to the class are predominate over the fact specific to each individual; AND
  23. A class action would be the best way for fair and efficient adjudication
  24. Factors here are as follows under Rule 23(3)
  25. (A) Interest of members to individually control their own cases
  26. (B) Extent and nature of the litigation involved
  27. (C) Desirability of concentrating the litigation in a particular form
  28. (D) Difficulties likely to be encounters in managing the class action (e.g. expenses, long and prolonged discovery…)
  29. Notice to Class Members
  30. Court specifies method of giving notice
  31. Must provide notice to all members with readily available address
  32. Notice must include
  33. Choice to opt out
  34. Judgment will be binding on all who do not opt out
  35. Member who doesn’t opt out, may enter appearance by counsel
  36. Settlement or Dismissal
  37. Must have approval and court and must give notice to class members

V.DISCOVERY

  1. Steps
  2. Scope of Discovery Standard:
  3. Not privileged
  4. Attorney Client Privilege
  5. Special Company Records or “Trade Secrets”
  6. Work Product
  7. Relevant to a parties’ claim or defense
  8. Reasonably calculated to lead to the production of admissible evidence
  9. Attorney Client Privilege
  10. Privilege applies only if:
  11. The asserted holder of the privilege is or sought to become a client
  12. The person to whom the communication was made
  13. Is a member of the bar of a court, or his subordinate AND
  14. In connection with the communication is acting as a lawyer
  15. AND, The communication relates to a fact of which the attorney was informed
  16. By his client
  17. Without the presence of strangers
  18. For the purpose of securing primarily either
  19. Opinion on law OR
  20. Legal services OR
  21. Some assistance in some legal proceeding
  22. AND not for the purpose of committing a crime or tort;
  23. AND the privilege has been
  24. Claimed (in writing specifying grounds for privilege) AND
  25. Not waived by the client
  26. Work Product
  27. An attempt to secure production so written statements and mental impressions contained in the files and mind of an attorney which are prepared in anticipation of litigation are not to be granted
  28. Often labeling of documents as “Work Product” is only some evidence
  29. Rule 26 (b)(3) - EXCEPTION:
  30. Production may be justified where a party can show:
  31. Substantial need of the materials in the preparation of the party’s case
  32. Must show that prohibition of discovery will prejudice case
  33. AND that he “is unable without undue hardship to obtain the substantial equivalent of the materials by other means”
  34. BURDEN rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order; In support of motion to compel, must show:
  35. WITHOUT EXCEPTION – (even under showing of need and hardship)
  36. Protection is always afforded to all mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of a party concerning the litigation
  37. This is to be distinguished from the facts included in such an opinion, which are discoverable
  38. Mental or Physical Examination
  39. Procedure Under Rule 35(a)
  40. Obtain a court order (by motion) - Requires:
  41. how good cause for the physical or mental examination
  42. Shown that it is a material matter in controversy
  43. “Condition in controversy” is construed narrowly to mean only those for which plaintiff seeks recovery
  44. Then, Must Give Notice to All Parties, specifying:
  45. Examiner
  46. Time and place of Exam
  47. Scope of the Examination

VI.SUMMARY JUDGMENT

a.What is the applicable law?

b.What is the theory on which the movant seeks summary judgment?

  1. If movant has burden of persuasion, the all elements of claim must satisfy standard for SJ; OR
  2. If opposing party has burden of persuasion, can either:
  3. Disprove of an element of the adverse parties claim; OR
  4. Demonstrate a general absence of proof
  1. Court first looks to if moving party has met burden - See Rule 56(c)
  2. Must demonstrate that there is NO genuine dispute of material fact
  3. If meet, opposing party must provide specific facts demonstrating a genuine dispute of material fact
  4. Must demonstrate that there IS a genuine dispute of material fact by pleading specific facts - See Rule 56(e)
  5. Can provide additional evidence to show such a dispute
  6. Rule 56(f) - If unable to respond, can ask for extra time to complete necessary discovery
  7. If non-moving party has met their burden, then deny motion for summary judgment
  8. If non-movant has NOT met their burden, then
  9. Is the moving party entitle to judgment as a matter of law
  10. If so, then under R52 the court MUST write opinion on summary judgment
  11. What is the disposition? Who prevails?

VII.DETERMINING WHAT LAW APPLIES

  1. Steps:
  2. Is there a Constitutional Provision on Point?
  3. Is There a Federal Law or a Federal Rule of Civil Procedure On Point?
  4. What are the possible Rules to Consider
  5. How does the purpose of the Rule apply to the situation at hand?
  6. Is the Rule Intended to Occupy the Field in any way?
  7. If Yes, Proceed to the Rules Enabling Act
  8. If No, Proceed to the Rules Decision Act
  9. The Rules Enabling Act Prong – When There is a Federal Rule of Civil Procedure On Point
  10. Deciding Between a FRCP/Federal Statute of Procedure and State Law
  11. If the federal provision on point is a statute, did Congress intend it to preempt state law?
  12. Whether a federal statute preempts state law depends entirely on the meaning of that federal statute; turns on whether Congress intended the federal statute merely o provide a minimum standard or instead to provide a nationwide uniform standard
  13. Court would have to look to the intent of Congress to answer this question
  14. If statute was intended to be preemptive and it on point and applies, then it applies not only in federal court, but also in state court
  15. If the federal provision on point is a FRCP, then continue
  16. Determining Whether a Federal Rule of Civil Procedure is Valid
  17. FR is valid only if it is constitutional
  18. Substance v. Procedure
  19. Would it change the day-to-day activities of the parties; Affect Primary Acts?
  20. So long as the Rule is “arguably procedural,” or can be “rationally classified as procedural, then there is a presumption of validity inherent in the political adoption process.
  21. If it can be viewed as being integrally related to the claim, however, it can be viewed as substantive
  22. Does the Federal Rule of Civil Procedure Abridge Substantive Rights?
  23. Incidental Effects are permitted, even if quite large
  24. It must substantially impair substantive rights
  25. If the federal rule is arguably procedural and does not abridge substantive rights, then the under the Supremacy Clause, it must be applied
  26. The Rules of Decision Act Prong – When there is No Federal Law On Point
  27. Deciding Between the State Common Law and the Discretion of the Federal Judge or Federal Common Law
  28. These are the “relatively unguided” Erie problems
  29. Substance v. Procedure
  30. If arguably substantive, then apply State Law
  31. Can be something that is integrally related to substance
  32. If ambiguous or questionable, go on:
  33. Outcome Determinative Test
  34. Identify Outcome under each Rule.
  35. Would applying federal law produce a substantially different outcome that denies Equal Protection under the Law?
  36. Goal is avoiding inequitable administration of laws between courts
  37. Prevent different treatment of citizens based upon their residential status (in-state v. out-of-state)
  38. Would applying federal law produce such a different outcome as to induce forum shopping?
  39. Must be a Substantial Difference in providing Predictable Results
  40. If Affects outcome, then apply state law, UNLESS:
  41. Is there a countervailing Federal Interest?
  42. Federal Court’s interest in managing the persons before it
  43. Federal Court’s interest in determining it’s own work load and docket

VIII.RIGHT TO A JURY TRIAL

  1. Steps:
  2. Article I or Article III Court
  3. If Article III, proceed.
  4. If Article I,
  5. Is the right public or private?
  6. If public right → no constitutional right to a jury trial.
  7. Was a proper demand for a jury trial made?
  8. Does the Party have a right to a jury trial?
  9. What is the historical nature of the claim being asserted (equitable or legal)?
  10. What is the historical nature of the remedy being sought (equitable or legal)?
  11. This is the more important prong of the test
  12. NOTE that if Congress assign a public right to an Article III court, the historical analysis still applies

IX.MOTIONS AFTER JURY VERDICT OR JUDGMENT

  1. Steps:
  2. Was the motion being made timely?
  3. If JMOL, was the motion preserved at close of the evidence?
  4. What is the standard of review?
  5. New Trials – Abuse of Discretion
  6. JMOL/ renewal JMOL / SJ – Reasonable Jury
  7. If New Trial Granted, New trial of what elements?
  8. Usually the entire case
  9. Can sometimes split, BUT
  10. If there is overlap, must remand all or else violates Due Process

X.FINAL JUDGMENTS

  1. Claim Preclusion:
  2. Is the party against whom claim preclusion is being used a party to the first suit or a party in privity to the first suit?
  3. If no, then no preclusion or else would violate the person’s right to their day in court
  4. Applies to both offensive and defensive use
  5. Is it transactionally, the same claim?
  6. If no, are there any parts that are the same, to afford issue preclusion?
  7. Was there a valid and final judgment on the merits?
  8. Is full summary judgment or partial appropriate?
  9. Are there any individual damages to be shown?
  10. Issue Preclusion:
  11. Is it an offensive or defensive use of issue preclusion?
  12. Is Mutuality Required or Not? – IS IN THE COURT’S DISCRETION
  13. If Offensive
  14. Could the party have easily joined the claim to the first suit?
  15. Look to whether they had knowledge
  16. Was it convenient to do so?
  17. Are there prior inconsistent judgments that could lead to the mass tort anomaly?
  18. Was there a full and fair opportunity to present evidence and litigate the question?
  19. Look to different court procedures
  20. Was there an incentive to litigate?
  21. Is it the same Issue? (S)
  22. Was the issue actually litigated? (A)
  23. Was there a full and fair opportunity to be heard?
  24. Look to differences in court procedures
  25. Was there an adequate incentive to litigate the issue?
  26. Was the issue decided necessary to the judgment? (N)
  27. Was that judgment final, valid, and on the merits? (D)
  28. Is full summary judgment or partial appropriate?
  29. Are there any individual damages to be shown?