Civ Pro 2

• Supplemental Jurisdiction (1367)


  Extends SMJ for additional claim that does not alone invoke SMJ, but the additional claim shares a common nucleus operative fact with a claim that does properly invoke SMJ
• Supplemental Jurisdiction


  1. CNOF= Same transaction or occurrence as the underlying claim

  2. Result = Additional claim can be tied together as part of the same case or controversy

  3. Includes claims involving joinder of additional parties

  4. Court always has discretion

  5. Will allow in claims by defendants
• Exceptions where Supplemental Jurisdiction does not apply in diversity cases

  • Permissive counterclaims with no CNOF
  • Claims by plaintiffs against third party defendants
  • Claims by plaintiffs against people who want to intervene
  • Claims by plaintiffs against people proposed to be joined who are indispensable
  • Claims by plaintiffs against people proposed to be joined for permissive joinder
  • Claims by new plaintiff joined under required joinder
  • Claims by new plaintiff joined under intervention
• Court discretion to decline supplemental jurisdiction over state claims

  1. The claim raises a novel or complex issue of state law

  2. The claim substantially predominates over the claims of which the district court had og jx

  3. The fed DC has dismissed all claims over which it had og jx

  4. In exceptional circumstances where there are other compelling reason for declining jx
• Permissive Joinder (FRCP 18)

  A party asserting a claim, counterclaim, crossclaim or third party claim may join as independent ort alternative claims and as many claims as it has an opposing party. Here the claim maybe unrelated, however, if claim is transactionally related failure to bring some could preclude from bring them later. One must still have subject matter jurisdiction over all claims that are being brought. Court has the discretion to order separate trials.
• To join a plaintiff in Permissive Joinder

  Supplemental Jx is permitted for amount in controversy but must still have complete diversity between P's and D's
• To join a defendant in Permissive Joinder

  Must have complete diversity between P's and D and each claim must be over $75K for AIC
• Required Joinder (FRCP 19)

  To determine whether a party must be joined the party must be a required party, joinder must be feasible and if joinder is not feasible, the court should weigh factors to determine if the court can proceed without the party of it should dismiss the case
• Required Joinder


  1. Court cannot accord complete relief to existing parties with out the party or, that person can't protect their own interest if not joined such as an impaired or impeded interest or, Existing parties may be subject to a substantial risk of multiple or inconsistent obligations without joining the person because of the person; interest. The new party CANNOT destroy diversity.

  2. Must have PJ and Venue.

  3. Subject Matter jurisdiction there must be a federal question or diversity. (analyze which there is).
• Dispensable Party in Required Joinder

  If joinder is not feasible the court must in equity and good conscience decide if they should continue with existing parties or dismiss the case. The factors to determine this include: Prejudice to existing parties or missing person, Prejudice could be lessened by alternatives i.e. such protective provision, Whether judgment would be adequate without the person, Whether the plaintiff would have an adequate remedy if case dismissed.
• Impleader Joinder (FRCP 14)


  A defending party can join a non-party who is or may be liable for all or part of the claim against it. The original plaintiffs MAY assert any claim against a third party defendant if the transaction or occurrence. The defending party has 14 days from the time it filled its aner to serve the summons and complaint on the new party. They MUST assert any defense/claims they have against the third party plaintiff and counterclaims arising from the transaction or occurrence. But they MAY assert any defense against a third party plaintiff or crossclaims against another third party defendant.
• Subrules for Impleader Joinder

  • Contribution and indemnification are two separate remedies
  • Contribution is based upon the common, though not necessarily identical, liability of two or more actors for the same injury
  • Indemnity enables one tortfeasor to shift the entire burden of the judgment to another
  • Indemnity will not be allowed when both parties have been negligent
  • State law must allow for contribution or indemnification for D to assert such a claim against a 3rd party (FRCP 14 merely accelerates a claim but does not create one)
• Intervention Joinder (FRCP 24)


  • Intervention of right requires a court to permit a non—party to intervene who has an unconditional right by federal statute or claims an interest in the property or transaction that is subject matter of the pending suit and disposition in their absence will impair or impede their ability to protect their interest.
  • Permissive intervention allows a court to permit a non-party to intervene who has a conditional right by federal statute or has claim or defense that shares with the main action a common question of law or fact.
• Factors for Permissive Intervention

  How long the intervenor knew of her interest before moving to intervene, Whether the intervenor's delay will prejudice the extant party, Whether denial of innervation will prejudice the absentee party, Any unusual circumstances affecting a finding of timeliness
• Interpleader Joinder (FRCP 22)


  • Federal Interpleader Rule: Here just the stakeholder must be diverse from the other claimants. And AIC must be over $75K.
  • If brought by the plaintiff, the plaintiff can join defendant's claims that might expose the Plaintiff to multiple liabilities such as: the claims/title of the claimant do not have to be identical, and the plaintiff can also deny liability in whole or part to any or all of the claimants.
  • If brought by the defendant then the defendant is exposed to similar liability and may seek interpleader through a crossclaim or counterclaim. Must have SMJ, Venue and PJ for this.
• Statutory Interpleader Rules


  Here for subject matter jurisdiction diversity is met if any two adverse claimant are citizens of different states and the AIC is $500 or more.
• An insurance company does not have to wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to benefit from federal interplead.
• Counterclaims


  • Compulsory counterclaims arise from the same transaction or occurrence as the original claim. Failure to raise a compulsory counterclaim waive the right to assert the claim later. Supplement jurisdiction will extend to compulsory counterclaims.
  • Permissive counters claims is any claim that does not arise from the transaction or occurrence that a party has against an opposing party. A party is not required to assert a permissive counterclaim and supplemental jurisdiction will not extend to permissive counterclaims.
• Crossclaims


  Claims by one party against another party of the same side of litigation. These claims against a co-party may be asserted if arise out of he same transaction or occurrence tat is of the subject of the original action or counterclaim.
• Class actions


  • One or more members of class may sue or be sued as representative of the whole class if all of the following requirements are met: Numerosity- Class is so numerous that joinder of all members is impracticable, Commonality – Must be question of law or fact common to class, Typicality – claims/defense of representative must by typical of class, Adequacy – representatives must fairly and adequately protect the interest of class.
• Types of class actions

  • Prejudice – must be separate actions if inconsistent result or incompatible standards or impairs or impedes member interest
  • Injunctive or Declaratory relief sought
  • Damages sought but question of law or fact common and predominate over individual claims
• Class action procedures


  The court determines whether they certify the class which are appealable, they may direct notice to the class, and can also divide the class into subclasses.
• CAFA


  AIC must be over $5 million (aggregation is okay here), Diversity is any class member is diverse from ANY defendant, At least 100 members, Court can refuse to hear if less and one third or more than two third of the plaintiffs are from same state as the defendants, For recovery of coupons, attorneys fees must be based on the value to the class member of the coupons that are redeemed, Expert testimony is allowed to show the actual value to the class embers of the couples redeemed, Court can order unclaimed coupe to be distributed to charity or government, Removal – allowed by D and can remove even if in own state, All members are bound.
• Mandatory Initial Disclosures


  • Identity and contact information of those w/discoverable info that may be used to support a claim/defense (unless to impeach only)
  • Copies/descriptions of all documents, electronically site info and tangible evinced in its possession, custody or control that may be used to support a claim defense
  • Damages computations with supporting documentation
  • Copies of insurance agreements that may pay for all or part of the judgment
• Other required disclosures


  • Experts: Identity and contact info of expert retained or employed, Expert's final written draft, Parties may depose expert witness expected to be called at trial
  • Pretrial: Lost of al non-expert witness's intended/may be called, Witness testimony presented through deposition or transcript, Lost of al documents, physical evidence and/pr exhibits, 14 days to objects to evidence here
• Discovery timing


  Can't seek discovery until after discovery conference (unless court order or stipulation), Exception – a party can file a request to produce documents, ESI, access to land under after 21 days summons and compliant BUT request is consider served of as discovery conference, Discovery can be in any order
• Supplemental Disclosures

  Parties must supplement disclosers and Reponses needed to correct or update information in a timely manner
• Protective Orders


  A person/party from who discovery is sought may move for a if they certify that they have in good faith conferred or tried to confer with out parties to resolve the dispute without court action, The court may for good cause issue an order to protect a person/party from annoyance, embarrassment, oppression or undue burden expense including forbidding the disclose or discount, limiting the discovery, or specifying the terms for discovery
• Interrogatories


  Written Q's that
• Seeking deposition


  1. Wants it before time specified

  2. Deponent is in person

  3. Must serve with time and place and deponent's name and address method of recording

  4. Must life materials if subpoena duces tecum for documents

  5. Cross examine deponents okay (14 days if written) redirect Q's (7 days if written), record Qs (7 days if written), objections can be made (or waived)
• Uses at deposition at trial

  • Allowed if deponents was present or represented at the deposition
  • Subject to federal rules of evidence
  • Can be used for impeachment purpose
  • Can use if the witness in unavailable
  • Objection waived if they were not timely asserted during the deposition
  • If deposition is offered into evidence at trail, the transcript must be provided
  • If used in jury trial, the depositions testimony must be presented in a non transcript from per any party's request
  • An adverse party may use the deposition of a party or anyone who was the party's officer, director, etc for any purpose
• Interrogatories

  • Written Q's that require a written repose
  • Can only be sent to parties – no non parties
  • Q's may relate to any-non privileged relevant matter related to the case
  • 25 Q's including subparts – can be modified by court order
• Interrogatory responses


  1. Party can specify record, ESI, where in for can be found in not too burdensome to uncover

  2. Responses must be singed under oath

  3. Responding party has 30 days to respond

  4. Responding party can object (must state grounds)

  5. Responses can be used in court so long as okay under FRCP
• Production of Documents and Things

  • Permits a party to require another party to produce for inspection, copying or testing all relevant document or other tangible things
  • May compel a non-party to produce documents etc. if subpoena
  • Includes, ESI, drawing, photographs, sound recording, images, data
  • Also allows entry onto land or other property possessed or controlled by responding party
  • Only applies to items in responding party possession custody or control
  • The request must described each item or category with reasonable particularity and a time, place and manner to inspect
  • The original request may specify the form in which ESI is to be produced
• Production of Documents and Things responses

  1. Responding parties has 30 days or 30 day from discovery conference

  2. Responding party can object stating grounds with specificity

  3. Responding party can produce ESI in form usually maintained in business or per request

  4. Need not responded with info in more than one from
• Physical and Mental Examinations


  • The court may order a party, by a suitable licensed or certified examiner, when the health is in controversy
  • The party who moved for the examinations select the medical pro
  • The party against whom the examination order was issued or the person examined can request the examiner report
  • Once report is requested, they waive their right to any privileges concerning the examination
  • Requesting party can obtain copies of loke reports of all earlier or later examinates on the same condition
• Requests for admissions

  • Used to determine what issues are in dispute
  • Written request for another party to admit the truth to facts, application of law to fact or opinions about either and genuineness of any descried documents
• Requests for admissions responses

  1. 30 days to reply

  2. Party can answer or object (must be signed by party or attorney)

  3. Can admit or deny

  4. Failure to respond = admission

  5. A matter admitted in conclusively established (can amend with court permission)
• Parties may stipulate to other procedures governing discovery
• Sanctions for failure to make disclosures or cooperate in discovery


  • If there is good faith effort to coordinate the party alleging a lack of cooperation may make a motion to the court to impose sanctions
  • Sanctions for when a party refuse to appear, answer, or fails to participate