Master of Laws (LLM) U.S. Civil Procedure and Litigation Syllabus

Which defenses must be raised in the first Rule 12 response or be waived under Rule 12(h)?

The four waivable defenses: lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. They must be raised in the first motion or responsive pleading or they are waived.

How long does a defendant generally have to serve an answer after being served, and what is the effect of a Rule 12 motion on that deadline?

21 days after service of the summons and complaint (60/90 days if waiver of service is used). A pending Rule 12 motion postpones the answer deadline until 14 days after the court's denial or postponement of the motion.

What is the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim?

The court accepts all well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff's favor, dismissing only if the complaint fails to state a plausible claim for relief as a matter of law; it tests the pleading's legal sufficiency, not the evidence.

Distinguish compulsory joinder of parties (Rule 19) from permissive joinder (Rule 20).

Rule 19 requires joinder of a 'necessary' party whose absence would impair complete relief or the absent party's interests (and asks whether the case must be dismissed if joinder is infeasible). Rule 20 permits joinder of parties when claims arise from the same transaction/occurrence and share a common question of law or fact.

What is a compulsory counterclaim under Rule 13(a) and what happens if it is not asserted?

A claim the defendant has against the plaintiff arising out of the same transaction or occurrence as the plaintiff's claim. It must be pleaded in the same action; failure to assert it generally bars the defendant from raising it later in a separate suit.

What is impleader (third-party practice) under Rule 14?

A defending party (third-party plaintiff) brings in a non-party (third-party defendant) who is or may be liable to it for all or part of the plaintiff's claim - i.e., for indemnification or contribution (derivative liability).

What is interpleader and what problem does it solve?

A device (Rule 22 or statutory under 1335) allowing a stakeholder holding property or funds subject to multiple competing claims to join all claimants in one action, avoiding multiple liability and inconsistent obligations on the same stake.

What are the four prerequisites for any class action under Rule 23(a)?

Numerosity (class so numerous joinder is impracticable), commonality (common questions of law or fact), typicality (representatives' claims are typical of the class), and adequacy (representatives will fairly and adequately protect the class).

Describe the three types of class actions certifiable under Rule 23(b).

(b)(1) where separate actions risk inconsistent results or impair absentees' interests; (b)(2) where the defendant acted on grounds applicable to the whole class, making injunctive or declaratory relief appropriate; and (b)(3) where common questions predominate and a class action is superior - the only type requiring notice and an opt-out right.

In a Rule 23(b)(3) class action, what rights must absent class members receive?

The best notice practicable under the circumstances, including individual notice to identifiable members, and the right to opt out (be excluded) from the class and the binding effect of any judgment.

What is the amount-in-controversy and diversity rule for class actions under the Class Action Fairness Act (CAFA)?

CAFA grants federal jurisdiction where the aggregate amount in controversy exceeds $5,000,000, there is minimal diversity (any class member diverse from any defendant), and the class has at least 100 members.

When may a party amend a pleading once as a matter of course under Rule 15(a)?

Within 21 days after serving it, or - if the pleading requires a response - within 21 days after service of a responsive pleading or a Rule 12(b)/(e)/(f) motion, whichever is earlier. Otherwise amendment requires the opposing party's consent or leave of court, which is freely given when justice so requires.

Under Rule 15(c), when does an amendment changing a CLAIM relate back to the date of the original pleading?

When the amended claim arises out of the same conduct, transaction, or occurrence set out (or attempted) in the original pleading, so it is treated as filed on the original date for statute-of-limitations purposes.

What are the requirements for an amendment changing a PARTY (defendant) to relate back under Rule 15(c)(1)(C)?

It must arise from the same transaction/occurrence, and within the Rule 4(m) service period the new party must have (1) received notice of the action so it is not prejudiced and (2) known or should have known that, but for a mistake about identity, it would have been named.

What is the general scope of discovery under Rule 26(b)(1)?

Parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case; information need not be admissible at trial to be discoverable, but must be relevant and proportional.

List the principal discovery devices available under the Federal Rules.

Depositions (Rules 30/31), interrogatories (Rule 33), requests for production of documents/ESI and inspection (Rule 34), physical or mental examinations (Rule 35), and requests for admission (Rule 36).

What is the work-product doctrine under Rule 26(b)(3)?

Materials prepared in anticipation of litigation by or for a party or its representative are protected; they are discoverable only on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship. Opinion work product (an attorney's mental impressions, conclusions, and legal theories) receives near-absolute protection.

What standard governs discovery of a testifying expert versus a non-testifying (consulting) expert?

Testifying experts must provide a written report and may be deposed (Rule 26(a)(2), 26(b)(4)(A)). Facts/opinions of a non-testifying expert retained in anticipation of litigation are discoverable only in exceptional circumstances where equivalent information cannot otherwise be obtained (Rule 26(b)(4)(D)).

What is the summary judgment standard under Rule 56(a)?

A court grants summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law - i.e., no reasonable jury could find for the nonmovant on the evidence.

On a summary judgment motion, how must the court view the evidence and resolve factual inferences?

In the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor; the court does not weigh evidence or make credibility determinations (Anderson v. Liberty Lobby).

How does the summary judgment burden shift when the movant does NOT bear the burden of proof at trial (Celotex)?

The movant may discharge its burden by pointing out an absence of evidence supporting an essential element of the nonmovant's case; the nonmovant must then come forward with specific facts showing a genuine issue for trial and cannot rest on mere allegations.

What is a default judgment and what are the two steps to obtain one under Rule 55?

A judgment against a party who fails to plead or otherwise defend. First, the clerk enters a default (Rule 55(a)); second, judgment is entered - by the clerk if the claim is for a sum certain, otherwise by the court (Rule 55(b)), which may require a hearing on damages.

Distinguish a voluntary dismissal under Rule 41(a) from an involuntary dismissal under Rule 41(b).

Rule 41(a) is the plaintiff's own dismissal - once without prejudice before an answer/MSJ, otherwise by stipulation or court order. Rule 41(b) is dismissal by the defendant's motion for the plaintiff's failure to prosecute or comply with the rules/orders and generally operates as an adjudication on the merits (with prejudice).

What is the 'two dismissal rule' under Rule 41(a)(1)?

A second voluntary dismissal by notice of an action based on or including the same claim operates as an adjudication on the merits (with prejudice), where the plaintiff previously dismissed the same claim in any court.

When does the Seventh Amendment guarantee a right to a jury trial in federal civil cases?

In 'suits at common law' - i.e., for legal claims (typically those seeking money damages) but not equitable claims (injunctions, specific performance). The historical-test plus remedy analysis governs, and where legal and equitable claims mix, legal issues are tried to a jury first (Beacon Theatres / Dairy Queen).

How and when must a party demand a jury trial under Rule 38?

By serving a written demand no later than 14 days after the last pleading directed to the triable issue is served, and filing it; failure to timely demand a jury waives the right.

What is a peremptory challenge and what is the key constitutional limit on its use (Batson)?

A challenge to strike a prospective juror without stating a reason (limited in number, generally 3 per side in federal civil cases). Under Batson (extended to civil cases by Edmonson), peremptory strikes may not be used to discriminate on the basis of race or gender.

What is a motion for judgment as a matter of law (JMOL) under Rule 50(a) and when may it be made?

A motion arguing that a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmovant on an issue. It may be made any time after the opposing party has been fully heard on the issue but before the case is submitted to the jury.

What is a renewed motion for judgment as a matter of law (Rule 50(b)), and what is the prerequisite to filing one?

A post-verdict motion (formerly JNOV) filed within 28 days after entry of judgment, arguing the evidence was legally insufficient. It is only available if the movant previously made a Rule 50(a) motion before the case went to the jury.

On what grounds may a court grant a new trial under Rule 59, and how does its standard differ from JMOL?

Grounds include verdict against the great weight of the evidence, excessive/inadequate damages, prejudicial error, misconduct, or newly discovered evidence. Unlike JMOL (which views evidence favorably to the nonmovant and ends the case), on a new trial the judge may weigh evidence and assess credibility, and a grant simply orders a retrial. Motion due within 28 days of judgment.

State the elements of claim preclusion (res judicata).

(1) A valid, final judgment on the merits, (2) the same claim/cause of action (same transaction or occurrence) in both suits, and (3) the same parties or those in privity. It bars relitigation of claims actually litigated and those that could have been raised.

State the elements of issue preclusion (collateral estoppel).

(1) The same issue was actually litigated and (2) actually determined in the prior action, (3) the determination was essential to a valid, final judgment, and (4) the party against whom preclusion is asserted had a full and fair opportunity to litigate the issue.

What is the difference between offensive and defensive nonmutual issue preclusion?

Defensive use lets a new defendant use a prior judgment to prevent a plaintiff from relitigating an issue the plaintiff lost before. Offensive use lets a new plaintiff use a prior judgment to establish an issue the defendant lost before - permitted only at the trial court's discretion and where fair (Parklane Hosiery).

What is the final judgment rule and which statute embodies it?

Under 28 U.S.C. 1291, federal courts of appeals generally have jurisdiction only over appeals from final decisions - those that end the litigation on the merits leaving nothing but execution of the judgment. Interlocutory orders are usually not immediately appealable.

Identify three exceptions allowing appellate review before a final judgment.

(1) Interlocutory appeals of injunctions and certain orders under 28 U.S.C. 1292(a); (2) discretionary 1292(b) certification of a controlling question of law where there is substantial ground for difference of opinion; and (3) the collateral order doctrine (Cohen) for orders conclusively deciding an important issue separate from the merits and effectively unreviewable on final appeal. Rule 54(b) partial final judgments are also appealable.

What standards of review do appellate courts apply to questions of law versus findings of fact?

Questions of law are reviewed de novo (no deference). A trial court's findings of fact are reviewed for clear error (Rule 52(a)), and discretionary rulings (e.g., evidentiary rulings, new-trial grants) are reviewed for abuse of discretion. Jury fact findings receive even greater deference under the Seventh Amendment.