This guide focuses on library and internet resources for researching or studying civil procedure for the NextGen bar exam, the application of the Federal Rules of Civil Procedure, and the sections of Title 28 of the U.S. Code pertaining to district court and appellate jurisdiction, venue, and transfer. Secondary sources, such as civil procedure texts & treatises are included. You will also find suggested print or online study aids. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Note: Both the Federal Rules of Civil Procedure (often) and Title 28 (occasionally) are amended, so students need to remain current on the operative versions of both. The current NCBE NextGen subject listing (outline below) gives us no express guidance on how long following an amendment to the Rules of Title 28 the bar examiners will consider the changes “fair game” for testing.
Examinees are to assume the application of (1) the Federal Rules of Civil Procedure and (2) the sections
of Title 28 of the US Code pertaining to district court and appellate jurisdiction, venue, and transfer.
If a particular topic’s scope is described in this outline, that does not indicate greater importance or
testing frequency of the topic.
Within this outline, there are two types of topics:
Topics with a star symbol * Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
I. Jurisdiction and venue
A. Federal subject-matter jurisdiction
1. Federal question jurisdiction*
This topic includes the well-pleaded complaint rule and the general requirement that the case involve interpretation of the Constitution or laws of the United States or “arise under” the federal law that creates the cause of action.
2. Diversity jurisdiction*
This topic includes citizenship of individuals, the complete diversity rule, citizenship of entities, the amount-in-controversy requirement, and aggregation of claims.
3. Concurrent and removal jurisdiction *
This topic includes the types of cases that are removable (cases that can be brought originally in federal court and cases where the defendant is a citizen of the forum state), as well as the district to which a case must be removed.
4. Supplemental jurisdiction
This topic includes the “same case or controversy” requirement and discretionary factors permitting the court to decline jurisdiction.
B. Personal jurisdiction*
This topic includes the constitutional standards for specific in personam jurisdiction (minimum contacts, “arising out of,” reasonableness) and general in personam jurisdiction (“at home”).Specific jurisdiction includes application in a variety of contexts, such as intentional torts, contracts, “stream of commerce,” and e-commerce claims. General jurisdiction includes application to both individuals and corporations. This topic also includes the application of long-arm statutes, consent, and waiver.
C. Service of process and notice
This topic includes the constitutional requirement of notice, the different ways to serve individuals and corporations, and waiver of service of process.
D. Venue, forum non conveniens, and transfer
This topic includes the two basic circumstances in which venue is proper: where the defendant (individual or corporation) resides or where a “substantial part of” the events occurred. This topic also includes remedies when venue is improper and rules governing transfer of venue on the basis of forum non conveniens.
II. State law in federal court
This topic includes the Erie doctrine as related to the basic difference between substance and procedure and when state law, including state choice-of-law rules, displaces federal procedural rules.
III. Pretrial procedures
A. Preliminary injunctions and temporary restraining orders
This topic includes familiarity with the purpose of temporary restraining orders and preliminary injunctions as tools to maintain the status quo pending adjudication of a case. This topic also includes understanding that preliminary injunctions can become permanent injunctions.
B. Notice pleadings and amended pleadings *
This topic includes notice pleadings and amended pleadings, including the relation-back doctrine.
C. Rule 11 *
This topic includes the requirements of reasonable inquiry, good-faith arguments for changes in the law, and proper purpose, as well as the timing and procedures for Rule 11 sanctions.
D. Joinder of parties and claims
1. Joinder of multiple claims, joinder of parties, counterclaims, crossclaims, third-party practice, and the court’s overriding power to sever. *
2. Intervention under Rule 24
E. Disclosures and discovery
1. Scope and limits of discovery *
2. Rule 26(f) conference and planning for discovery *
This topic includes a general understanding of the parties’ obligation to confer to develop a proposed discovery plan.
3. Discovery tools and mechanisms, including e-discovery *
This topic includes depositions (including corporate representative discovery), interrogatories, requests for production and inspection, and physical and mental examination. This topic also includes how to handle electronically stored information, including metadata and large volumes of e-discovery material.
4. Discovery motions
This topic includes motions for protective orders, the process for claiming privilege, and motions to compel disclosure or response. This topic also includes understanding that a party may be subject to sanctions for failure to comply with discovery rules, but not the particulars of which types of sanctions are appropriate.
IV. Preserving the right to a jury trial
This topic includes the need to preserve the right to a jury trial in the complaint and the consequences of failing to do so (waiver).
V. Dispositive motions
A. Motion to dismiss for failure to state a claim *
B. Summary judgment motion *
C. Motion for judgment as a matter of law (directed verdict and judgment notwithstanding the verdict)
VI. Judgments
A. Default judgment *
B. Effect of judgment *
This topic includes the elements of claim and issue preclusion.
VII. Appealability and review
A. Final judgment rule
B. Availability of interlocutory review
C. Standard of review on appeal
This topic includes the distinctions between levels of discretion given to the appeals courts in reviewing trial court findings (de novo, clearly erroneous, abuse of discretion, plain error, and harmless error).