Civil Procedure

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Civil Procedure Outline

In which court should suit be brought?

Does the Court have Subject Matter Jurisdiction?



Diversity Jurisdiction

1. Article III

a. States the maximum bounds of the diversity jurisdiction of federal courts

i. Policy:

1. Foreign Policy issues (ambassador, maratime) ; we want

federalized control over how we represent ourselves

2. State v State ; to resolve jurisdictional / fairness issues

3. Smooth functioning of federal govt (if fed govt is party;)

b. Diversity requirement in Article III is minimal diversity

i. One P from a different state than one D

ii. This ruling came in 1967 after many years of uncertainty on the

maximum bounds of Art. III in diversity cases.

c. Fed cts have original, but not exclusive, jurisdiction over diversity cases

d. * note – minimal diversity used in some situations – cases of mass

accident (75+ deaths) or in big money class action ($5mil+)

2. Congress granted lower fed cts authority to hear some types of diversity cases.

Current statutory grant is 28 U.S.C. § 1332

a. In 1806, Scotus ruled that the relevant statutory grant of diversity

jurisdiction required complete diversity (Strawbridge v. Curtis). That

standard remains today.

i. Every P could sue every D in fed ct.

ii. Note that both Art. III and 1332 have the same wording for

―between citizens of different states‖ yet have different meanings!

3. 28 U.S.C. § 1332

a. *general standard – every P can sue every D (minimal – one P citizen o fa

a diff state than one D)

b. one of the #ed paragraphs in 1332(a) must describe the case

i. citizens of different states

ii. citizens of a state and citizens of a foreign state

iii. citizens of different states (in which citizens of a foreign state are

add‘l parties)

1. *its this provision that suggests 1332(a) requires complete

diversity; if the req was minimal, this provision would be

superflous as those cases would fall under (a)(i) anyways

2. but not, say PUK v. D1VA +D2JP

iv. a foreign state as plaintiff and citizens of a state or different states

c. amount in controversy req > $75k

i. Based on good faith showing by plaintiff at time of filing (can add

sums from diff claims if state law allows it) (A.F.A. Tours, Inc. V.

Whitchurch)

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ii. One P can always aggregate claims against one D. Multiple Ps can

aggregate againts one D if single indivisible harm. One or more Ps

can never aggregate claims against multiple Ds.

1. If one P satisfies amount, other Ps‘ claims (and Ds‘

counterclaims) do if reach 1367 jurisdiction (Exxon v.

Allapattah) b/c AIC is a minimal requirement… except AIC

still applies for parties joined under rules listed in 1367c.

iii. If P asking for injunctive relief, ct. has to try to value that.

iv. If recovery is less than 75k, ct. may require winner to pay court

costs (either their own or both parties).

d. 133d  jurisdiction over class actions if $5mil and mininal diversity

4. When does diversity matter?

a. At the time of the filing (Mas v. Perry)

b. Diversity unaffected by subsequent changes.

5. How do you determine diversity for puproses of 1332?

a. Citizens

i. Before 1988: Citizen of U.S. + Domiciled in that state

ii. After 1988: Legal Permanent Resident + Domiciled in that state

b. What is a domicile?

i. ―true, fixed, and permanent home‖ to which a party has an intent to

return to; keep old domicile until new one aquired – Mas v. Perry

c. 1332c1  corp is citizen of both:

i. where it‘s incorporated

ii. principle place of business

1. ―nerve center test‖ – locus of the corporate decision-

making

2. ―total activity test‖ – considers all circumstances

surrounding a corp‘s business activities.

d. Unincorporated associations:

i. Every state where one of their members is a citizen

6. 1988 Amendment (LPR citizen of state domiciled in)

a. Goal was to equalize rights between citizens and LPR (who could filed in

fed ct or state ct) and to reduce pressure on fed workload

i. Hypo: LPR(P)MA v. D MA in fed ct?

1. Before allowed; now, not allowed (goal of statute!)

ii. Hypo: LPR(P)MA v. LPR(D)VA in fed ct?

1. This is allowable under plain language of statute but

unconstitutional under Art. III b/c new definition of LPR

only concered w/ statute, not Art III.

iii. Hypo: LPR(P)MA v. D1VA +D2UK in fed ct?

1. Before, not allowed. Now, allowable under Art. III

a. 3rd Cir  allow b/c of plain language

b. D.C. Cir  disallow b/c of congressional intent

(and constitutional issues in Hypo #2)

7. Miminal Diversity – Policy

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a. Pros: Helps us answer questions of nat‘l law (i.e. consumer protection,

medical malpractice, corporate responsibility), Some prejudice against

out-of-state litigants might still exist

b. Cons: unnecessary and expensive federal exercize of power; congestion

they cause in fed cts; erie problems; interferes with state autonomy;

retards development or reformation of state law



Federal Question Jurisdiction

1. Maximum Bound  Article III

a. A case in which federal law is a relevant ingrediant in the cause of action

arises under Art. III (Osborn v Bank of US – 1824)

i. Ruling based on phrase ―The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made…‖

b. A case in which federal law is a relevant ingrediant in the defense to the

cause of action arises under Art. III (Cohens v Virginia – 1821)

2. Statutory Grant  Act of 1875 – Congress gave federal district courts original

jurisdiction over civil suits ―arising under‖ federal law. [Rule 2: If case arises under

federal law, either plaintiff or defendant could remove case from state court]

a. Act of 1887 – Amended Act of 1875 so that only defendant can remove a

case from from state court [if case arises under federal law].

3. Evolution of Law  How have courts interpreted the prase ―arises under‖ federal law

for purposes of the statutory grant (now 28 U.S.C. § 1331)?

a. A plaintiff cannot get into federal court based on an anticipation of a

federal defense or an ancipitory federal rebuttal to a defense. (Louisville v

Mottley –1908)

i. ―well-pleaded complaint rule‖ – a case only arises under fed law

when plaintiff‘s statement of his own cause of action is based upon

those laws.

1. Defense cannot remove case to fed ct b/c of a federal

defense. That case can get to Scotus, however, by way of

appeal from the highest state ct.

a. D can remove if P‘s complaint arises under fed law.

D and P have equal power to determine location

regardless of the circumstance.

2. Rule also applies to declaratory judgment (where potential

D seeks declaration from ct. to avoid lawsuit) (Skelly Oil)

b. Originally, Scotus said a suit can only ―arise under‖ 1331 if the cause of

action arises under federal law. (American Well Works Co. v Layne &

Bowler Co.)

i. Known as Holmes creation test

1. For example, a claim does not ―arise under‖ federal

jurisdiction when it is based on a federal law that authorizes

the claim but relies on state law to determine the substance

(Shoshone Mining Co. v. Rutter – 1900)

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ii. Later said a suit can also ―arise under‖ 1331 (even if the cause of

action was state-created) if the right to relief depends upon the

construction or application of federal law. (Smith v. Kansas City

Tile and Trust Co)

c. A state law cause of action that is parallel to what a federal statute bars

does not ―arise under‖ federal law. (Merrill Dow v Thompson – 1986)

i. Reasoning  Decision by Congress to not authorize a federal

cause of action implies they don‘t consider the presence of a

claimed violation of that statute in a state cause of action as

sufficienctly ―substantial‖

ii. Synopsis  tort claims under state law (for drugs that deformed

kids) + fed. statute violation in labeling the drug. Tort claim not

applicable b/c fed statute bars private cause of action. Statute

violation not a substantial enough question of fed law.

iii. Merrill Dow is a statutory interpretation of a particular statute and

the ―shadow‖ they case on the proper application of 1331.

4. Summary  Two ways 1331‘s grant of ―arising under‖ jurisdiction in MORE

LIMITED THAT THE CONSTITUTION WOULD PERMIT:

a. 1331 has been understood to focus on a ―well-pleaded‖ version of the

plaintiff‘s complaint.

i. well laid-out

ii. ignores preemptory rebuttals to defense‘s answer

iii. must have substantive federal issue as a cause of the complaint

b. Not just any substantive federal issue in the complaint will do. For a

claim to ―arise under‖ federal law w/in meaning of 1331, the well-pleaded

complaint must establish ―either that federal law creates the cause of

action or that the plaintiffs right to relief depends necessarily on resolution

of a substantial question of federal law.‖ (Federal Transportation Board v

CLVT )

5. Prof‘s Merril Dow Hypothesis  When a P bases an element of a state-law cause of

action on D‘s violation of a duty created by a fed statute, and when the fed statute

does not give a P a cause of action for breach of duty, the presence of the fed issue in

the plaintiff‘s complaint ordinarily will NOT be enough make the case ―arise under‖

fed law w/in the meaning of 1331.

a. Exception  if element of cause of action (and thus right to relief)

depends on construction of fed law and the issue is ―substantial‖ enough

i. For example, govt. interest in providing a federal forum for tax

litigation (Grable)

1. Grable court also considered fact that Congress didn‘t have

an opportunity to create that cause of action.



Supplemental Jurisdiction

1. Terminology  Pendant (archiac) + Ancilliary (archiac)  Supplemental (today)

a. Pendant – plaintiff adds claim lacking federal subject matter

b. Ancilliary – defendant adds claim lacking federal subject matter

2. 28 U.S.C. § 1367

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a. 1367a  Supp jurisdiction available (over fed or diversity cases) when the

federal cts have ―original jurisdiction‖ over the original claim and the

other claims are so related "they form part of the same case or controversy

under Article III"

i. Determined through Gibbs test – Do all claims arise under a

common nucleus of operative fact?

1. Two grounds = federal + state. One cause of action.

Result: Federal case, as long as federal issue has ―sufficient

substance‖

2. Fed ct can still adjudicate case after fed claim thrown out!

(Gibbs)

ii. rationale: Article III grants jurisdiction over ―cases,‖ not ―claims‖

1. Congress cannot (generally) go father than the Gibbs test,

which interpreted Art III

b. 1367 applies to both pendant claim (adding add‘l claim) and pendant

party (adding add‘l party) jurisdiction

i. Pendant Claim Jurisdiction

1. GibbsTN v. UnionTN

a. Count I: federal cause of action under LMRA

b. Count II: related claim under state tort law

ii. Pendant Party Jurisdiction

1. PMA v. D1MA + D2MA

a. Count I: PMA v. D1MA (federal cause of action)

b. Count II: PMA v. D2MA (related state-law claim)

iii. Previously, Scotus had interpreted the relevant statutes to go less

far in conferring pendant party jurisdiction than it had in conferring

pendant claim (Finley, Kroeger).

3. Supplemental Jurisdiction + Amount in Controversy (AIC)

a. Plaintiff A meets AIC req, Plaintiff B doesn‘t. Federal Case?

i. Yes. The AIC req is a minimal req (i.e. one party has to have it)

not a complete req. (Exxon-Mobil v Allapattah Sevices)

ii. Reasoning  AIC req has a different purpose than diversity req

(even though from same statute): to ensure that a dispute is

sufficiently important to warrant fed ct attention.

4. 1367b  CARVE OUT

a. Cuts back on pendant party juris if fed ct juris over anchor claim is based

entirely on 1332 (diversity). Dct does not have supp juris over any claims:

i. Claims by Ps against ppl made parties under:

1. Rule 14, 19, 20, 24

a. This coedified Kroeger, where scotus rejected a

claim between non-diverse P and impleaded TPD

ii. Also claims by new Ps who are potential parties b/c of 19 or 24

iii. Does not apply to Ds!

b. Example  P sues power co when husband dies on power line. Power co

impleads crane co with Rule 14. Count against power co dismissed, crane

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co proves citizen of same state as P. Scotus says no SMJ over crane

count. (Owen Equipment & Erection Co. v. Kroger)

i. Congress made 1367b to coedify this ruling. In fact, after 1367, ct

wouldn‘t have juris even if count against power power co wasn‘t

thrown out.

ii. Policy: Try to stop Ps from gaming system (by waiting for D to

implead a 3rd party who P couldn‘t originally bring into fed ct.)

c. **NOTE – 1367 confers supp juris over ANY claims, fed or diverse, that

destroy diversity or not, as long as they pass Gibbs test. 1367b takes them

away in unique circumstances, but does not discuss Ds making claims

against 3rd parties. Thus, a D could successfully bring a state counterclaim

that doesn‘t meet the AIC against a diversity-destroying TPD under Rule

13 (or implead someone under Rule 14) and it would be OK.

5. 1367c  Discretionary provisions:

a. Dct has option to decline to exercise jurisdiction if:

i. novel/complex issue of state law

ii. State count(s) predominates over fed count(s)

iii. Dct already dismissed fed count(s)

iv. ―other compelling reasons‖

b. If does not exercise supp jurisdiction, still must adjudicate anchor claim

c. Standard of review

6. Three strange results produced by a straightforward reading of § 1367:

a. In a case with permissive joinder of add‘l parties, P1MA, $100K + P2MA, $50K

v. DNY will be treated differently than PMA v. D1NY, $100K + D2NY, $50K

i. No supp juris over claim against D2 in case 2 b/c 1367b carve out

disallows supp juris over claims by Ps against ppl made party

under rule 20 (in cases of diversity). Does allow supp claims by

new Ps made party under rule 20 though.

b. Statutory treatment of intervention (Rule 24) suggests this asymmetry was

unintended. In that case, cts would not have supp juris over new Ps claim.

c. Court will have supp juris over P1MA, $100K + P2NY v. DNY where P2 joined

under Rule 20 and his count satisfies Gibbs test.

i. This would erode diversity jurisdiction!

ii. Scotus has accepted anomalies A and B (see Exxon-Mobil) but has

hinted they will not accept anomaly C.

7. Prof Phander believes we can interpret the rules a different way. He argues

1367(a) doesn‘t confer jurisdiction over case (a) because the presence of the non-

diverse party destroys the court‘s original jurisdiction over the first party.

a. Some on Scotus (Kennedy) have also expressed hesitancy about the plain

reading… but others are equally wary of construing constitutionally valid

statutes against their plain meaning.



CHECKLIST FOR SUPPLEMENTAL CLAIMS

1. Could this supplemental claim be brought under federal jurisdiction on its own?

b. Must satisfy two conditions:

i. Comes within statutory grant of jurisdiction (any statute)

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ii. Comes within jurisdiction of Article III

2. If case could not be brought as stand-alone lawsuit, can it be brought in under

supplemental jurisdiction statute 1367?

c. Must have:

i. Relation to anchor claim (Do the claims share a common nuculeus

of operative fact)

ii. Survives carve out in 1367b

3. Must go through this analysis for each claim – and it doesn‘t matter who

(plaintiff, defendant) is asserting it.

d. Any time Dct is asked to do something (declaratory judgment, injuctive

releief, whatever), you must ask if it has subject matter for this claim for

relief.



Removing a Case to Fed Ct

1. Generally governed by 28 U.S.C. § 1441 but there are exceptions

a. 1442 – federal officers ; 1443 – civil rights cases ; et cetera.

2. 1441(a)  General Principles

a. Only Ds can remove case (see also Shamrock Oil & Gas Corp. v. Sheets)

b. Can only remove to locally relevant fed ct

c. Dct must have original jurisdiction

i. General test: would the federal court have had jurisdiction over

the plaintiff‘s case if the plaintiff had filed it in federal court?

1. Policy – Ds cannot avoid ―well-pleaded complaint‖ rule

d. General Policy  affords litigants equal access to federal ct

3. 1441(b)  Exception

a. In a diversity case (NOT fed question), can remove case only if no D is

citizen of state in which action is brought:

i. Policy – Reason for diversity jurisdiction is to avoid state court

bias against out of state litigants; that concern doesn‘t exist in this

situation.

ii. *note – Other Ds can‘t get their claims independantly removed

(American Fire and Gas Co)

b. 3rd party Ds cannot remove action to fed ct (First Nat’l Bank of Pulsaki)

4. Strategy  Avoiding removal:

a. PNY v DMA : P can assure case stays in NY state ct (i.e. eliminate D‘s

ability to remove) by adding a D from NY, if applicable

i. Caveat – doctrine of fraudulent joinder : fed cts allowed to

disregard nominal or formal parties and determine jurisdiction

based solely on ‗real‘ parties (Rose v Giamatti)

1. Formal/nominal  has no legal interest in result of suit

b. P generally master of complaint, but two other caveats:

i. P can‘t disguise fed cause of action as a state issue

ii. Doctrine of complete preemption – some issues so exclusively

fed in character that even if P does not plead them, they will still

preempt any state cause of action

5. PROCEDURE FOR REMOVAL

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a. 1441 – Ds must unanimously agree to remove

b. 28 U.S.C. § 1446: need for timely notice

i. 1446(a) – Ds must file notice of removal in fed ct

ii. 1446(b) – Scotus: D have 30 days after summoned to appear in

action to remove case

1. If case now removable after P amends complaint, D has 30

days from receipt of amendment

a. Except absolute 1yr deadline for removal

b. Pma v D1ny + D2ma  P can drop D2 after a year!

iii. 1446(d) – D must notify P and file a copy in state ct; state ct can‘t

proceed until issue resolved

6. Three Possibilities of REMAND

a. General – Remand applies only to state  fed  state

i. Only way to get case originally filed in fed ct back to state ct is to

prove that fed ct does not have jurisdiction

b. 28 U.S.C. § 1447

i. 1447(c) – Case has to be remanded if at any time the Dct discovers

it doesn‘t have jurisdiction [except if removed b/c of 1441(c)]????

1. 1447(e) exception  if P wants to add parties that would

destroy jurisdiction, ct has discretion to reject amendment

or accept and remand.

ii. 1447(c) – 30 day time deadline for motions to remand based on

procedural defects

iii. 1447(d) – If fed. ct remands for reasons in 1447, the order is not

reviewable (see also Thermotron Products v. Hermansdorfer)

c. 1441(c) – If separate and independent fed + state claims (i.e. don‘t satisfy

Gibbs test), D can remove entire case. Dct then has discretion ajudicate

entire case or to ajducicate fed issue and remand state issue.

i. Must remand state claim if it doesn‘t fall under Art. III

ii. Can adjudicate both if gap between statutory grant and Art. III

1. i.e. Pma v Dny where filed in NY state ct

a. 1441(b) exception doesn‘t apply b/c of fed issue

2. i.e. if fed question broad enough for Art II but not 1331

iii. No authority to remand a state claim that is not separate and

independent (i.e. would pass the Gibbs test) (Borough of West

Miflin v Lancaster)

d. Exception vis-à-vis 1367(c) suggested by Carnegie-Mellon v Cohill

i. PMA v DMA filed in MA ; fed cause of action + related state law

claim

ii. If removed, Dct could remand related state law claim if it fits into a

category listed in 1367(c)

1. i.e. if claim turned on a novel issue of state law

e. List of reasons to remand a removed case in 1447 is exlusive (docket too

full is not a reason) (Thermtron Prods v Hermansdorfer)



Does the Court have Personal Jurisdiction?

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Personal Jurisdiction: The Basics

1. Personal Jurisdiction (PJ): the power of a court to enter a judgment against a specific

defendant.

a. Limitations

i. Must be conferred by statute

ii. Cannot exceed bounds set by due process clause of 5th amend (for

fed ct) or 14th amend (for states)

b. Determined by situation at time of filing

2. Two types of PJ:

a. General – person can be sued in that forum on any claim, even one

unrelated to in-state activities.

b. Specific – person can be sued forum only on claims that arose from in-

state activities.

3. Ways cts can assert PJ:

a. In personam – ct has power to render judgment b/c of a person‘s presence

in the state‘s territory or citizenship there

b. In rem – court has power to determine fate of property in territory; binding

w/ respect to all possible interest holders.

i. Ct first issues writ of attachment on property, then ajudicates

c. Quasi-in-rem – Court reders judgment for or against person, but recovery

limited to value of property w/in jurisdiction.

i. Property doesn‘t necessarily need to be related to claim; can be

served only to get jurisdiction, and, if necessary, funds



Historical Overiew: from Pennoyer to Int’l Shoe

1. Pre-14th amendment interpretation of PJ:

a. State cts required to adhere to rulings of other states b/c of ―full faith and

credit‖ clause in constitution; fed cts b/c of ―FFC‖ act of 1790.

b. BUT other states not obliged to respect judgments beyond limits of

territorial authority if ruling violated the two principles of PJ:

i. Every state possess exlusive jurisdiction and sovereignty over

person and property w/in its territory

ii. No state can exercise direct jurisdiction and authority over persons

or property without its territory

2. Impact of the 14th amendment

a. Rendering a ruling in violation of the two principles was now considered

deprivation of property w/o due process.

i. * note that the issue was no longer the obligation of other states to

respect ruling but the validity of the original ruling!

b. Scotus set up state ct requirement for PJ:

i. D must either consent to PJ or be brought within state‘s

jurisdiction by service of process within the state (Pennoyer v.

Neff – 1877)

1. D could escape PJ by leaving after filing but before service

a. Service became a game of freeze tag!

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2. *note – Pennoyer was a case of in personam jurisdiction.

Oregon would have had jurisdiction over an in rem action

against Neff‘s land.

3. Agents and the expansion of PJ

a. Two theories on PJ over corps before Shoe:

i. Consent – corp cannot do business in state w/o consent (whether

express or implied) to appoint agent.

ii. Presence – corp amenable to process if doing business to such an

extent that you can infer it‘s ―present‖ there

1. But can‘t sue them if they leave!

iii. Result  cluttered and confused tests for ―doing business.‖

b. Expansion of PJ:

i. State allowed to require out-of-state mororists to expressly appoint

agent before driving in state (Kane v New Jersey – 1916)

ii. State allowed to appoint agent for an out of state motorist on the

basis of motorist‘s ―implied consent‖ (Hess v Pawloski – 1927)

4. Int’l Shoe and the NEW TEST for PJ:

a. State ct can only subject party to PJ if party has ―certain minimum

contacts… such that the suit does not offend ‗traditional notions of fair

play and substantial justice.‘‖ (Int’l Shoe Co. v Washington – 1945)

i. If party has requisite contacts, no const. limitation on state‘s ability

to serve process outside its borders.

ii. Rationale – by conducting activities w/in state, a party enjoys

benefits and protection of laws of state. These benefits give rise to

obligations, such as the req. to respond to a suit.

b. * note – remember Int’l Shoe is a case about specific jurisdiction



Long Arm Laws and Specific Jurisdicition: The Basics

1. GENERAL TEST  To determine whether a state court can assert PJ over a

particular person or claim, ask:

a. Does a state law purport to authorize this assertion of PJ?

i. Two types of state long arm statutes

1. Rhode Island type  as far as const. permits

2. New York type  lists specific categories of activities that

subject a party to PJ

b. If so, is the state law valid as applied to this case – that is, would the state

court‘s assertion of PJ violate fed const.?

i. * remember- const. req is only second of two necessary reqs!

2. NY style-state statutes – can raise hard questions as to PJ:

a. Gray v Ameican Radiator (Ill Sct – 1961)

i. Illinois statute said ct can assert PJ over anyone that commits a

tortious act in Ill. Guy injured by water heater bought through

distributor sues out-of-state manufacturer with no other contacts.

1. Place of a tortuous action is where the injury occurred.

ii. Ct says doing a given volume of business not only way to establish

sufficient contacts. Here, delivering products into stream of

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commerce w/ expectation they will be purchased by residents of

state suffices.

1. Pehaps no longer good law  Check WWV



Long Arm Laws and Specific Jurisdiction: Consitutional Limitations  Modern

Shoe test is more of a ―collection of principles‖ that incorporate the totality of the

circumstances than a clearly defined rule. We thus need data points to see how Scotus

applies the test:

1. Systematic and continuous contacts are not necessary for PJ (McGee v Int’l Life

Insurance – 1957)  even a single contact could be enough

a. Scotus allowed McGee to sue out of state insurance co even though co had

never sold another policy to anyone in Cali

b. Quality v Quantity  A contact is understood to have a higher quality if

it (1) relates (directly) to the substantive claim that the P is asserting

against the Dand (2) reflects some sort of purposeful dealing between the

D and the forum state.

2. Unilateral activity of those who claim some relationship with a nonresident D cannot

satisfy the req of contact. (Hanson v Denckla – 1958)

a. Lady sets up trust with DE bank, moves to Fla. Unilateral act of moving

to Fla does not satisfy bank‘s req of min contacts w/ Fla.

b. Why? B/c of puposeful availment test – essential that D somehow

purposely availed itself of privilige of conducting acitivites w/in state, thus

invoking benefit of state law

3. State can use its choice of law rules to adjudicate issue as long as some connection to

or interest in that issue. (All-State Insurance Co. v Hague)

a. The ability to apply choice of law rules is also subject to due process req

BUT

b. Scotus has implied that more contacts necessary to establish PJ than to

apply choice of law rules

4. Forseeability – Ds conduct and connection w/ forum state much be such that s/he

should reasonably anticipate being haled into ct there. (World-Wide Volkswagen

Corp v Woodson –1980)

a. Respondents bought car in NY, crashed it in OK. Sued NY distributor

(and others) in OK state ct.  Not foreseeable

i. Maybe diff from Gray b/c the customer brought car to OK. Here,

stream of commerce ended where car was sold.

b. Determine forseeability in part through purposeful availment!

i. Financial benefits that accrued to D from collateral relationship w/

OK (i.e. fact that he allowed customers to drive in OK raised value

of car) do not support PJ b/c no purposeful availment

ii. Must determine forseeability in light of dicta below; otherwise, test

is circular

c. (Dicta) – standards to assure ―reasonableness‖ of a forum

i. Burden on D (primary), Ps interest in obtaining relief, interest of

forum state, judicial system‘s interest in efficient resolution, and

US interest in furthering social policies.

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d. Dissent (Brennan) – focus should be on ―fair play and substantial justice‖

not minimum contacts. Given the substantive issues in case, forum was

reasonable.

i. Wanted to change rule to min contacts betvween parties,

transaction, and forum state (not just Ds and forum state)

5. If D has minimum contacts but P does not, the Shoe test is still satisfied (Keeton v.

Hustler – 1984)

6. In Burger King, Scotus established a two part (but not completely separate) test:

a. Did the D purposefully establish minimum contacts (threshold test)?

i. Here, a frachisee‘s K with a Florida corp—while not a dispositive

factor—was enough to establish jurisdiction (long term, Fla choice

of law, et cetera) (Burger King v Rudzewicz – 1985)

b. Reasonableness of jurisdiciton – would jursidiction comport with fair play

and substantial justice (as measured through the five factors listed in

WWV)?

i. Presence of these considerations can substitute for a ―lesser

showing of minimum contacts‖ or can render jurisdiction

unreasonable even if its constitutional  SLIDING SCALE

7. Asahi and the new ambiguity:

a. Scotus rejected jurisdction over Taiwanese manufacturer b/c jurisdiction

was not reasonable. (Asahi Metal Industry Co. v Superior – 1987)

i. ―Great care and reserve should be exercised when extending our

notions of personal jurisdiction into the international field.‖

b. Ambiguity  Four said connection necessary for min contacts must come

through action D purposefully directed towards forum state. Four said

Asahi had min contacts b/c put products into ―stream of commerce.‖

i. What could give US cts jurisdiction over Asahi under purposeful

standard?

1. advertising in Cali; if Asahi was vertigally integrated (made

tires as well as valves), if it established regular support

mechanism for Cali customers.

8. Also: do we need new PJ rules for the internet? Or apply (modified) old framework?



General Jurisdiction: Constitutional Limitation

1. On rare occasions, an out-of-state party can be subject to jurisdiction even if no

litigation related contacts if their other relationships w/ state are ―so extensive‖ as

to allow general jurisdiction

a. Pres of Phillipine corp ran it through home office in Ohio for several

years. General jurisdiction OK. (Perkins)

b. Must look at state statute on this issue as well

2. General jurisdiction bar is HIGH  for example, business trips and negotations

in, and subsantial purchases from, forum state were not enough for general

jurisdiction over int‘l corp (Helicopteros)

3. Also, cts can ―mix and match‖ litigation related contacts and unrelated contacts

when deciding if PJ is allowable.

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In Rem and Quasi in Rem Jurisdiction

1. Under Pennoyer, just as a state could validly assert in personam jurisdiction

against people w/in its borders, so to could it validly assert quasi-in-rem (or in

rem) jurisdiction over property w/in borders. (Harris v. Balk)

a. Harris also said debt travels with debtor and can be attached as basis for

quasi-in-rem jurisdiction

2. Shaffer v Heitner (1977) – The Int’l Shoe of in rem and quasi in rem suits

a. In order to assert quasi in rem jurisdiction, must apply the same test as for

personal jurisdiction (i.e. minimum contacts, reasonableness)

i. Unsure of application to in rem, but fact that in rem property is

related to lit is most likely enough for PJ

3. Implications  This ruling doesn‘t eliminate in rem or quasi in rem, but it

reduces its tactical value (before, ppl used it to get around Shoe req)

a. *note that Shaffer says that the constitution treats each of the three types

of PJ exactly the same; state law could still have diff reqs for each one



CHECKLIST FOR LONG ARM LAWS

To determine whether a state court can assert PJ over a particular person on a particular

claim, ask

1. Does state law purport to authorize this assertion of personal jurisdiction? AND

2. If so, would the state court‘s assertion of PJ here violate the fed Const? For Ds

served w/ process outside state‘s borders, courts determine this by asking:

a. Threshold question: Did the defendant purposefully establish contacts

with the forum state?

b. If so, are the defendant‘s contacts with the forum state sufficient to make

the state‘s assertion of personal jurisdiction permissible?

i. FACTORS  Burden on D (primary), Ps interest in obtaining

relief, interest of forum state, judicial system‘s interest in efficient

resolution, and US interest in furthering social policies



Other Means of Establishing PJ

1. Transient Jurisdiction

a. In-state service of process to D just traveling through…Completely

allowable under Pennoyer. Did Shoe eliminate it?

b. Scotus is split: (Burnham v Superior Ct)

i. Scalia  transient jurisdiction always sufficient if state law so

provides

ii. Brennaon  only acceptable if satisfied modern view of justice

and fairness (historical standards alone not enough)

1. Even Brennan‘s viewpoint accepts transient jurisdiction as

OK in almost all circumstances.

2. Consent

a. Consent can be prospective – such as through forum selection clasues,

which are generally enforced.

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b. Consent can even be inferred by conduct in litigation (i.e. filing a 12(b)(6)

motion w/o filing motion to dismiss for lack of PJ, or entering a general

appearance if state ct requires a special appearance to contest PJ)

i. FRCP 12g and 12h – D waives right to raise certain Rule 12

defenses (PJ, venue, service of process) if omits them while raising

another Rule 12 defense.



PJ and FEDERAL COURTS

1. General  use same two part test:

a. Does fed law purport to authorize jurisdiction?

b. Is it constitutional?

2. Constitutional Limitation  Due Process Clause of 5th amend

a. Territorial sovereignty  as long as a defendant has established minimum

contacts with a country as a whole (or, extrapolating from Burnham,

served w/ process in USA)

b. reasonableness test  ―would not be so phenomenally inconvenient as to

basically deprive D of his day in court‖

i. how difficult to get to state, any witnesses there, et cetera

3. PJ and Constitutional Philosophy

a. At first, Scotus said restrictions of 14th both protect individual rights and

state sovereignty (WWV)

b. Later, they said restrictions were only to protect individual D (otherwise,

how could PJ be waivable?), and that any sovereign interests of states are

entirely derivative from this issue. (Insurance Corp. of Ireland)

c. Prof  not necessarily true that sovereign‘s interests are same as

individual‘s, but maybe sovereign‘s interests don‘t kick unless D is

unconsenting… after all, its not really an exercise of sovereign power to

adjudicate issue over consenting out-of-state D.

4. Statutory Limitation  FRCP, particularly Rule 4

a. Rule 4k1a  Fed Dcts should piggyback on PJ law of relevant state.

Thus, they have PJ only if state ct in the same district would have PJ.

i. Reasoning  reduce forum shopping

ii. Rule 4e (Service of Process) – Service (statutorily) sufficient if

through state-allowed means or

1. Personal service to party (or resident of party‘s home) or

service to approved agent.

b. Exceptions (also allows statutory exceptions)

i. 4k1b: 100 mile bulge rule

1. Fed Dcts have PJ over party impleaded under Rule 14 or

joined under Rule 19 (necessary party) and served w/in 100

miles of courthouse

ii. 4k1c / § 2361 – Nationwide PJ over statutory interpleader

iii. 4k2 – Fed Dct has PJ if D has necessary minimum contacts w/ US

as a whole but is not subject to PJ in any state. (D can defeat that

by consenting to PJ in some state [even after suit filed])

c. Timeline

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i. Rule 3 – Civil action commenced by filing complaint

ii. Rule 4m – W/in 120 days, P has to serve summons to each D.

iii. Rule 4d – Offer incentives to D to waive formal service of process



Supplemental Personal Jurisdiction

1. What if fed ct has PJ over one claim (due to a statutory exception such as RICO, for

example) but there is also a state claim?

a. A number of fed circuits have simply borrowed analysis of Gibbs test

i. Criticism  Gibbs test is about SM jurisdiction not PJ jurisdiction;

why not use rule 4k1a (i.e. see what the state ct would do?)

2. What do states do when ct has PJ over Count I but not Count II?

a. NY style (specific categories) – 16 of those states have no supp PJ

b. RI style (constitution) – perform Shoe test for each Count



Did the Parties Receive Proper Notice and Have an Opportunity to Be Heard?



Right to Notice

1. Constitution has min reqs for notice, but state procedural law (or fed procedural law if

in fed ct) might require more notice  Thus, another two-part test:

a. What does the relevant statute or rule require?

b. What does the Constitution require?

2. Constitutional Req of reasonable notice (based on due process clause)

a. Notice must (1) be reasonably certain to inform those affected OR (2) if

reasonable certainty is impossible given the circumstances, it cannot be

substantially less likely to give notice than other reasonable and customary

means. (Mullane v Central Hanover Bank & Trust Co.)

i. What is ―reasonable notice given the circumstance‖ is a fact

intensive balancing test that looks at

1. Individual‘s interest in achieving notice, state‘s interest in

finality, cost of notice, et cetera…

2. Reasonable notice given the circumstances

a. In Mullane, Ct said trust co. should have mailed those with known and

present interest in trust and whose addresses they possessed; for others,

newspaper publication was fine.

i. Ct stipulatd notice to everyone less important here b/c many pppl

with similar (and small) interests.

b. Posting a notice of eviction on apartment door not reasonable under

conditions (as children or other tenants known to remove things from

doors) (Greene v. Lindsey – US 1982)

c. In Jones v Flowers, Roberts said govt. agency that was aware certified

letter never reached D needed to take further steps before notice was

reasonable.

i. Compared D‘s interest (protecting house from public sale) w/

small cost of extra steps (such as tacking notice to door)



Right to Hearing: Interloctory Orders

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1. Development of Law

a. Allowing creditor to garnish wages during pendancy of lawsuit is

unconstitutional deprivation of property unless adequate safegaurds

(notice, pre-deprivation hearing) (Sniadach v. Family Finance)

b. Scotus later expanded this req to include property in which both parties

had a pre-existing interest (rejecting a writ of replevin for goods purchased

on credit) (Fuentes v. Shevin)

i. Some think this ruling may invalidate a P‘s ability to use Quasi in

Rem to gain PJ over D where PJ was not otherwise available, b/c D

could object to PJ during pre-deprivation hearing

c. But they also upheld a writ issued w/ more safegauds (post deprivation

hearings, judge must approve writ), but no pre-deprivation hearings.

(Mitchell v W.T. Grant Co.)

2. Now  Balancing test for prejudgment remedies (Connecticut v Doehr, applying

test laid out in Matthews v Elridge)

a. Are the extra procedural safegaurds worth the costs of applying them?

Consider in particular:

i. D‘s interest in prejudgment attachment

ii. The risk of erroneous deprivation through procedures under attack

and the probable value of any add‘l safegauds

iii. P‘s interest in attachment



Is the Court an Appropriate Venue?



Venue

1. General federal provision for venue – 28 U.S.C. § 1391

a. Venue is proper in any judicial district ―in which a substantial part of the

events or omissions giving rise to the claim occurred.‖

i. i.e. – Venue appropriate where only related event was the

(unforseen) forwarding of a creditor‘s bill to that district (Bates v.

C & S Adjusters, Inc.)

b. If all Ds reside in the same state, venue is also proper in any district in

which a D resides.

c. 1391c – For 1391, a corp resides in any district which has PJ over it

i. If state has PJ over corp but no individual district does, pick

district with most contacts.

d. 1391d – aliens can be sued in any district (as far as venue is concerned).

i. **note – courts will allow Pny v Dma and Dfrance in MA based

on ―same state‖ doctrine (1391(a)(1) and (b)1 for diversity and fed

Q, respectively) even though alien doesn‘t reside in that state.

2. Hypo: P v. D1res of E.D.Va. + D2alien, nonres of VA : Can you sue in VA if events occurred

outside of it?

a. Many courts say no, b/c not all D resides in the same state… even though

aliens can be sued in any district!

3. How to object to improper venue?

a. Either through 12(b)3 pre-answer motion or as a defense in answer.

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b. If don‘t assert it in either of those, objection is waived

c. Forum selection clauses typically enforced as waiving objection to venue

d. **Venue rules only apply to Ps complaint, not parties brought in by D.

i. but a party joined under Rule 19 can object to venue.



Transfer of Venue

1. 28 U.S.C. § 1406 governs if venue is deemed improper

a. Dct can (1) dismiss suit or (2) transfer it to a district in which it could have

been brought

i. Dct cannot transfer case to a district where venue would have been

improper, even if D would consent. (Hoffman v Blaski – 1960)

b. 1406 allows transfer even when transferee ct did not have PJ (Goldlawr

Inc. v. Heiman)

2. 28 U.S.C. § 1404 states that Dct has discretion to transfer even if venue is proper

a. If venue of transforer ct was proper, the law of the transferor ct follows the

transfer in diversity cases. (Van Duesn v. Barrack)

i. i.e. use choice of law rules of transferor ct.

3. Both P and D can move to transfer venue (and P can do it under both 1404 and 1406)



Forum non Conveniens

1. General

a. Historical – Permitted a ct to dismiss a suit even when ct had jurisdiction

b/c the court thought there was a more appropriate forum

b. Scotus upheld a dismissal for forum non conveniens; listed out factors

courts should weigh for transfer (Gulf Oil v. Gilbert – 1947)

i. Private interests of litigants

1. Availability of witnessess, burden of traveling, ease of

access to source of proof, enforceability of judgment

ii. Public interest considerations

1. Burden of jury duty to forum community, home community

interest having case tried locally, cost of lawsuit, difficulty

in applying laws of foreign ct.

iii. Unless the balance is strongly in favor of the moving party, the

original choice of forum should not be disturbed.

c. 1404, enacted after Gulf Oil, granted Dct the power to transfer action but

took away Dct‘s power to dismiss it.

2. Extra-statutory doctine of forum non conveniens today – Dct can dismiss a case if it

believes the courts of a foreign country are a more appropriate venue

a. PA Dct dismisses suit against American plane manufacturers after plane

crash in Scotland; Scotland better venue (Piper Aircraft Co. v Reyno)

i. Scotus  the possibility of a change in substantive law should

ordinarily not be given conclusive or even substantial weight in the

forum non conveniens inquiry

1. Discourage forum shopping, particularly of American cts

by foreign Ps

3. SUMMARY

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a. If venue is proper in the Dct P has chosen, action will generally stay there

(presumption for P)

b. But if there is another fed district where it could have been proper, and

which Dct thinks is a much better forum, then Dct has statutory authority

to transfer suit.

c. If Dct thinks that courts of foreign country are better, then the extra-

statutory doctrine of forum non conveniens allows them to dismiss case



Which Law Should You Use?

Should State Law or Federal Law Govern?



From Swift to Erie

1. 28 U.S.C. § 1652  Rules of Decision Act (RDA)

a. The laws of the several states, except where [federal law] otherwise

requires, shall be regarded as rules of decisions in civil actions in [fed

courts], in cases where they apply.

2. Historical interpretation of ―the laws of the several states‖ (Swift)

a. On matters governed by state statutes or state const decisions, fed cts

would defer to a settled course of decision by state cts.

b. On matters goverened by federal const or federal statutes, state cts would

defer to a settled course of action by fed cts.

c. **But on matters governed by ―general law‖ (such as ―general

commerical principles‖) fed cts were not bound to state decisions on

general law nor were state cts bound to fed decisions on general law.

i. This resulted in two separate systems of law in each state!

3. Historical view of ―general law‖

a. Thought there was one ―general law‖ that had authority through all states

(even all countries) unless some special statute trumped it.

b. All courts were engaged in a general project to ―discover‖ the best rules

and principles through logic, looking at decisions by other cts, et cetera

4. Erie and the rejection of Swift

a. Brandeis rejects idea of ―transcendental body of law‖ (though Prof argues

you could have Swift-style regime w/o this idea)

b. Historical Criticism  Early draft of Judiciary Act (now § 1652)

explicitly mentioned both state statute and common law (rather than ―the

law of the several states‖)

i. Counter  Even if we assume the change was stylistic, not

substantive, must still note ―common law‖ then did not refer to

courts decision but the ―transcendental‖ general law

c. Practical Criticisms

i. Uncertainty over what ―general‖ rather than local law governed

ii. Encouraged forum shopping between state and fed ct

iii. Asymmetric privileges for noncitizens of the forum state when

suing citizens of that state

iv. These disparities caused manipulation

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1. See Black & White Taxicab, where a corp changed

citizenship to get into fed court and around state law

v. Counters  Real Q is whether Erie lessens these problems (and

whether they couldn‘t have been lessened through other means)

d. Constitutional Criticisms

i. Federalism  fed govt doing through general law what it couldn‘t

through statute

1. but Erie applies to things inside fed gov‘t power as well

ii. Seperation of power  courts acting like legislatures when

deciding on general law

1. but this is how common law works all the time

iii. Respect for state decisions about how to structure state govt

1. Best (but still flawed) reason accoring to Nelsons

2. Assumes state constitutions implicitly delegate power to

state courts to make law re: contents of general law



Summary of Erie/Hanna Analysis

1. Federal Constitution

a. If a provision of the fed Const answers the question (whether explicitly or

by implication), a fed ct must follow the const even when a state ct would

do something else.

i. Of course, state as well as federal courts have to follow the fed

Const. But there are some provisions—like the 7th amend

provisions about the right to trial by jury in civil cases—that apply

only in federal cts and not state cts.

2. Federal Statute

a. If a federal statute answers the question (whether explicitly or by

implication), the must ask if the statute is valid as applied to this case.

i. That is to say, is it within the powers that the Const gives

Congress? (arguably procedural)

b. If so, fed ct must follow it even if a state ct would do something else

i. Again, state as well as federal courts have to follow valid federal

statutes (grace of the Supremacy Clause of Article VI). But some

federal statutes are written to only apply to fed cts.

3. FRCP

a. If one of the FRCP answer the question, then you should ask whether the

rule is valid as applied to this case. Assuming that the rule was

promulgated by the Scotus under the Rules Enabling Act (REA) (28

U.S.C. § 2072) rather than enacted by Congress as a statute, the necessary

analysis requires a two-fold inquiry:

i. Is it a ―general rule of practice or procedure‖?

ii. Does it ―abridge, enlarge, or modify any substantive right‖ as

applied to this case?

b. If the rule is valid, fed cts must follow it even if a state ct would do

something else .

4. If no written federal law

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a. If the question is something that state law would answer if the case were

proceeding in state court, then you have to decide whether the RDA (28

U.S.C. § 1652) requires you to apply state lawe.

b. In general, you do what the state courts would do if the matter is

―substantive.‖ How do you determine what is substantive?

i. Must reference ―the twin aims of Erie‖

1. trying not to encourage forum shopping between state and

federal courts and

2. avoiding the inequitable administration of justice.

c. If the matter is instead ―procedural‖ for Erie purposes, then you can

follow the customary practice of the federal courts even though state

courts would do something different.

5. Does this mean federal common law is dead?

a. Not exactly. Congress could give exclusive jurisdiction to fed to decide

an issue but hasn‘t supplied a rule of decision, then fed cts can determine

―federal common law.‖ (i.e. Klaxon, federal choice of law)



Development/Application of Erie (note – applies only if not box 1 or 2)

1. Outcome Determination Test (Guaranty Trust v. York)

a. To decide whether to apply a federal practice that differs from state

procedure, ask if the federal law substantially affects the results of the

litigation … since a fed district court is just another state court with

diversity jurisdiction.

i. if it affects the outcome: substantive law – use state

ii. if it does not affect the outcome: procedural law – use federal

b. This went well beyond Const reqs (held fed cts should defer to state

statute of limitations)

i. See also Ragan (fed cts should defer to state law on tolling the

statute of limitations)

2. The two rulings of Hanna (narrowing the York test, creating box 3)

a. 1 When dealing with pure Erie issues, the he outcome determinative test

has to be read w/ regards to twin aims of Erie

i. Would the difference between state and federal law on the issue

―outcome determinative‖ at the time of filing (ex ante)?

b. 2  The issue in Hanna itself, however, involved an FRCP.

i. The court says FRCPs are allowed if ―arguably procedural‖ (Const

req) – subject to a restriction in the REA (§ 2072) that they not

modify any substantive rights.

1. *note – ―substantive‖ for box 3 must mean something else

than ―substantive‖ for box 4, otherwise no point in having

two tests!

ii. End result – different reqs for service of process do not modify any

substantive rights as defined by the REA…

3. Also must consider whether the fed statute or FRCP even controls to begin with:

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a. In Walker, the court held Rule 3, which governs when a civil action is

commenced, doesn‘t govern when limitations periods are tolled; it just

prescribes a point for calculating various FRCP time reqs

b. Because no FRCP governs, this is a box 4 case (Hanna was box 3).

i. Scotus said this was outcome determinative and was inconsistent

w/ twin aims of Erie b/c would result in inequitable adminstration

of justice.

c. *note – end result re: limitations

i. When suing on a state law cause of action in fed ct, state law will

determine when statute of limitations will be cut off.

ii. But if state law, says, for example, that limitations will be cut off

after valid service of process, then fed ct should use federal law

(Rule 4) to determine what is valid service of process.

4. Box 3 “Substative” v. Box 4 “Substantive”

a. Scotus has never (not yet) held an FRCP as invalid, even as to a particular

case. Have sometimes viewed FRCP rules very narrowly, arguing they do

not purport to control (perhaps to avoid a potential conflict).

b. Some cases on the borderline of substance or procedure might go different

ways dending on the ―box‖ (i.e. FRCP v. unwritten federal practice)

i. Ex – in Sibbach, the court held Rule 35, which allows court to

demand parties undergo compulsory physical examinations (state

law banned this), didn‘t ―modify any substantive rights‖

1. *Caleb suggests perhaps they are referring to rights people

bring suits to vindicate, and thus Rule 35 is fine b/c it is

about the discovery process and info that must be available

to the other side

2. Rule 35 is about ―the judicial process for enforcing rights

and duties recognized by substantive law and for justly

administering remedy and redress for disregard or

infraction of them.‖ Sibbach

ii. But if no Rule 35, you would conduct outcome determination test

w/in twin aims of Erie and might decide this rule might result in

forum sopping and hold it substantive.

5. Box 2  What if the fed law does purport to control?

a. In Stewart Organization v. Rioch, D violated the forum selection clause

and brought suit in Alabama. Alabama state cts would deny change of

venue b/c they disfavor those clauses, but 28 USC §1404 governs fed cts.

b. Appropriate Test  Is it within the powers that the Const gives Congress?

i. In Hanna, the ct held the Constitutional authority to promulgate

rules that govern courts extended to any rule ―arguably procedural‖

c. Hypo: What could pass Box 2 but fail Box 3?

i. Glannon  An FRCP that barred enforcement of monopoly Ks.

6. Down But Not Out  The weak precedent of Byrd

a. Balancing Test  Whenever federal courts are not constitutionally

compelled to apply the state practice, they should balance the York policy

of uniform outcomes w/ any countervailing federal policies.

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i. In Byrd, a suit over worker‘s comp, they held the strong federal

interest in judge-jury relations triumphed and they upheld federal

practice of holding a jury trial.

1. *note – this implicated 7th amend issues

ii. After Hanna, Byrd became weak precedent

b. In another judge-jury case, Gasperini (1996), both majority and dissent

mentioned Byrd standard

i. Ginsburg invokes Byrd to argue that issue in Gasperini (NY law

instructed NY COAs to make de novo review of trial judgment in

appeals over awards of damages) undermined federal policy of

strong seperation between fed appellate and fed trial judges.

ii. Scalia discusses judge-jury relations directly (case also dealt w/

standard trial court used to review jury verdicts), arguing a more

expansive standard of review undermines jury‘s role as factfinder

1. *note – Scalia thought applying NY standard would be

unconstitutional anyways (7th amend)

c. Byrd may have relevance in judge-jury cases implicating the 7th

amendment (or other cases where fed policy is tied to const imperatives)

7. Excellent Hypo

a. Cali says judges can‘t ever second-guess new trials. No judicial review.

Could fed trial judges continue to review awards?

i. They could continue to review awards b/c Rule 59 says you can

grant a new trial; FRCP > state law if FRCP valid under REA

ii. Furthermore, would use federal standard of review (shocks the

conscience), b/c no Cali state law determining standard.



What Choice of Law Rules Should the Fed Dct Apply?



Ascertaining State Law

1. If Erie tells a fed dct to apply state law, how does the court determine which state law

to apply?

a. This is a ―box 1‖ issue b/c the constitution doesn‘t allow states to

determine this. But neither the constitution, nor Congress, nor the FRCP

say what courts should do!

b. General Rule  A fed dct should piggyback on the choice of law rules of

its state when Erie tells them to apply state law (Klaxon)

i. *note – this is not required (Congress could have fashioned [in

fact, still could] a uniform federal choice of law statute)

1. Costs of Klaxon

a. Klaxon princple destroys some of the protections that diversity jurisdiction

would otherwise give to out-of-state interests.

i. Say a state creates pro-consumer product liability laws and makes

choice of law rules that require their application. Before Klaxon,

D could escape these rules by removing to fed ct, which would

apply different choice of law rules, but now they cannot.

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ii. This may undermine one of principles behind diversity jurisdiction

(protecting out of state Ds against overreaching state legislators)

2. Exception to Klaxon  venue

a. Federal venue statutes, 28 USC §1404 allow fed dcts to transfer case to

another proper venue.

b. In that case, the receiveing fed dct should use the choice of law rules of

the original court (Van Dusen)

i. Applies whether P or D applies for transfer (Ferens v. John Deere)

ii. Does not apply if case tranfered via 1406 (improper venue)

c. Result  P can choose inconvenient (but proper) disctrict to get preferred

choice of law rules, then transfer case to a convenient district.

3. SUMMARY

a. Fed dct will use choice of law rules of state in which it sits

b. EXCEPT will use original court‘s rules in situations of transfer of venue

i. EXCEPT when it was transferred under 1406 (improper venue)



Results of Erie and Klaxon

1. Uniformity across fed cts sacrificied for uniformity between state and fed cts

2. Erie can create problems when a fed ct has to predict what a state court would do on

an issue with inconsistent state precedents

a. Of course, state courts have the same problem if fed question issue

b. Many states have ―certification mechanisms‖ to reduce this problem



The Mechanics of a Federal Lawsuit

Pleading



Complaints (Rules 7, 8, 9, 18, and 20)

1. FRCP 8a  Notice Pleading (inc. complaint, answer, reply, 3rd party, etc)

a. Pleading setting forth a claim for relief must contain

i. A short and plain statement on the grounds for which jurisdiction

depends (SMJ)

ii. Short and plain statement of claim

iii. Demand for judgment for which the plaintiff seeks (i.e. injunction,

monetary damages, etc)

b. Pleading does not require great detail; FRCP relies on liberal opportunity

for discovery to test claims (Connolly v. Gibson)

i. If a pleading satisfies these liberal reqs but is still extremely vague

or ambiguous, D can make a FRCP 12e motion for a more

definite statement.

ii. Rationale – Pleading can be used to identify baseless claim, but

main purposes are providing notice, setting the parties‘ views of

the facts, and narrowing the issue.

c. 8e: Pleading can set out two claims or defenses alternately or

hypothetically; insufficiency of ones does not damage others

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d. FRCP 11b3  By making pleading, party is certifying the allegations and

other factual contentions have evidentiary support or are likely to have

evidentiary support upon further discovery.

2. Joinder of Claims in a Lawsuit

a. FRCP 18 (same D)  a party asserting a claim for relief can join any

claims (even totally unrelated claims) they have against opposing party

i. Juris Limitations – only claims with original fed juris can be

joined with impunity. For state claims

1. Fed Q – can‘t add unrelated state claims; § 1367a gives

supp juris over related state claims (Gibbs test)

2. Diversity – Always ok if add‘l claims do not destroy

diversity. If they do, remember § 1367b carve out.

b. FRCP 20 (multiple Ds)  a P can join multiple Ds in a lawsuit as long as

i. There is asserted against them any rights to relief arising out of the

same transaction or occurrence (somehwat less broad than Gibbs)

ii. Any question of law or fact common to all Ds will arise in lawsuit

c. Why is 18 broader than 20?

i. Limits peicemeal litigation (possibly at expense of confusing jury

or prejudicing them against D)

d. *note – FRCP 20b and 42b give judge little-used discretion to sever claims

(even claims asserted against one D) and allow two trials.

3. Exception to ―Notice Pleading‖

a. 9b  Special allegations of fraud or mistake require ―particularity‖ in

the pleadings (of both P and D)

i. Some COAs have argued ―particularity‖ standard only slighty

more stringent than 8a standard (see Denny v. Carey) Others

require more (the ―who, what, when and where‖)

ii. *Rationale (Nelson) – Normal K law doesn‘t allow punitive

damages or atty fees. Maybe this helps discourage them from

―glomming on‖ these claims to get those on the table.

b. Courts cannot require heightened standard for anything not listed in 9b

(Leatherman)

c. 9g  Must specifically state ―special damages‖

i. ―Special damages‖ arise either in certain special causes of action,

such as defamation (which have very specific reqs) or damages

unusual for type of claim in question.

ii. *Strategy – if P introduces evidence about special damages at trial,

D must raise objection. If D does not, 54c allows party to get any

relief it‘s entitled to even if not in pleading.



D’s Response to Complaint (Rules 8 and 12)

1. Introduction  When and What?

a. 12a – D must respond w/in 20 days (carrot: if waived service of process,

gets 60 days).

b. D has two choices  answer or pre-answer (Rule 12) motion

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i. If files a Rule 12 motion, can delay filing an answer until 10 days

after motion denied.

2. FRCP 12 and the seven pre-answer motions

a. Motions – 1 (SMJ), 2 (PJ), 3 (Venue), 4 (Process), 5 (Service of Process),

6 (Failure to State Claim), 7 (Indispensable Parties)

i. PJ, Venue, and Indispensable Parties (Rule 19) generally do not

act as adjudication on the merits; 12b6 does

b. Rule12b6: Failure to State a Claim on Which Relief can be Granted

i. Motion should not be granted unless it appears beyond doubt that P

can prove no set of facts to support his claim for relief (American

Nurse‘s Ass v. Ill)

1. View complaint in light most favorable to P

2. Bigger issue for Ps ―pleading themselves out of court‖ (i.e.

too much) rather than too little (if too little court likely

would just make P amend per 12e)

ii. ―Pleadings in fed ct need not allege facts corresponding to each

element of a statute. Ps need not plead facts or law. They plead

claims for relief.‖ (Doe v. Smith)

c. Pre-answer motions and Evidence

i. Pre-answer motions only consider the pleadings. If party attaches

evidence to a rule 12b6 motion, court can either ignore it or

convert the motion to Rule 56 SJ.

d. Pre-answer motions and Waiver (12g and 12h)

i. PJ, Venue (though not §1404), Process and, S of Process are

waived if omitted from the first pre-answer motion. Others can be

raised at any time (inc. trial – i.e. SJ or JMOL instead of 12b6) and

SMJ can be raised sua sponte.

ii. Rule 12h1 allows party to include even waivable motions in an

answer in lieu of making a pre-answer motion.

e. Other options – 12e more definite. 12f motion to strike matters that

are―redundant, immaterial, impertinent, or scandalous.‖ 12c same as 12b6

but after answer.

i. **crucial note – 12c available for P as well; P can win at

pleadings if Ds answer admits P‘s key allegations and fails to state

a valid defense (even in light most favorable to D).

ii. To win 12f for ―scandalous‖ material, it must obviously be false

and unrelated to the SM of the action (Gateway Bottling)

3. FRCP 8 and Preparing an Answer

a. 8b and 8c  D must admit or deny each of Ps averments. If D disagrees

with only part of a particular allegation, must specify so much as is true

and material and deny only the remainder.

i. See Zielinskiv. Philly Peirs, where the court deemed that D‘s

general denial of a ¶ in P‘s complaint was not made in good faith.

Court could have allowed D to amend answer (Rule 15) but

refused and deemd everything in the ¶ admitted

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b. Where D is w/o sufficient knowledge or information, they have ability to

say so (this equals denial), but if D ignores an allegation, 8d deems the

silence an admission (except as to the amount of damages)

1. For that reason, D‘s answer often include a catch-all denial.

4. Affirmative Defenses

a. Admissions or denials are about facts in a complaint. Affirmative Ds are

particular legal arguments (even if what P says is true, …)

b. Rule 8c lists 19 affirmative Ds and then says ―all other affirmative Ds.‖

Courts are split over breadth of this residuary clause.

i. See Ingram v. US, where the 5th circuit held failure to raise an

affirmative D of a statutory cap on certain types of damages served

as a waiver of the ―defense.‖

ii. But see Taylor v. US, rejecting the idea that a statutory cap on

damages is an ―affirmative D.‖

1. *rationale – FRCP doesn‘t require P to have to plead

damage (except to satisfy juris amount).

c. Erie issues and affirmative Ds

i. Burden of Pleading – determined by 8c (box 3). Burden of

Persuasion – state law (no FRCP, box 4 substantive)

ii. Figuring out which Ds fall under the residuary clause is a Q of fed

law (relates to pleading), but figuring out whether the D has the

characteristics required by fed law is a state law issue.

1. Hypo  fed law says an Aff D is any issue that would

defeat Ps claim and over which D has burden of persuasion.

To run fed test, we need to look at state law (for diversity

claims), which controls those substantive Qs.

d. *Affirmative Ds not raised in answer are deemed WAIVED (unless court

allows amendment)



D’s Response cotd… D’s Claims for Relief (Rule 13)

1. Thee Mechanisms by which Defending Parties can assert their own claims for relief:

a. Counterclaims, Crossclaims, 3rd party claims

b. When using any of these mechanisms, can also add add‘l claims under

Rule 18

2. Rule 13  Counterclaims

a. 13a (compuslory counterclaims) – Pleading must state any claim that

arises out of the same transaction or occurrence that is the SM of the

opposing parties‘ claim

i. Somewhat less broad than Gibbs test (also need Gibbs tests to

determine SMJ, but it will be filled) … but you could satisfy Gibbs

and not 13a (i.e. Chanell)

ii. If not, res judicata would likely bar party from asserting that claim

in a later lawsuit

iii. Exception – if asserting the counterclaim would destroy the

court‘s jurisdiction (See Kroeger, where Mrs. K had a compulsory

counterclaim against 3rd party crane co from same state)

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b. 13b (permissive counterclaims) – Any claim against other party over

which the court has jurisdiction

c. P becomes a D vis-à-vis counterclaim once its asserted; has rights and

responsibilities of trad‘l D.

3. Rule 13  Cross Claim

a. Cross claim used when target is just a co-party, not an opposing party

i. Opposing Party  they have already asserted a claim against you

or you against them

b. 13g  Can only assert a cross claim if it arises out of the same transaction

or occurrence of the original matter.

i. No such thing as compulsory cross claim (otherwise P would have

big tactical advantage by making Ds fight amongst themselves)

1. Once first cross-claim asserted though, other side does have

to assert any compuslory counterclaims

ii. Along w/ crossclaim, party can glom on any other issue through 18

4. Rule 13h  3rd Party Claims

a. Can add new parties w/ Rules 19 or 20.



Amendments to the Pleadings (Rule 15)

1. 15a – amending in general

a. Can amend ―once as a matter of course” (i.e. w/o need of permission)

i. Before responsive pleading is served, OR

ii. If pleading where no response pleading permitted (i.e. answer that

doesn‘t include a claim), at any time w/in 20 days if not placed on

trial calender.

b. If miss ―matter of course‖ deadline, can amend either

i. With adverse party‘s written consent OR by ―leave of court‖ –

given freely when ―justice so requires‖

1. See Fullman v. Davis, promoting a liberal standard of leave

– generally allowed except if undue delay, bad faith, undue

prejudice, futility of amendment, et cetera.

2. See Beeck v. Aquaslide, allowing D to rescind admission

one year after filing answer.

2. Rule 15b  amendment to conform to the evidence

a. Issue arises when trial evidence doesn‘t match what is pleaded.

b. If issues are presented w/out objection, they become part of case by

―implied consent‖ (see Moore v. Moore, D losing for this reason)

i. And remember Rule 54c allows all Ps to get relief on all issues at

trial, even those not in pleadings (except for default)

c. If party does properly object, court can can grant leave to amend unless

amendment will prejudice non-amending party

i. Prejudice  Is the party less able to respond to the issue now than

it would have been at the start of trial? (and how much so?)

3. Rule 15c (―relation back‖)  Issue: When can a party amend a pleading after the

statute of limitations has run?

a. 15c1 – if law that provides statute of limitation so permits

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b. 15c2 – if claim or D asserted in amended pleading arose out of conduct,

transaction, or occurrence at issue in original pleading

c. 15c3  Changing name of party

i. Allowed if 15c2 satisfied and (w/in 120 days of filing [Rule 4m])

new party has received such notice that not prejudiced and party

knew or should have known it would be D if not for mistake.

ii. Replacing of unknown w/ known parties does not satisfy 15c3

(Worthington v. Wilson)

d. Scotus hasn‘t yet resolved issue of amending complaint to add a new P;

for adding new Ds, have to meet all the 15(c)‘s

4. What if state court wouldn‘t allow relation-back (box3)?

a. Argument for: this is a procedural issue as federal law requires notice

pleading – which informs you of liability for the general transaction;

relation-back just speaks to the procedural process of raising the issue

b. Argument against: substantive because changes the statute of limitations

(also forum shopping arguments)



Mechanisms for Adding Add’l Parties



Necessary and Indispensable Parties (Rules 19 and 20)

1. Introduction

a. Rule 20 allows willing Ps to join together (or not) if asserting rights to

relief arising out of same transaction or occurrence (and juris OK).

b. However, Rule 19 requires Ps to join necessary parties

2. 19a  Court shall authorise joinder of necessary parties (either if a party files a valid

12b7 motion)

a. exception 1 – if court doesn‘t have PJ over them or adding them would

destroy SMJ.

b. exception 2 – party can object to improper venue

3. 19b  Indispensible Parties

a. If the necessary party cannot be joined, court must determine if that party

is ―indispensable‖

i. Test – whether ―in equity and good conscience‖ should action

proceed or should case be dismissed

b. Factors to consider:

i. Interests of parties in lawsuit, extent to which relief can be shaped

to protect interests of parties in lawsuit, whether judgment

rendered in absence is adequate, whether P will have adequate

remedy if action is dismissed.

ii. Cts reluctant to dismiss case b/c of indispensable parties

c. Courts can raise issue of indisepnsable parties sua sponte

i. See Provident Tradesmen‘s Bank, holding that insurance policy

holder not indispensable to decl judgment suit where his absence

would only harm party that didn‘t raise issue.



Impleading 3rd Parties (Rule 14)

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1. Rule 14: Joining someone who owes indemnity or contribution on the underlying

claim or counterclaim.

a. D (or P subject to counterclaim) can implead 3rd party D (and thus

becomes 3rd party P (TPP) for purposes of this claim) if

i. Contribution – 3rd party D (TPD) responsible for paying part of

damages to original P (or counterclaimant)

ii. Indemnity – TPD responsible for paying part of damages to TPP

b. ** Remember there is an exception under § 1367a that allows supp juris

over these claims (as longs as they pass Gibbs test) even if court only has

diversity jurisdiction.

i. **Also note never supp jurisdiction over a claim by original P

against the TPD doe (§ 1367b)

1. Impleading party, however, can now use Rule 18 to glom

on any jurisdictionally proper claims.

2. TPD acts like a normal D vis-à-vis TPP. (must make

compulsory counterclaims, can bring in other TPDs)

a. *except – vis-à-vis P, can make crossclaim if arises

out of same transaction or occurrence (same reqs for

P) but not otherwise. (normal 13g crossclaim rules)

c. Impleading and Erie

i. In Jeub v. B/G Foods, court held that decision of when to implead

is merely procedural under Hanna as long as state law would allow

indemnity (here, TPP allowed to implead TPD during trial even

though state wouldn‘t allow indemnity until after trial.)



Interpleader (Rule 22 and Statutory)

1. Introduction

a. Issue: Multiple parties fighting over limited funds. Stakeholder can avoid

multiple suits and possibly unfair multiple payouts by interpleading all the

claimants into one suit.

2. Rule 22  Rule Interpleader

a. Claims do not need common origin (as long as they are such that they will

expose stakeholder to double or multiple liability)

b. Subject to normal diversity reqs – but remember that pertinant diversity is

between interpleader and other parties.

i. Stakeholder(ny) v Claimant(ma) + C(ma) + C(ma)  is OK

c. PJ, Venue, et cetera all normal

d. D already exposed to multiple liability in suit can use this

3. Statutory Interpleader  more expansive (except for diversity caveat)

a. 28 USC § 1335: SMJ

i. Claims do not need common origin; Jurisdictional Amount: ≥ $500

ii. Only requires minimal diversity even if all claims arise from state

law. However, pertinant diversity is only between the claimants

(State Farm)

1. Stakeholder(ny) v C(ma) + C(ma) + C(ma) is NOT ok

b. 28 USC § 2361: PJ

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i. Nationwide service of process unless violates due process clause

b/c of inconvenience to D.

c. 28 USC § 1397: Venue

i. Any fed dct where at least one D resides. (and remember § 1391

says for purposes of venue, corps reside in any district that has PJ

over it)

4. Statutory generally much more powerful than rule, but parties will often assert both if

possible (cover their asses)



Intervention (Rule 24)

1. Rule 24 offers two ways for non-parties to join themselves to a lawsuit (either as a P

or D, although court may decide to realign)

a. Intervention as of Right – Can enter if [1] timely application AND

i. Staute provides unconditional right OR

ii. Absentee shows a (legal) interest related to the ―transaction‖ which

is subject of action may be harmed if not joined, and that the

interest is not adequately represented now.

1. 19a2i – all by necessary parties by nature have a right of

intervention (but right extends beyond just them)

b. Permissive Intervention – Can enter if [1] timely application AND

i. Staute provides conditional right OR

ii. Party‘s claim or defense has a common question of law or fact

(much less stringent)

iii. Up to court‘s discretion

c. Timeliness req depends on circumstances

i. See Smuck v. Hobson, allowing an intervention to take an appeal

when the interests of the party originally representing intervenor‘s

interests diverged from those of the intervenor.

1. *note – intervention to take an appeal generally only

granted in unique circumstances (and for the 7th circuit,

only upon ―gross negligence or bad faith).

d. *Note – even intervention as of right is not required. If party chooses not

to join, they are not bound by res judicata effect of judgment (in virtually

all cases)



NEED TO LOOK AT § 1367 TO SEE ITS EFFECT ON THESE JOINDERS



Class Actions



Intro to Class Actions (Rule 23)

1. Introduction

a. Diff from normal cases b/c every class needs only one named rep who is a

member of the class at the outset of the litigation; other parties aren‘t

necessarily named or even known

2. The Adversarial Hearing on Class Certification

a. 23a  Basic Prereqs

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i. Numerosity (at least 25)

ii. Commonality (common question of fact or law)

iii. Typicality (are claims of named representatives typical of other

members of the class?)

iv. Adequacy of Class Reps (this more to do with factual issues such

as differing practical interests or illness, etc)

b. 23b  Add’l Reqs (depend on type of class)

i. Type 23b1

1. Either individual suits would risk inconsistent adjudication

would hurt D (interpreted very narrowly… i.e. voter

registration hypo) OR

2. adjudications w/ respect to some individual Ps could hurt

that interests of other parties (i.e. potential Ps)

a. similar to necessary party analysis

b. usesful if limited fund cases

ii. Type 23b2

1. D has acted such that injuctive or declatory relief is

appropriate (i.e. no $$ damages)

a. Ex – fisherman sue lake polluter

iii. Type 23b3 (classic many small claims cases)

1. Common questions of fact or law predominate over

indivudal ones AND

2. Class action best mechanism (perhaps b/c each claim too

small to be economical, but not always)

c. 23c  Certifying order must

i. Define class precisely, define class claims and issues to be

resolved, appoint att‘y

3. Notice

a. Types 1 and 2  Dct may direct ―appropriate notice‖

i. Considered good practice to give notice even when not required

b/c absent members could otherwise dispute res judicata effect

b. Type 3  Notice required:

i. Best notice practicable under the circumstances, including at least

―individual notice to all members who can be identified by

reasonable effort‖

ii. Notice must inform member of rights to

1. opt-out (only available for Type 3 members)

a. not bound by lawsuit, but don‘t share in damages

award

2. hire individual att‘y (to protect individual interests [often

from class counsel!])

4. Settlement

a. Safegaurds – another round of (reasonable) notice, fairness hearings



Class Actions and Due Process

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Issue: Binding class members deprives them of legal rights (sometimes with no notice

whatesoever).

1. Due Process and the Interests of Absent Parties

a. It does not violate due process clause to make a covenant that can bind

absent parties (inc. those who will have interests in the future), but the

interests of those absent parties must have been adequately

represented or they are not bound.

i. In Hansbury v. Lee, the court held that a class action suit brought

to enforce a racially restrictive covenant was not binding as to

Hansbury b/c the class purported to represent all landowners, but

landowners were actually two distinctive groups: those that wanted

to enforce the covenant and those that did not.

ii. Of course, if an absent class member has an adequate chance to

intervene but does not, they are bound.

1. Non-parties are not bound even if they had an adequate

chance to intervene (except Civil Rights Statute of 1991

overturning Martin v. Wilkes [white firefighers].)

b. This const. req is broader than the applicable federal provisions

2. Due Process and PJ

a. The minimum contacts test of Int’l Shoe does not apply to absent class

members as Ps in a class action (Phillips Petroleum)

i. *rationale – Const restrictions on PJ are about burdens on

individuals; any state sovereignty issues are only derivative of

those burdens. (See Insurance Corp. of Ireland)

ii. But in class-action context, choice of law req of All-State still

applies: state can only apply its choice of law if it has some interest

in or connection to suit.

1. In Phillips, suit was allowed but Kansas substantive law

couldn‘t be applied to all claims!

b. Instead, absent members bound as long as Hansburry and Mulaine (notice)

are satisfied and members have opportunity to opt-out.



Settlement Classes

1. Introduction

a. Class actions filed for the sole purpose of settlement; already some

agreement between class counsel and D.

2. Problem and Restrictions

a. In Amchen Products v Windsor, Scotus stressed that courts must be

cautious about certifying Type 3 class-actions when members have big

enough claims that individual lawsuits would be viable

i. If suit of this sort is to proceed at all in fed ct, it needs to divide

people into subclasses with its own class counsel (See Ortiz)

b. Reasoning (problem)

i. Mass tory att‘y might have incentive to offer a global settlement on

terms favorable to D in order to widen scope of lawsuit; lawyer

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gets lots of money for subclass that has present injury and

abandons subclass that will develop future injury.

c. Interesting Solution (proposed in Ortiz)

i. Settlement to create limited fund, claimants pursue claims against

fund (not against company) – similar to interpleader action

ii. Ortiz rejected b/c some subclasses not adequately protected.



Discovery



1) Mechanisms for Formal Discovery

a) THE GENERAL SCOPE OF DISCOVERY

i) Limits to Discovery: Rule 26(b):

[1] Only parties can use discovery (explains why somebody might want to be

a party to a case)

[2] any matter not priviliged relevant to claim or defense (*** objections on

relevance rarely granted)

[3] Evidence must be reasonably calculated to lead to discovery of admissible

evidence

ii) Other Limits to Discovery

(1) Rule 26 (c) : Any information that the court protects by order (to

either prevent discovery or limit the use of the info by adverse party)

(i) ―annoy, embarrass, oppress‖ … ―undue burden or expense‖ …

trade secrets, improper discovery, seal deposition, etc…

iii) Policy for Broad Discovery

(1) Levels the playing field by giving access to otherwise hidden

information

(2) Prevent Litigation when party has information that they will win with

(3) BUT –more chance for abuse of discovery



b) MANDATORY DISCLOSURES

i) Rule 26 (a): Mandatory Disclosure: Requires disclosure at 3 points in the

trial, even if not asked for.

(1) (a) Name of persons likely to have relevant information

(b) Provide copies or descriptions of all materials disclosing party may use

as exhibits

(c) Provide computation of damages claimed

(2) Expert witnesses must be disclosed (see below)

ii) Rule 26(e): Duty to supplement upon court orfer or if party learns info was

incomplete or incorrect (and other party doesn‘t know)



c) DEPOSITIONS – questions are oral or written, answers are always oral

i) Rule 29: Stipulations Regarding discovery procedure

(1) Parties can stipulation deposition structure and (2) modify limits of

discovery except when extending the time of Rules 33, 34, 36

ii) Rule 30: Depositions upon Oral Examination (p. 92)

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(1) Who: Can depose parties or non-parties. Non-parties need not show

unless subpoenaed. Deponent may be a party but does not have to be

(a) 30(b)(6): Party can depose a corp by describing the deposition in the

subpoena – the corp will choose ppl to answer Qs

(b) Can get deps from anyone across country as long as live w/in 100 mile

of dep site (can get court in their area to issue subpoena)

(2) How: Lawyer for requesting party asks Qs w/ others present – others

can object. Later, other lawyers can ask Qs too

(a) Objections to Questions:

(i) 30(c): The party can object to individual questions for the record.

Deponent still answers, but party preserves right to object if issue

comes up at trial

(ii) 30 (d)(1) Lawyer cannot instruct the deponent not to answer

UNLESS: [1] to preserve a privilege [2] enforce court ordered

limitation on the evidence or [3] if the deposition is being

conducted in ―bad faith‖

(3) When:

(a) 30(b): Party must give reasonable notice to all other parties and the

deponent (most of the time parties set a timetable)

(b) 30(d)(2): Limits deposition to one day of 7 hours

(c) Most limits on deps exceeded even in moderately complex cases

iii) Rule 31: Depositions Upon Written Questions (p. 97)

(1) Very Rare- a record of the questions and name of deponent must be

given to all parties – the witness will be orally Qed by a ct. officer

(2) Party can serve cross-Qs w/in 14 days

iv) Rule 32: Use of Depositions in Court Proceedings (p. 987)

(1) Use at trial: [1] impeach a witness [2] read into record b/c witness is

dead, or >100 miles away from the hearing, or outside USA, or infirm

or in prison



d) INTERROGATORIES – Written questions for parties answered in writing under

oath.

i) Rule 33: Interrogatories to Parties (p. 101)

(b) Aswers:

[1] Must answer each question fully under oath or object

[2] Party signs answers and attorney signs

(b) Objections:

(4) All grounds for objection shall be stated with specificity

o [1] irrelevant – weak objection b/c broad scope of discovery [2] don‘t

understand [3] privileged or work product

o Rule 33d: When an answer can be derived from the business records ,

they can hand over those records to afford the party serving the

interrogatory reasonable opportunity to examine.

o Rule 37(a) The opposing party may file a motion to compel an answer

after an objection

ii) Why Use Interrogatories:

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(1) Identify people to depose (2) request docs with relevant information

(3) make the party pin down the basis of its contention



e) REQUESTS FOR PRODUCTION AND SUBPOENAS DUCES TECUM –

Requests to get a party or non-party to give info. Non-party need not produce

unless subpoenaed.

i) Rule 34: Production of Docs (-- OTHER PARTY --) Gives a party a right to

compel an opponent to produce materials

(a) Scope: [1] must be a request by a party [2] to copy or inspect [3] lists

kinds of docs

(b) Procedure: [1] Request typically preceded by definitions

[2] description of docs requested (usually just general category)

[3] Objections: a) too vague a question b) too burdensome c)

irrelevant d)privilege or e) work product doctrine

a. Overcoming Objections: Rule 37(a) motion to compel –

but this starts the costly nightmare…

ii) Use of Rule 34:

(1) More helpful b/c the written records were not made by the lawyer

(2) Usually more useful than interrogatories because the documents are

real pieces of evidence that can be used in trial

iii) Rule 45: Subpoena ( -- NON PARTY -- )

(1) For docs, dep, or trial testimony. If > 100 mile travel, can‘t work. For

trial, then you could read dep.

(i) For docs and dep, any dct can issue. For testimony, only dct

holding trial can issue (

(2) 45 (c)(2)(A): The non-party does not have to be deposed, can just ask

for docs. Don‘t have to turn over docs w/o subpoena.

(a) Failure to respond to a subpoena = CONTEMPT

(3) 45 (3)(A): Court can QUASH a Subpoena if it:

(a) Fails to allow reasonable time (2) creates undue burden (3) requires

privileged information

(b) Requires (1) Trade Secret (2) unretained expert‘s opinion or (3)

requires > 100 mile travel

(c) Motions to Quash can be made by

(i) person served

(ii) any party or nonparty if they claim a personal right or privilege

that would be violated by info. release

(4) Limitations:

(a) Rule 45 (b)(1): Party serving the subpoena must notify other parties to

allow them to move for quashing (nonparties may never learn!)

(i) Party can‘t look at documents before ―return date‖ – to allow the

party or non-party time to move to quash the subpoena

iv) How can a party protect itself from non-party‘s voluntary disclosure?

(1) protective order (26(c)) to prevent the other party from viewing docs.



f) PHYSICAL AND MENTAL EXAMINATIONS

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i) Rule 35: Physical and Mental Examinations (p. 106)

(a): Upon motion and good cause shown a party can move for physical exam

of the other party or someone in their custody or legal control

(a) **Must have a court order (only discovery tool requiring this).



g) REQUESTS TO ADMIT

i) Rule 36: Requests for Admission (similar to Rule 8)

(1) Request for Admission: Can only be made by parties seeking the truth

of matters w/in scope of discovery

(a) CANNOT be used to seek questions of law – only factual matters and

the application of law to fact

(b) Purpose: narrow the issues for trial

(2) Response:

(a) If no response in 30 days, matter deemed admitted (court can extend)

(b) Must admit or deny the question OR say after a reasonable inquire:

don‘t know

(i) Propounding party can ask court to rule on sufficiency; court may

require other party to re-answer (or deem issue admitted)

(c) OBJECT: same as for interrogatories OR the matter is not covered by

Rule 36 (Qs of law cannot be sought for admission)

(i) Other party must then ask court to rule on sufficiency; court can

order an answer (or deem admitted)

(3) Rule 36(b): Court can later allow a withdrawl or amend of an

admission for purposes of justice (other party must show prejudice like

Rule 15)



h) OTHER RULES

i) Rule 26(e)(2): Duty to Supplement – non-mandatory disclosures

(1) Included: Responses to [1] interrogatories [2] production requests [3]

requests for admissions

(2) Not Included: Deps of a person or party (experts – see 26e1)

ii) Rule 26 (6): Certification

(1) All non-mandatory discovery requests must be signed to certify [1]

consistent with the rules or good faith modification [2] not interposed

for improper purpose ―harass or cause unnecessary delay‖ [3] not

unreasonable or unduly burdensome

iii) Appropriate Sanctions?

(1) Most courts have prohibited the admission of the undisclosed evidence

or prohibited the undisclosed witnesses from giving testimony

(2) Court has the option of postponing the trial of a case, or granting a

continuance or recess, so that the other side may complete discovery

and prepare to meet any new testimony



2) Obstacles to Discovery

a) MOTIONS FOR PROTECTIVE ORDERS

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i) Rule 26(c): Court may make any order to protect a party or person from

annoyance, oppression, or undue burden or expense.

ii) Why?

(1) To prevent adverse party from obtaining docs had by non-party

(2) Dep at inconvenient time or place (only for parties, b/c non-parties

have subpoena protection

(3) To limit the evidence that can be looked at in a dep

(a) Can already instruct deposee not to answer, but this helps ensure that

privilege

(4) To order confidentiality about some discovery info



b) THE WORK-PRODUCT DOCTRINE – Trial preparation materials.

i) Rule 26(b)(3): Codifies the Hickman v. Taylor distinction btw. Regular and

Opinion Work Product (WP)

(1) WP = things ―prepared in anticipation of the litigation‖

(2) Regular WP: Any info gathered by lawyer‘s industry that does not

reveal opinions or mental impressions of the lawyer

(a) Qualified protection: can be overcome by showing of necessity and

undue hardship to find materials in another manner

(3) Opinion WP: ―mental impressions, conclusions, opinions or legal

theories of an attorney‖

(a) requires a higher showing of need – unclear if absolute protection

ii) What qualifies as WP (―things prepared in anticipation of lit”)??

(1) Federal Law governs in Fed Cts (but other privileges come from state

laws)

(2) Party invoking protection bears burden of proving material is WP

(3) Courts are split:

(i) Temporal Req: must be prepared when objectively reasonable

person would have anticipated litigation

1. Another court said doc protected as long as a reasonable

probability of litigation at time made (In Re Sealed Case)

(ii) Causation Req: the doc must have been prepared because of the

prospect of litigation (if not two reasons, not protected WP)

1. Hickman court said ―for the sole purpose

(4) But all courts agree that if substantially the same doc would have

been prepared regardless of trial – no protection

(5) Seems you can have ―WP‖ from past litigations as long as the WP was

prepared by or for the party in this suit

iii) Procedure to invoke WP (Harper)

(1) Rule 34 request for documents

(2) Other party responds and defines which docs in a category must be

protected (26b5) – privilege must be expressly invoked

(3) Rule 37a motion to compel

(4) Court may review the documents in camera (if the party resisting the

discovery makes a clear basis for invoking the protection)

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iv) WAIVING THE PROTECTION – Disclosure to 3rd parties does not

necessarily waive protection

(1) TEST – whether an action substantially increased the chance your

adversary would get the information?

(2) Waiver is limited to docs disclosed



c) PRIVILEGES

i) Rule 26(b)(1): Permits discovery of all ―matters not privileged‖ – not

uniformly defined

ii) Fed Rules Evidence 501 (PM 82):

(1) § 1332 cases (diversity): state law governs privilege

(2) § 1331: fed law (inc. fed common law) governs

(3) **WP is always fed Law in Fed Ct

iii) Three rights protected

(1) Right to refuse to disclose info otherwise required

(2) Right to prevent someone from disclosing info

(3) Right to refuse to become a witness

iv) When are these right protected? (i.e. types of privilege

(1) Doctor/Patient: recognized by most states but not fed law

(2) Lawyer/Client: All states and fed (but varies in depth)

(a) Basic Reqs (US v. United Shoe)

(i) Allows client-lawyer and lawyer-client

(ii) Communication was connected to legal services and made in

private

(iii)Communication has been claimed and not waived

(b) Waiver: Knowing disclosure to 3rd parties; some cts say even

inadvertent disclosure (but joint Ds can share info)

(i) Waiver affects all materials on the same subject matter!!

(ii) Showing docs to a witness – will waive privilege

(iii)***You can still protect document baised on WP doctrine

(c) A/C Privilege and Corps (Upjohn) –

(i) A/C privilege extends beyong the ―control group‖ (i.e. mgmt) and

extends to communications between att‘y and all employees

1. *rationale – protect not only professional advice but giving of

info to lawyer (ppl need to trust lawyer)

(ii) However, if employees want to gain legal advice for selves during

interview, privilege is waived (US v. Stuckey)

1. Ethical Rule: Lawyer must tell the person he represents the

corp. and not give legal advice to the employee



3) Discovery Involving Experts

a) Testifying Experts can give opinions about specialized areas not w/in jury‘s

realm of knowledge

i) Rule 26(a)(2): Mandatory Disclosure for Testifying Experts

(1) Identity of Experts

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(2) Written Report Prepared by expert stating: [1] opinions to be

expressed at trial [2] their basis [3] compensation [4] qualifications

(a) Policy: allow other party to prepare rebuttal testimon and cross

examination

(b) Fairly serious sactions (Rule 37) for not disclosing or supplementing

(3) Rule 26(b)(4)(a): A party can depose expert witness…after the report

has been provided

(4) 26e1  Duty to supplement both report and experts dep

ii) Document Discovery for Testifying Experts

(1) What docs made by expert are discoverable?

(a) Most anything prepared by testifying witness for trial (i.e. draft report,

notes) are ordinarily discoverable (in addition to the mandatory

disclosure of the final report.) (Krisa)

(2) What docs made by att‘y for expert are discoverable

(a) Letters sent to expert to prepare him for trial are (opinion?) work

product (26b3) BUT

(i) when an att‘y furnishes WP (fact OR opinion) to testifying expert,

info is discoverable. (Muselman)

1. Krisa says protected, but most courts follow Muselman

2. *policy – see how att‘y shaped the expert‘s testimony

3. Easy to overcome by only calling in instructions… other party

could ask about those instructions during deposition, but this

technique is less effective

(ii) Three interpretations of Muselman

1. WP applies but is overcome by need

2. Party waived WP protection by giving it to expert

3. 26a2b negates WP protection



b) Consulting experts only help lawyers prepare case, not used at trial – Mandatory

Discolsure Rules DO NOT APPLY unless opposing part can show exceptional

circumstances

i) Unclear if party even has to disclose the number or identity of consulting

experts

c) Fact Witnesses

i) Unclear if Doc Discovery applies to fact witnesses (FroEvidence say court‘s

discretion)



4) Sanctions Related to Discovery

a) Rule 26(g)3: Sanctions if certifications made in violation of this rule certification

i) Reasonable expenses incurred b/c of violation

b) Party who fails to disclose info in accordance with Rule 26(a) is precluded from

introducing the info at trial

c) Rule 37: Failure to Make or Cooperate in Discovery: Sanctions

i) Rule 37 (a): Motions to compel Discovery (Rule 33, 34, Depositions etc…)

(1) If the other party responds but objects to one of the questions

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(2) The attorneys must attempt to resolve discovery disputes informally

before filing a motion to compel discovery.

(3) If can‘t resolve, can file motion to compel with a brief supporting the

motion…other party will also submit brief

ii) Rule 37 (a)(4) Sanctions

(1) Party that loses motion must pay atty‘s fees – unless shows good reason –

small sanction

ii) Rule 37(b) Severe Sanctions (when a party refuses to comply with an order to

compel discovery)

(2)(A): The court can assume the docs conclusively support requesting

party‘s version of the facts

(2)(C): Court can even enter verdict!

(1) Court could also apply servere sanctions if:

(a) Rule 37(c)(1): party fails to disclose mandatory discovery or

supplementation

(b) Rule 37(d): if [1] party does not show for dep [2] fails to answer

interrogatories [3] ignores request for doc production

(c) Court could go as far as to enter verdict, but more likely to punish that

aspect of case (i.e. disallow testifying expert b/c of failure to

supplement) or charge fees



5) Informal Discovery – outside adversarial context

a) Ex parte contacts with represented parties

i) Fact Witness: atty‘s have a right to interview an adverse party‘s ―fact‖

witnesses w/o presence or consent of opposing counsel if witness is willing

(IBM v. Edelstein).

ii) Represented Parties: A lawyer cannot communicate concerning the subject

of case w/ a party or non-party known to be represented by another lawyer in

the matter (exceptions: consent of other lawyer or court)

(1) Exact rules vary by state, but generally uniform

iii) If one party is a corp, who can lawyer talk to informally?

(a) Present Employees: Most courts say that some are covered : managers,

employees whose acts/omissions can be imputed to the corp, ppl

whose statements count as corp. admission

(i) In practice, call other lawyer and request; if they say no file a

motion with the court to rule on the issue

(ii) Former Employees: Most states do not include former employees

as part of the corp party

iv) Other Limitations: Lawyer must tell ex parte party who he represents, not give

legal advice, cannot discuss priviliged or protected info or trade secrets

b) Ex parte contacts with people who have privileged info

i) Some courts disallow any ex parte contacts with non-parties with privileged

info (such as former employees) and will presume all such contacts resulted in

disclosure (presumption may be rebuttable)

(1) *rationale – Lawyers have an ethical duty to avoid actions that may

cause someone to divulge other side‘s confidential info.

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c) Limitations on ex parte contacts with other party‘s expert witnesses

i) Because the rules give detailed procedures for procuring expert witness

information, it implies that all other forms of contact are prohibited

d) Sanctions: Court can say that the contact tainted the case, and dismiss the lawyer

from the case



1) Three Other Types of Sanctions

a) Rule 11: Signing of Pleadings, Motions and Other Papers…sanctions

i) Either by signing a paper or advocating a paper in court, the lawyer is

certifying (after an inquiry reasonable under the circumstances:)

(1) Not presented for improper purposes, no frivolous legal contentions, facts

have evidentiary support (or can make lesser cert that facts are likely to

have evidentiary support on discovery)

(a) Denials of factual allegations must also be warranted by evidence

ii) Rule 11 violations can be raised (1) sua sponte or (2) by other party

(1) 11c(1)a: ―Safe Harbor Provision‖ – If raised by other party, party must

first give 21 days of notice (to allow opponent to amend the offending

paper) before serving the motion.

(a) Party cannot make a rule 11 motion after court has ruled on the paper

(b/c no chance to amend!) (Ridder)

(2) If a court raises issue sua sponte there is no ―Safe-harbor‖ provision (and

Ridder does not apply)

iii) Sanctions and Limitations

(1) Ct. can award nonmentary and monetary sanctions such as ―fee-shifting‖

sufficient to deter future behavior (but if court raises issue, offending party

can escape sanctions by voluntary withdrawl).



b) 28 USC § 1927 (p. 278): Allows fed cts to sanction attys, not clients

i) Standard: ―Unreasonably and vexatiously‖ multiplying the

proceedings…assign fee shifting and excess costs to the attorney personally

c) Inherent Power of the Courts (derived from Art. III)

i) Applies to lawyers or parties

ii) Standard: ―bad faith‖ misconduct (higher than just reckless abuse of judicial

process) (Keegan)



Emergency Relief Pending Trial



1) Temporary Restraining Orders (Rule 65b)

a) Applications for TRO‘s can be gotten ex parte (w/o opposition) if:

i) Immediate and irreparable injury

ii) Certify that efforts were made to notify other party – or explain why no efforts

made

iii) TRO can only last for 10 days (another 10 day extension possible)

b) Why Use TRO?

i) Freeze proceedings while you seek a preliminary injunction

ii) Can be granted w/o forward notice, PI‘s cannot.

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2) Preliminary Injunctions (Rule 65a)

a) Notification: All motions must be served on other parties (before or same time as

filed w/court) more than five days before hearing (Rules 5 and 6)

i) Court can modify notice req if exceptional circumstances (for example, if no

facts are in dispute or if the party has received a long period of actual notice

but no formal notice).

b) Other Differences: no time limit, contestable, apppeals allowed (unlike TRO)

(1) Contestable – Both parties have opportunity to submit papers, court can

(but does not have to) hold live evidentiary hearings

c) Technical Reqs (applies to TROs too)

i) 65(d) Oder must state the reason injunction was issued, must be specific (what

can/cannot do), can apply only to parties or people in privity w/them

ii) 65(c): Party seeking TRO or PI must post a bond to secure possible losses to

other side if the TRO or PI later turns out to be improper (but the bond amount

can be nominal if party is poor)



3) Substantive Requirements for Injunctions

a) 2 Part Test (Roland Machinery)

i) Motioner must show irreperable injury: a need for immediate equitable

relief for which there is no adequate remedy at law (damages won‘t suffice)

(1) ex: bankruptcy, un-collectable damages against insolvent D, lost profits

will accrue (hard to calculate so prevent now)

ii) Motioner must show some likelihood of success on the merits (some say

probability of succes, Posner says ―more than negligble‖)

b) Posner’s Calculation

i) For Posner, the two part test serves as a threshold test. If passed, court must

then measure:

(1) Irreprebable harm (to applicant and others) if PI is denied X Chance that

applicant is right on the merits VERSUS

(2) Irreprebable harm (to opposing party and othrs) if PI is denied X Chance

that applicant is wrong on the merits.

ii) *rationale – Courts should make the choice that minimizes irreprebable harms

iii) Criticism – A party w/ a huge irreprebable harm could get PI despite a very

low chance of success; this would dramatically affect the settlement value of

case… losing party might want to settle to get out of PI even though other

party had close to no chance of winning.



Adjudications Without Trial



1) Pre-Answer Motions for Dismissal (i.e. 12b6) – see above



2) Summary Judgment (Rule 56)

a) Court can look at evidence submitted by parties, usually in the form of affidavits.

Any other sworn admissible evidence can also be used (deps, interrogatories, etc.)

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b) Timing: D can move at any time, P must wait 20 days after filing complaint (to

give D time to answer)

i) Rule 56(f): Party can move for dismissal of motion or delay in hearing if did

not have time to discover evidence to rebut SJ motion (Ct. discretion)

c) Standard if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law

i) 12b6 tests the legal sufficiency of allegations themselves, while SJ often

centers on the sufficiency of the facts backing them up

ii) Rule 56e  mere allegations in an unsworn complaint are NOT treated like

affidavits – they can‘t be used to deny (or grant) SJ motion

d) In what types of cases could SJ be appropriate?

i) If case could have dismissed by 12b6 if pleadings were more specific

ii) If one party bears burden of proof on a crucial allegation and fails to introduce

evidence supporting that allegation (see Celotex)

(1) Moving party does not have to introduce evidence showing other party‘s

allegations are untrue, just point out with specificty that the record does

not support that allegation. (then other party must rebut)

iii) If moving party introduces uncontroverted evidence supporting crucial

allegation on which it has burden of proof, and other party cannot rebut

e) Rule 56(c) Hearing – not live evidentiary hearing but oral argument.

(1) Only evidence admissible at trial is admissible here, but objections can be

waived

f) When is SJ Appropriate?

i) Court‘s role is not to weigh the evidence and determine the truth but to

determine whether there is a genuine issue for trial. Factual issues are genuine

only if evidence in record shows that a reasonable jury could find for the non-

moving party (Liberty Lobby)

(1) This means standard of proof matters. (i.e. could a reasonable jury find

the evidence is clear and convincing?)

ii) *note – 56d allows for partial SJ (which simplifies issues to be tried)



3) Dismissal Under Rule 41

a) Rule 41(a): Voluntary Dismissal

i) Allows P to dismiss case w/o affecting legal rights. Three Types

(1) Unilateral: P can dismiss unilaterally if files before D files answer or SJ

motion

(a) Limit: If P has previously voluntarily dismissed, operates as

adjudication on the merits

(2) By Consent: Both parties sign stipulation of dismissal (can be w/ or w/o

prejudice)

(3) By Leave of Court: P files motion w/ court

b) Rule 41(b): Involuntary Dismissal

i) D can move fore dismissal of Ps complaint for failure to prosecute or failure

to comply with FRCPs or an order of the court

ii) Dismissal w/ prejudice (adjudication on the merits, but only means you can‘t

bring it in that court)

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(1) For diversity, any claim preclusive effect is determined by the claim

preclusion law of the state where that district court sits. Fed Q, look to

fed common law on the topic.

c) Rule 41(c): Dismissal is party neutral: applies to counterclaims and cross-claims



4) Default Judgments: Rule 55

a) Occur only when D does not answer a complaint that was properly served (either

through answer or pre-answer motion)

b) Two Step Process

i) Entry of Default by clerk of court (just a note on court‘s docket)

ii) Default Judgment by judge

(1) exception: clerk can enter judgment if D has not ―appeared‖ in the action

(viewed liberally), P is seeking a certain sum, and D is competent

iii) notice: If D has ―appeared” in the action, he must be served a notice of the

default app and entry of default at least 3 days before default judegement

c) 55c  D can set aside an entry of default through showing good cause (leniant)

(a) Factors to consider: does D now have an articulatable defense; was P

prejudiced by delay, was D culpable for delay?

d) **Damages  remember rule 54c has a special exception for default judgments;

damages cannot exceed pleading amount



Trial



1) The Right to a Trial by Jury (only applies to fed courts)

a) 7th Amendment: ―in suits at common law…right to a jury should be preserved‖

i) Preserves right to a jury in suits that were traditionally in courts of law not

equity (monetary relief as opposed to injunctions, SP, reformation, recission)

b) How does a party obtain a jury trial?

i) Rule 38b: The jury trial must be demanded by motion served to all parties and

the court w/in 10 days of the last pleading

(1) Rule 39b: If the right has been waived, can move for the court to grant a

jury – discretionary

(2) Rule 38d: If a party has demanded a jury, cannot be removed w/out all

parties consent

c) How does the 7th amend apply to merged cases with multiple claims?

i) Even if the legal claims are much less central to the case than the equitable

claims, the court still must first hold a jury trial on the legal claims (Beacon

Theaters)

d) How does the 7th amend apply to causes of actiont that didn‘t exist in 1791?

i) In Curtis, scotus held that 7th amend is applicable to newly created statutory

rights and requies a trial by jury when appropriate.

ii) Two part-test (See Chauffers v. Terry)

(1) Look for a historical analogy to the cause of action? (equitable or legal)

(2) Look at the remedy: is it legal or equitable?

(3) **note – second part of test dominates first (unless a very close historical

analysis)

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2) Motions for Judgment as a Matter Of Law (Rule 50)

a) Rule 50: ( for jury trials)

(a) 50a  Before Verdict: If a party has presented its evidence and there is no

legally sufficient evidence for a reasonable jury to find for them – then the other

party can win if the issue is critical to the case (like SJ)

(1) Standard: similar to SJ – sufficiency of the evidence + must draw all

reasonable inferences for the non-moving party.

(2) Waiver: If don‘t raise 50a, can‘t raise 50b!!!

(b) 50b  After Verdict: NOW, can move for JMOL under 50b as long as

sought it under 50a at some point before case submitted to jury.

(1) (Previously, was only if 50a motion made after close of argument)

(2) *reasoning – case was ―conditionally‖ submitted to the jury

b) Rule 52 (for bench trials)

i) Similar provisions except:

(1) Judges can weigh evidence, judge must make specific findings of fact and

conclusions of law (in addition to judgment),

(2) Can raise issues about sufficiency of the evidence at appeals even if they

weren‘t raised before

(3) 52c allows for a JMOL on partial findings (for certain issues, not whole

case)

c) The importance of Waiver

i) In Wheelan, D argued a specific doctrine in their 50b JMOL motion that they

didn‘t argue in their 50a motion. COA ruled that D had indeed waived right

argue that issue, but that P waived right to object by not doing so when the

50b JMOL motion was made.

ii) A cannot appeal a JMOL ruling unless you raise it both times (Unitherm)



3) Motions for a New Trial (or to amend judgment) (Rule 59)



a) Timing: Rule 59 (new trial), Rule 59e(amend. judgment) motions must be filed

w/in 10 days of the final judgment

i) **If not timely, will be considered a (tougher) Rule 60 relief from judgment

b) Grounds for Motion

i) The jury‘s verdict was against the weight of the evidence even though the

evidence is legally sufficient for the verdict (rarely granted)

ii) The judge made a reversible error about the admission of evidence or jury

instruction

(1) Rule 61 explains this error must ―affect the substantial rights of parties‖

(i.e. prejudicial rather than harmless)

(2) Preserving the Motion: In general, a party must preserve the motion by

objecting (with specificity) to the error at trial (exception: for jury

instructions, can be OK if party gave its own or if ―plain error‖)

iii) The jury‘s award of damages is excessive or inadequate… (either legally

insufficient or against the weight of the evidence) OPTIONS:

(1) Judge can award a new trial (liability and damages OR just damages)

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(2) Remittur: If D wins motion (award too high), judge can give P option of

taking less money or retrying case.

(a) Ps consent required (CANNOT simply lower award) but D‘s is not!

(3) Additur: If P wins (award too low), judge can give D option of paying

more damages or retrying case

(a) However, consent of both parties is required (Dimick) to avoid a

violation of 7th amend

c) Waiver rules (more flexible)

(1) A party can raise motion on appeal even if didn‘t raise it after judgment

(2) Rule 7 – motion can‘t be amended, but court has discretion to grant new

trial on grounds other than those in motion



d) Rule 59(c): Motion for a new trial based on affidavits

i) If the moving party has discovered new material evidence that was not

discoverable earlier

ii) Juror Misconduct – lying during voir dire or considered evidence outside the

record



4) Motions for Relief from Judgment (or order) (Rule 60)

a) Timing: Within a ―reasonable time‖ (but absolute cap of a year for reasons 1-3)

i) Grounds:

(1) Mistake, inadvertence or excusable neglect (can include negligence)

(a) Usually only for default judgments against a party who could not appear –

hard to satisfy

(2) Newly Discovered Evidence

(a) Reqs: Evidence [1] would alter the result of the trial [2] was not

discoverable by due diligence before the trial [3] relates to facts that

existed at time of trial (See Patrick v. Sedwick, rejecting motion when

evidence was a new discovery that would make P‘s treatment less costly)

(3) Fraud, misrepresentation or improper adverse party conduct

(a) Improper juror contact, perjured testimony not deliberately obtained

(b) **note – If ―fraud on the court‖ (i.e. bribing jurors), court has powers to

set aside judgment that extend beyond Rule 60.

(4) Judgment is void – (i.e. no SMJ)

(a) Can contest PJ if default judgment, not otherwise

(5) Judgment based on a precedent that has been vacated

(a) Applies to claim and issue preclusion but NOT stare decisis (i.e.

interpretation of a statute which has since been rejected).

(i) Correct action for stare decisis would be to appeal, arguing

misinterpretation

(6) Any other reason (i.e. breach of settlement agreement)

(a) Cannot include reasons above just to avoid the 1 year time limit



Appeal



1) Jurisdiction

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a) Two Questions:

i) Did the the district court had proper SMJ over the case?

ii) Does the Ct. of Appeals have proper SMJ to take the appeal?

b) Final Decisions  28 USC § 1291: Fed. COAs have SMJ over all ―final

decisions‖ (including collateral orders) from dcts.

i) This is not discretionary- the court must hear the appeal

ii) A ―final decision‖ is a judgment that ―ends the litigation on the merits and

leaves nothing for the court to do but execute judgment.‖ (and perhaps assign

atty fees)

(1) Unless dct explicitly says, any order which adjudicates fewer than all the

claims shall not finalize any decision (inc. partial SJ orders)

(a) Rule 54b allows dct to override this by directing entry for judgment

and expressly saying no reason to delay appeal

(2) ―Final decision‖ also includes Collateral Orders (Cohen)

(a) conclusively determines a disputed question, resolves an important

issue completely separate from the merits of the case (does not merge

w/ final judgment), and effectively unreviewable on appeal from final

judgment

(b) ** example – a decision not to follow state law requiring P to post a

bond before trial (Cohen)

(3) Application to Discovery: Generally orders are not immediately

appealable – merge to final judgment. Only (risky) option is to refuse to

comply and appeal either criminal contempt charges or final judgment

(a) Except: If you claim privilege over 3rd party docs but lost Rule 45

motion to quash subpoena (Pearlman doctrine)

c) Interlocutory Appeals (can be made w/o final judgement)

i) Statutory Grant (also some specialized FRCP provisions)

(1) 1292(a) – Prelim Injunctions

(a) Orders that have practical effect of granting, modifying, or denying a

PI (but not TROs or protective orders)

(i) Order must have serious consequences and can be effectively

challenged only via immediate appeal

(2) 1292(b) – Cerification (Discretionary)

(a) Dct must cerify that (1) order involves a controlling question of law

about which there could be a dispute and that (2) the appeal would

materially advance the termination of the litigation

(b) Requires approval of party, dct, and COA

d) All Writs Act (not exactly an appeal)

i) 28 USC § 1651: federal courts ―may issue all writs necessary or appropriate in

aid of their respective jurisdictions‖

(1) ―In aid of its jurisdiction‖ is read liberally… but the stanard for a

successful appeal is very high. Petioner must show

(a) No other adequate means to obtain relief (i.e. can‘t appeal at final

judgement)

(b) Dct made some clear error (clearly abused discretion, failed to perform

a mandated duty, usurped judicial system).

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2) Procedure for Taking an Appeal

a) Discretionary Appeal

i) Only have 10 days after Dct certifies order to petition COA

b) Appeals as of Right

(1) FRAP 3c: notice of appeal must: [1] specify the party taking appeal [2]

designate the judgment, order, or part thereof being appealed [3] name the

court to which the appeal is taken

(2) FRAP 4: Must be 30 days after entry of judgement (except tolled if timely

post judgement motion made)

(a) Obvious if judgement and order, but not if final judgement b/c

sometimes Dcts forget about Rule 58 req of a separate doc. Thus:

(i) Rule 58b2 – if so, judgement will still be deemed to be entered if

(a) docket says entered and (b) 150 days have run from that date

(3) Merger Doctrine: Interlocutory orders made before final judgement merge

into it, so appealing ―final judgement‖ sufficient to preserve objection

c) Cross Appeal (must file 14 days after other party files appeal)

i) Only way winning party can get above max damages

ii) Even w/o cross appeal, winning party can argue any reasons about why

judgement should be affirmed, even diff reasons than Dct used – *except

certain waivable legal reasoning that wasn‘t mentioned at trial



3) Five Limitaitons to the Scope of Review

a) Pary must have filed a notice of appeal designating that judgement or order or

one it merged into.

i) Better to appeal from ―judgement‖ (but also list all objectionable post-

judgement orders)

b) COA generally only consider arguments raised in the appellate brief (except SMJ)

c) Trial court record must adequately reflect that the alleged error really ocurred

d) Trial court record must show that appellants arguments were properly preserved

i) In general, must OBJECT

e) Error must not be harmless (but rather, prejudicial)

i) Circuit courts disagree on who bears the burden of proof



4) Standards of Review

a) Pure Questions of Law – De Novo (no deference to Dct)

b) Questions of Fact

i) Facts found by jury

(1) Arguments that decision was against ―manifest weight of the evidence‖

are reviewed only for ―abuse of discretion‖ by dct (almost never granted)

(a) Scalia (dissent) argued this violates 7th amend b/c common law didn‘t

allow COA to review facts (Gasperini)

(2) Questions of legal sufficiency (no reasonable jury would have found on

these facts) are reviewed de novo as they are considered questions of law

ii) Facts found by the district judge

(1) Rule 52(a): Can only be reviewed if they are ―clearly erroneous‖

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(a) A ruling is clearly erroneous even if there is evidence to support it as

long as the COA is left with the definite and firm conviction that a

mistake has been committed (Anderson v. Bessemer City)

(b) Same standard regardless of the importance of the facts in dispute or

the type (i.e. oral versus written)

c) Mixed Questions of Law and Fact

i) COA will attempt to break down how judge applied law to facts; if they

believe Dct made a reversable legal error, they will remand with appropriate

instructions (Pullman)

d) Rulings Commited to Dcts Discretion

i) Standard: Abuse of Discretion

(1) If court actually had discretion, its usually valid (as long as reasoning

process is legally valid – no coin flips allowed!). Sometimes, however,

court doesn‘t actually have discretion based on facts at hand.



The Binding Effect of Prior Judgement



Each state has its own laws about the preclusive effects about the judgement of its own

state‘s decision; there is also a federal common law about federal law issues in fed court



Claim Preclusion (Res judicata)

1) Standards

a) Most common (used for fed Qs in fed cts too)  Party barred from raising any

claims that arise out of the same transaction or occurrence of the first lawsuit

(unless the claims were barred in the first suit)

i) Mirrors the test for compulsory counterclaims under Rule 13a

ii) Caveats: Case must be a final judgement and on the merits

(1) Does not apply to dismissal for SMJ, PJ, venue, and the like

(2) In fed cts, does apply to 12b6, SJ, and Default (Rule 55)

iii) Against Whom: Only applies to suits against the same parties in the first suit

or those in privity with them. Applies to both P and D

(1) In an enforcement proceeding, D cannot assert new defenses/legal theories

under merger doctrine (D also barred from compulsory counterclaims)

(2) Privity: (child/gaurdian) (indemnitor ―vouching in‖)

iv) See Jones v. Morris Bank, disallowing bank from suing for deliquent car

payments when bank previously sued for previous payment and at that time

they could have (but did not) asserted a claim to reposess the car.

b) Alternate standard (somewhat broader) (VA)  same evidence test: judgement

bars not only any claims asserted but later assertions of any claims that rely on the

same evidence used in first suit.

2) Procedure:

a) Rule 8c: Party must assert claim preclusion in answer (or reply) as an affirmative

defense – otherwise waived (unless amended [Rule 15])

b) Party must then file motion for SJ (Rule 56) supported by evidence outside the

pleadings (12b6 won‘t work b/c just pleadings not adequate proof)

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Issue Preclusion (collateral estoppel)

1) What is the ―same issue‖?

a) Same issue if same general legal rules govern both cases and facts of both cases

are indistinguishable as measured by those rules

2) Fed Qs in Fed Courts  Three Reqs:

a) The same issue must have been actually litigated and decided after full and fair

opportunity to litigate

i) i.e. a party that admits an issue in one proceeding may then deny it in another

– b/c issue was not ―actually litigated‖

b) The decision on that issue must have been necessary to the judgement

i) *note – where there is a general verdict about more than one issue, issue

preclusion may not bar the parties from reraising same claims or defenses in

another lawsuit b/c no certainty on what ―judgement‖ decided, let alone what

issue was necessary for judgement. (See Russel v. Place)

c) A valid final judgement was entered on the merits

3) What types of issues are subject to issue preclusion?

a) DOES apply to pure questions of fact (if unchanged)

b) Does NOT apply to pure questions of law

c) Mixed Questions of Law and Fact (See Sunner)

i) If there has been a change in actual law or a substantial change in the legal

environment that recognizes a new understanding of the legal rules, issue

precluse does not apply prospectively, although it does retrospectively

(1) i.e. couldn‘t try to relitigate case to lower damages but could try to end a

permanent injunction

4) Who can invoke (and who is bound)?

a) Bound  Only bound if party or in privity

b) Invoke  Modern erosion of old mutuality rule (which said could not invoke

unless party)

i) Defensive NonMutual Issue Preclusion

(1) Scenario: Case1: P v. D1 (judgement for D1) – Case2: P v D2

(2) Some jurisdictions allow D2 to invoke issue preclusion of any common

issues decided in first proceedings (providing all regular reqs met)

(a) Cali (Bernhardt); Fed Common Law (Blonder-Tongue)

(3) Policy: efficiency (P has incentive to join all Ds to prevent ―wait and see‖)

and avoid inconsent results

ii) Offensive NonMutual Issue Preclusion

(1) Scenario: Case1: P1 v D (judgement for P1) – Case2: P2 v D

(2) Fed common law (for fed Q issues) would allow P2 to invoke issue

preclusion at the discretion of the Dct (Parklane Hoisery)

(a) Limits  Dct should not grant discretion if

(i) If the P In the new action could easily have joined in the first suit

(ii) If issue preclousion would be unfair to D… examples:

1. D did not have big incentive to litigate in first case as claim

was minimal

2. D now has procedural opportunities not available in first suit

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3. Inconsistent judgements in prior action (railroad crash hypo:

say P1 lost against D and P2 won; P3 can‘t invoke)

(3) Policy: efficiency, will magnify benefits of first suit if correct (but

magnify its abberation if wrong), might promote ―wait and see‖



Intersystem preclusion – Preclusive effects in other jurisdictions

1) State-State Preclusion

a) Ruling Laws:

i) Article 4 § 1: FFC clause – each state must give full faith and to judicial

proceedings of every other state

(1) and Congress can pass statutes relevant to this

ii) 28 USC § 1738: Records and proceedings shall have the same FF&C in every

state as they have by law or usage in courts of the originating state

b) Requirement: The courts of one state must give a judgement the same preclusive

effect that judgement would have in the rendering state

i) If the rendering state would preclude the issue or claim, it must (even if it

normally wouldn‘t)

ii) If the rendering state wouldn’t preclude the issue or claim, it cannot (even if it

normally would)

c) Policy: predictability in verdicts, federalism interests

2) State-Federal Preclusion (under § 1738 not Article IV)

a) Federal court will give same preclusive effects as the rendering state:

i) Exception: B/c req is statutory and not const, it may be supervened

(1) Ex - Fed habeas corpus statutes explicitly opt out of § 1738

3) Federal-State Preclusion (when the first case is in fed court)

a) B/c this is not listed either in consitution or statute, its an issue of fed common

law for both types of cases (Semtek Int‘l)

i) Under Semtek‘s understanding of our federal system, that issue is not within

the state's legislative competence.

b) Fed Q § 1331 Cases: Fed judgment in Fed Q should have preclusive effects of

applicable federal law…no matter where the second case is brought

i) This means a state would have to apply fed issue preclusion rules even if they

don‘t recognize them (if Case #1 fed ct and Case #2 state ct)

ii) But- if a federal Q case arises in state courts then state preclusive laws apply

(even if second case is in fed ct!)

iii) *Policy – fed interest in uniform rules > prospect of forum shopping

c) Diversity § 1332 Cases: Determine preclusive effect by looking at the preclusion

law of state in which that diversity court sits (unless ―incompatable with federal

interests)

i) **The FRCP don’t address preclusion issues. So even if there is a dismissal

under 41b, you then look to either state law (1332) or fed common law (1331)

(i.e. Blonder-Tongue) to see the preclusive effects of that judgment.

ii) i.e. if dismissal b/c of statute of limitations would not be claim preclusive in

CA state ct, then a dismissal by a federal ct sitting in CA would not be claim

preclusive (Semtek Int‘l)