Megan L by dandanhuanghuang


									                                                                        Megan L. Chang
                            Table of Contents

1.   List of Federal Rules of Civil Procedure………………………………….…………………….................... 2

2.   Cases and Topics Covered………………………………………………..…………………………………. 5

3.   Subject Matter Jurisdiction (§1245/1257)……………………………….……………………………....... 10
         a. Diversity Jurisdiction (§1332)…………………………………………………………………… 11
        b. Arising Under Jurisdiction (§1331)…………………………….………………………………… 12
        c. Supplemental Jurisdiction and (§1367)..…………………………………………………………. 17
        d. Removal Jurisdiction (§1441/1446/1447)…..…………………………………………………..... 23

4.   Personal Jurisdiction…………………………………………………….…………………………………. 25
         a. Specific Jurisdiction……………………………………………………………………………… 29
         b. General Jurisdiction…………………………………………….………………………………… 30
         c. Rule 4……………………………………………….……………………………………………. 34

5.   Venue (§1391/1404/1406)………………………………………………….……………………………… 37
        a. Forum Non-Conveniens………………………………………………………………………….. 40

6.   Ascertaining the Governing Law (Erie Problem- §1652/2072)..…………….……………………………. 41

7.   Pleading (FRCP 3, 8, 12, 15)………………………………………………….…………………………… 47

8.   Summary Judgment (FRCP 56)..……………………………………………….………………………….. 55

9.   JAML, Jury Instructions and Appeals (FRCP 47-51, 59-61)………………….………………………….. 58

10. Former Adjudication……………………………………………………………..………………………… 64
        a. Res Judicata (FRCP 52).……………………………………………….………………………… 64
        b. Collateral Estoppel…………………………………………………….…………………………. 66
        c. Collateral Attack (§1738) ......………………………………………….………………………… 69

11. Joinder (FRCP 13, 14, 18-21, 23, 24, 41) .………………………………………..……………………….. 70

12. Discovery (FRCP 26, 30-36) …………………………………………………….……………………….. 74
       a. Privileges………………………………………………………………….……………………… 77
       b. Experts…………………………………………………………………….……………………… 79
       c. Subpoenas (FRCP 45) …………………………………………………………………………….80
                    Federal Rules of Civil Procedure
I. Scope of Rules – One Form of Action                  Rule 12: Defenses and Objections—When and
Rule 1: Scope – Govern procedure in all civil actions           How Presented—By Pleadings or
Rule 2: One Form of Action – Civil Action                       Motion—Motion for Judgment on the
II. Commencement of Action                                  12a: Time to Serve a Responsive Pleading
Rule 3: Commencing of Action                                12b: How to Present Defenses
Rule 4: Summons                                             12c: Motion for Judgment on the Pleadings
    4a: Form                                                12d: Presenting matters outside the pleadings
    4b. Issuance                                            12e: Motion for More Definite Statement
    4c. Service                                             12f: Motion to Strike
    4d: Waiving Service                                     12g: Consolidation of Defenses in Motion
    4e: Servicing Individuals W/in a Judicial               12h: Waiver or Preservation of Certain Defenses
         District of the U.S.                               12i: Hearing before trial
    4h: Servicing a Corporations                        Rule 13: Counterclaim or Crossclaim
    4k: Territorial Limits of Effective Service             13a: Compulsory Counterclaims
    4m: Time Limit for Service                              13b: Permissive Counterclaims
     4n: Jurisdiction over Property/Assets:                 13c: Relief Sought in a Counterclaim
         By federal stature or Seizure of Property          13d: Counterclaim against U.S.
         when Service of Summons Not Feasible               13e: Counterclaim Maturing/Acquired after
                                                            13f: Omitted Counterclaims
III. Pleadings and Motions                                  13g: Crossclaim against Co-Party
Rule 7: Pleadings Allowed; Form of Motions                  13h: Joinder of Additional Parties
    7a: Pleadings- Complaint, Answer,                   Rule 14: Third Party Practice
    Counterclaim, Crossclaim                                14a: When D May Bring in 3rd Party
    7b: Motions and Other Papers                            14b: When P May Bring in 3rd Party
    Rule 8: General Rules of Pleading                       14c: Admiralty and Maritime Claims
    8a: Claims for Relief                               Rule 15: Amended and Supplemental Pleadings
    8b: Defenses; Forms of Denials:                         15a: Amendments Before Trial
        Effect of Failure to Deny                           15b: Amendments During/After Trial
    8c: Affirmative Defenses (19 listed)                    15c: Relation Back of Amendments
    8d: Pleading to Be Concise and Direct;                  15d: Supplemental Pleadings
        Inconsistency ok
    8e: Construction of Pleadings
Rule 9: Pleading Special Matters
                                                        IV: Parties
    9a: Capacity                                        Rule 18: Joinder of Claims
    9b: Fraud, Mistake, Condition of the Mind               18a: Joinder of Claims – may join as many
    9c: Conditions Precedent                                claims as have against opposing party
    9d: Official Document or Act                            18b: Joinder of Contingent Claims
    9e: Judgment                                        Rule 19: Required Joinder of Parties
    9f: Time and Place                                  Rule 20: Permissive Joinder of Parties
    9g: Special Damage                                  Rule 21: Misjoinder and Non-joinder of Parties
    9h: Admiralty and Maritime Claims                   Rule 23: Class Actions
Rule 10: Form of Pleadings                              Rule 24: Intervention
    10a: Caption; Names of Parties
    10b: Paragraphs; Separate Statements                V: Depositions and Discovery
    10c: Adoption by Reference; Exhibits                Rule 26: General Provisions Governing Discovery;
Rule 11: Signing of Pleadings, Motions and Other                Duty of Disclosure
         Papers; Representations to Court;                  26a: Required Disclosures; Methods to Discover
        Sanctions                                                Additional Matter
    11a: Signature                                          26b: Discovery Scope and Limits
    11b: Representations to Court                           26c: Protective Orders
    11c. Sanctions                                          26d: Timing/Sequence of Discovery

    26e/f: Supplemental Disclosure/Conference             56f: When Affidavits Are Unavailable
          Required                                        56g: Affidavits Submitted in Bad Faith
Rule 30: Depositions by Oral Examination              Rule 59: New Trials; Amendment of Judgments
Rule 31: Depositions by Written Questions                 59a: Grounds
Rule 32: Use of Depositions in Court Proceedings          59b: Time for Motion
Rule 33: Interrogatories to Parties                       59c: Time for Serving Affidavits
Rule 34: Production of Documents and things;              59d: New Trial on Initiative of Court
        Entry Upon Land                                   59e: Motion to Alter or Amend a Judgment
Rule 35: Physical and Mental Examinations of          Rule 60: Relief from Judgment or Order
Rule 36: Requests for Admission                           60a: Corrections of Clerical Mistakes
                                                          60b: Ground for Relief: Mistakes; Inadvertence;
VI: Trials                                                Excusable Neglect; Newly Discovered Evidence;
Rule 41: Dismissals of Actions                            Fraud
    41a: Voluntary Dismissals                         Rule 61: Harmless Error – not grounds for new trial
    41b: Involuntary Dismissal
Rule 45: Subpoena
    45a: Form                                         28 United States Code
    45b: Service                                      § 1251: Original Jurisdiction
    45c: Protection of Persons Subject to Subpoena    § 1253: SCOTUS can hear direct appeals from
    45d: Duties in Responding                                 decisions of three judge district courts
Rule 47: Selecting Jurors                             § 1254: SCOTUS gets certiorari; or certified
    47a: Examining of Jurors                                   questions for court of appeals
    47b: Peremptory Challenges                        § 1257: SCOTUS can review State highest court
    47c: Excusing a Juror                             § 1291: Final decisions of district courts
Rule 48: Number of Jurors – Participation in          § 1292: Interlocutory decisions
        Verdict                                       § 1331: Federal Question SMJ
Rule 49: Special / General Verdicts                   § 1332: Diversity of citizenship SMJ; amount in
    49a: Special Verdicts-jury just does facts                controversy; costs
    49b: General Verdict –Jury determines facts and   § 1337: Commerce and antitrust regulations
        law                                           § 1345: United States as plaintiff
Rule 50: JAML in Jury Trials; Alternative Motion      § 1361: Action to compel an officer of the U.S. to
        for New Trial; Conditional Rulings                    perform his duty
    50a: Judgment as a Matter of Law                  §1367: Supplemental Jurisdiction
    50b: Renewing Motion for Judgment After           §1441: Actions that are Removable
          Trial; Alternative Motion for New Trial     §1446: Procedure for Removal
    50c: Granting Renewed Motion for Judgment as      §1652: State laws as Rules of Decision
         a Matter of Law; Conditional Rulings on a    § 1653: Amendment of pleadings to show
        motion foe New Trial                                  jurisdiction
    50d: Denial of Motion for Judgment as a           §1738: Full Faith and Credit to state judicial
          Matter of Law                                       proceedings
Rule 51: Instructions to Jury / Objections
Rule 52: Findings by the Court; Judgment on           §2072: Rule of Procedure – SCOTUS has power to
        Partial Findings                                      prescribe general rules of practice/procedure
    52a: Reporting judge’s findings
    52b: Amending Findings
    52c: Judgment on Partial Findings                 US Constitution
                                                      Article I: Congress has the power to make laws
VII. Judgment                                                  which shall be necessary and proper
Rule 56: Summary Judgment                             Article III: Judicial branch/SCOTUS established,
    56a: For Claimant                                          Federal Courts Jurisdiction
    56b: For Defending Party                          Article IV: Full Faith and Credit to states judicial
    56c: Motion and Proceedings Thereon                        proceedings
    56d: Case Not Fully Adjudicated on Motion         Article VI: Constitution/Federal Law is Supreme
    56e: Affidavits; Further Testimony;               Amendment VII: Trial by Jury
         Defense Required

                                      Cases and Topics
Subject-Matter Jurisdiction
     Capron v. Van Noorden — centrality of SMJ
     Marbury v. Madison — centrality of SMJ

Diversity Jurisdiction
      Mas v. Perry — complete diversity rule, federal domicile rules
      Hertz Corp v. Friend - Corp. citizen of place of incorporation/principle place of business

Federal Question Jurisdiction
      Osborn v. Bank of the United States — but-for ingredient test (no longer valid under §1331)
      Louisville & Nashville R. Co. v. Mottley — well-pleaded complaint rule, Holmes’ cause-of-action test
      T.B. Harms v. Eliscu — rejection of Osborn/ingredient test
      Smith v. Kansas City Title — jurisdiction based on need to interpret meaning/application of federal law
      Moore v. Chesapeake & Ohio Ry. Co. — no jurisdiction, despite meaning/application
      Merrell Dow Pharmaceuticals, Inc. v. Thompson — current meaning/application test valid if fed. law
         would allow an independent lawsuit (either expressly or implied, with Cort v. Ash test)
      Cort v. Ash — 4-part test for whether the right to sue is implied in a federal law
      Bivens v. Six Unknown Agents of the FBI — implied right to sue with regard to violation of rights
      Grable v. Darue –Substantial matter of federal law + won’t open floodgates to litigation

Supplemental Jurisdiction
      UMW v. Gibbs — common nucleus of operative fact for pendant claims
      Aldinger v. Howard — presumption in favor of pendent party jurisdiction unless expressly excluded
      Owen Equipment v. Kroger — centrality of complete diversity requirement
      Finley v. United States — flips Aldinger presumption, need express grant of jurisdiction
§1367 overriding Finley, preserving Gibbs, Aldinger, Kroger line
      In Re Abbott Laboratories — supp. jurisdiction over unnamed class members because Rule 23 is not
        covered by 1367(b)
      Patterson v. Bridgestone — 1367(b) exceptions specify joinder of Ds, not Ps
      Exxon Mobile/Allapattah/Ortega – one claim must satisfy both requirements of §1332, and then all the
       other claims must be diverse in citizenship but all do not have to meet amount in controversy

Removal Jurisdiction
     Shamrock Oil & Gas Corp. v. Sheets — removal only by Ds
     Rose v Giamatti – Nominal v. formal parties
     Thermtron v. Hermansdorfer — review of remand allowed when review is not for grounds specified in
     Carnegie Mellon v. Cohill — remand of state claims allowed after federal claims drop out
     Carlsbad Technology v. HIF Bio Inc- Discretionary remand under §1367(c) reviewable

Personal Jurisdiction
     Tickle v. Barton — importance of proper service, PJ is nullified by fraud
     Pennoyer v. Neff — proper PJ is a matter of due process (territorial, or proper q-i-r)

Modern PJ and Long-Arm Statutes
     Int’l Shoe v. Washington — minimum contacts test
     Hess v. Pawloski — constructive consent for service statutes (cars driving through the state territory) valid
        under 14th Amendment
     Gray v. American Radiator — ―stream of commerce,‖ direction into the state, purposeful availment, forum-
        specific factors
     McGee v. Int’l Life Insurance Co. — single contact sufficient; systematic/continuous contacts/forum
     Hanson v. Denckla — passivity/ no purposeful availment not enough for PJ

Specific Jurisdiction
      World-wide Volkswagen Corp. v. Woodson — mere appearance of product in forum not sufficient for PJ
      Keeton v. Hustler — P’s contacts do not matter in establishing PJ
      Burger King v. Rudzewicz — single contract with substantial course of dealings may support PJ
      Asahi v. Superior Court — no purposeful availment; injection into stream of commerce not sufficient;
          traditional notions of fair play and substantial justice

General Jurisdiction
     Perkins v. Benguet Mining — acts of corp. were continuous, pervasive, and systematic; jurisdiction ok even
         though cause of action didn’t arise in state
     Helicopteros v. Hall — contacts too sporadic/occasional to establish general jurisdiction

Power Over Property
     Harris v. Balk — territorial notion of power over property — effectively overruled by Shaffer
     Shaffer v. Heitner — extends ―minimum contacts‖ test to in rem and quasi in rem actions

      Burnham v. Superior Court — acceptance of ―tag‖ jurisdiction

     Insurance Corp. of Ireland v. Compagnie — once a party challenges jurisdiction, consents to the court’s
        power to determine the question of jurisdiction
     M/S Bremen v. Zapata Off-Shore Co. — deference to forum-selection clauses (esp. in int’l context)
     Carnival Cruise Lines, Inc. v. Shute — extends deference to domestic, citing economic benefits

Service and Reach of the Federal Courts
      Omni Capital Int’l v. Rudolf Wolff & Co. — ―Omni provision‖ so foreign Ds don’t completely escape
      Stafford v, Briggs – National Contacts with USA satisfy Due Process
      Oxford First v. PNC – 5th Amendment limitation
      Insurance Co. of North America v. Hellenic Challenger — service on corp. appropriate to anyone
          reasonably certain to give responsible party notice

      Mullane v. Central Hanover Bank & Trust Co. — notice must be reasonably certain to inform; establishes
        test of the most efficient/effective way to inform
      Mennonite Board of Missions v. Adams — traditional methods acceptable, but must be best notice available
      Greene v. Lindsey — emphasis on presence of other, better means of service

     Burlington Northern R.R. Co. v. Ford — broad due-process leeway for states to develop own venue rules

Federal Venue Rules
      Hoffman v. Blaski — transferee court must be a court where case originally could have been brought
      Ferens v. John Deere Co. — transferee district must apply law of transferor, even when P transfers
         (extension of Van Dusen rule)
      Goldlawr, Inc. v. Heiman — transfer of venue may be appropriate even if original court lacks PJ

Forum Non Conveniens
     Piper Aircraft v. Reyno — forum non conveniens applied to foreign Ds, interests of convenience, judicial
        administration, etc.

Ascertaining the Governing Law
The Erie Doctrine
     Swift v. Tyson: RDA limited to state statutes; otherwise federal common law applies
     Black & White Taxicab v. Brown & Yellow — application of ―federal common law‖ over state common law
     Erie R. Co. v. Tompkins — §1652 (Rules of Decision Act) applies to state common law as well as state
         statutory law; federal courts must apply all state substantive law

Evolution of Erie
      Guaranty Trust Co. v. York — established outcome-determinative test in deciding when a state law is
         substantive (here finding that statutes of limitation are substantive state law)
      Byrd v. Blue Ridge Rural Electric — modification of York test to allow for legitimate federal policy
         interests (here the interest in jury trials) to override outcome-determinative rules
      Hanna v. Plumer (I) — refines York test, must look at totality of the rule and its forum-shopping nature
              o (II) — when a state rule conflicts with FRCP, federal rule is presumptively valid
      Walker v. Armco Steel Corp. — for FRCP to apply, must be a direct collision with state law
      Stewart Organization, Inc. v. Ricoh — collision with arguably procedural federal statute statute controls
      Klaxon Co. v. Stentor Elec. Mfg. Co — federal courts must apply choice-of-law rules of forum state (as
         federal rules would be judge-made and would promote forum-shopping)
      Shady Grove Orthopedics v. Allstate – Upholds Hanna II test

Joinder and Pleading
Joinder Generally/Federal Rules
      Temple v. Synthes — any joinder permitted under Rule 14 does not fall under Rule 19

Pleading Generally
      Dioguardi v. Durning — pleading only must state the possibility that facts could amount to legal claim for
         relief (more functional standard, especially with pro se defendants)
      Conley v. Gibson – Loose pleading standard

Complaint and Dismissal on the Pleadings
     Garcia v. Hilton Hotels Int’l, Inc. — answer notice: complaint needn’t be more than necessary for other
        party to formulate an answer
     Ashcroft v. Iqbal – Plausible (rather than possible) pleading standard

     Ingraham v. United States — 4-part test for whether something is a defense that must be pleaded
     Taylor v. United States — conflict with Ingraham (but courts typically follow Ingraham)
     Gomez v. Toledo — p must only plead statutory elements of a claim in the complaint; matters of avoidance
        must be pleaded by D

     Beeck v. Aquaslide — good-faith amendment to contest previously admitted fact, judicial discretion
     Worthington v. Wilson — unknown identity is not mistaken identity under Rule 15
     Krupski v. Costa Crociere – Relation back under FRCP 15 depends on whether party being added knew or
       should have known that but for a mistake they would have been named in lawsuit

Judgment as a Matter of Law, Jury Instructions, and Appeal
Summary Judgment
    Alderman v. Baltimore & Ohio R. Co. — no reasonable jury could conclude …
    Celotex Corp. v. Catrett — additional evidence not required for the party without the burden of production
    Anderson v. Liberty Lobby, Inc. — judges should use evidentiary standard for specific case

Voluntary and Court-Ordered Dismissal
      McCants v. Ford Motor Co. — voluntary dismissal allowed if in good faith (to take advantage of better
         statute of limitations)
      Messenger v. United States — prejudice to D not necessary in dismissing for failure to prosecute, but it
         may be considered
      Link v. Wabash R. Co. — dismissal appropriate for failure of attorney to attend pre-trial conference(s)

JNOV, Directed Verdict
     Lavender v. Kurn — scintilla standard for JNOV/DV
     Denman v. Spain — state finding when jury verdict cannot be grounded upon conjecture and possibility, a
        more liberal/permissive standard
     Daniel J. Hartwig Associates, Inc. v. Kramer — denial of p’s statements not enough to meet burden of
        production for affirmative defense
     Pennsylvania R. Co. v. Chamberlain — reasonable jury standard, no conjecture/possibility; seems to
        conflict with scintilla standard, but not overturned (came before Lavender)

New Trial Motions
     Texas Employers’ Insurance Assn. v. Price — despite evidence to support verdict, juror misconduct
         required nullifying the verdict

Jury Instructions
       Alexander v. Kramer Bros. Freight Lines — despite error in judge’s instructions, objections waived if not
          preserved at trial, given directly in response to instructions/denials

Scope of Discovery
     Marrese v. American Academy of Orthopaedic Surgeons — protective orders must take into account all
         interests, least ―offensive‖ means of discovery
     Seattle Times Co. v. Rhinehart — limiting use/publication of discovered evidence does not violate First
         Amendment interests

Work Product Rule and Privilege
     Hickman v. Taylor — work product rule protects thoughts, opinions, etc., of attorneys, but actual substance
        is still discoverable
     Upjohn Co. v. United States — attorney-client privilege in corporate environment not limited to ―control
        group‖; work product rule (Hickman) applies to administrative summonses

Treatment of Experts
      Perry v. W.S. Darley & Co. — protection of consultative (non-testifying) experts in the absence of
         exceptional circumstances

Former Adjudication
Res Judicata
      Fetter v. Beale — all claims based on same transaction/occurrence must be brought together
      Des Moines Navigation & R. Co. v. Iowa Homestead — final judgment of prior case should get RJ effect,
         despite SMJ defect
      Ticor Title Ins. Co. v. Brown — RJ effect proper despite class action certification defect
      Rush v. City of Maple Heights — cannot split property and personal injury claims for same act/t/o
      Jones v. Morris Plan Bank of Portsmouth — RJ doctrine can also be determined by the scope of a contract,
         in addition to the scope of the t/o
      Federated Dept. Stores v. Moitie — RJ appropriate despite later reversal of grounds for original
         (unappealed) dismissal; RJ is not a doctrine subject to judge-made equity

Collateral Estoppel
      Cromwell v. County of Sac — specific issues must have been actually litigated to get CE effect
      Russell v. Place — specific issues must have been necessarily decided (trouble with general jury verdicts)
      Bernhard v. Bank of America — mutuality not required for CE (state)
      Blonder-Tongue v. Univ. of Illinois — mutuality not required for defensive CE (specifically patent)
      Parklane Hosiery Co. v. Shore —mutuality not required for offensive CE, but use is discretionary
      Martin v. Wilks — no CE against parties not present in prior action; no rule for mandatory intervention
      Antrim Mining, Inc. v. Davis — can’t bind non-party to consent decree in prior action

                          Subject Matter Jurisdiction
Subject Matter Jurisdiction (SMJ) - the extent to which a court can rule over the nature of the case and the type
of relief sought; over the conduct of persons or the status of things
  o Cannot be waived by parties (Capron v. Van Noorden)
  o Objection to lack of SMJ can be raised by a party at any time
  o Amendments to jurisdiction may be made in the trial or appellate court (§1653)
  o Without SMJ, court must dismiss case (Rule 12 (h)(3))
  o 2 main types
           Federal Question Jurisdiction (§1331)
           Diversity Jurisdiction (§1332)
                  Created by Congress in the Judiciary Act of 1789

  Capron v. Van Noorden: SMJ can never be waived
       Facts: P brought suit against D for trespass on the case (negligence), realized he was not going to win
              and brought up the issue of SMJ on appeal to SCOTUS (P and D citizens of same state so no diversity)
              to get another shot at his case in a state court
       Issue: Can question of SMJ be brought on appeal?
       Holding: Case dismissed - SMJ can never be waived - If the court determines at any time that it lacks
       subject-matter jurisdiction, the court must dismiss the action
                       Codified in FRCP 12(h)(3)
                       FRCP 15 allows parties to amend pleadings (but P didn’t want to amend)
                       §1653 allows jurisdictional defects to be amended at trial or appellate level
 Marbury v. Madison: SC often wrong. Don’t accept every argument you read.
       Facts: P was appointed justice of the peace but was denied his commission by D (Secretary of State). P
       brought suit in SCOTUS seeking a mandamus forcing delivery of his commission
       Issue: Does the Supreme Court have the authority to issue a writ of mandamus?
       Holding: (Justice Marshall)
       o Marshall read a negative pregnant into the Original Jurisdiction Clause of Art. III, Sec. II (no overlap
            between areas where SCOTUS has original jurisdiction and appellate jurisdiction)
       o B/c of negative pregnant, congress not authorized to add to SCOTUS’ OJ and give SCOTUS OJ in the
            matter of mandamus in the Judiciary Act of 1789 (Wax: this is wrong - Original jurisdiction clause
            creates base of cases SCOTUS has OJ over / appellate clause gives court appellate powers in general)
                     o §1361 now gives District courts original jurisdiction over mandamus actions
                     o §1251: (a) Original and exclusive jurisdiction to SC (b) Original but not exclusive
                          (concurrent jurisdiction with district courts)
       o Created concept of Judicial Review (Judiciary has power to invalidate acts of congress if
Top state court in a state is the ultimate decider of law for that particular state
         o If no question of law has been decided in the highest court, lower court rulings can be used as
             persuasive, NOT binding; federal court rulings can be used as well, but also not binding
         o Federal courts have no power over state court rulings
         o State and federal courts above trial/district courts have precedential authority (appeals over district,
             supreme over appeals, etc)

§1254: SCOTUS can get case from federal court in two ways:
         - (1) Party petitions for writ of certiorari
         - (2) By certification from the court of appeals
§1257: Final judgments by the highest state court can to go to SCOTUS on writ of certiorari if the decision of the
state court calls into question a matter of federal law

Supreme Court Rule 10: Notification to attorneys as to how SCOTUS wants to proceed/cases they are most likely
to be interested in and likely to take:
          -   (1) Disagreement/inconsistency between lower court and SCOTUS precedent
          -   (2) Splits: Between federal circuit courts, state court and federal court, highest state courts
          -   (3) Outrage docket (Random decisions SCOTUS wants to correct)

 Diversity Jurisdiction (§1332)
 -Dated from day complaint filed
 -Burden of establishing diversity jurisdiction on party seeking federal jurisdiction

 2 requirements:
      o Diversity of citizenship
             o Complete diversity of citizenship (both sides of the v.) is required by federal law
                  Statutory grant in §1332 does not extend to full extent of powers given in the Constitution
                  Individuals – where domiciled (matter of federal law)
                            Where you are found
                            Where you intend to remain indefinitely
                            Cannot release old domicile before finding new one
                  Corporations – any state of incorporation and the state of principal place of business
                            Nerve center – where decisions are made
                            Muscle test – where most of its productive capacity is, where its labor force is
                                concentrated, where its main revenue is created, etc.
                            Total Activity test – factors in everything
      o Amount in controversy requirement – greater than $75,000 (found in §1332, but not Art. III)
             o Pre-1991 rules
                      o P can aggregate their claims against one party together to reach amount in controversy
                      o Non-aggregation regime for different Ps: each and every party has to satisfy the amount
                           in controversy requirement (rule 20 joinder and rule 23)
             o 1991 Judicial Improvements Act §1367
                      o Supplemental jurisdiction rules

Mas v. Perry:
     Facts – P’s are married graduate students living in LA. The husband is an alien citizen of
             France, and the wife is originally from MS. P was their landlord who had installed
             two-way mirrors in their bedroom / bathroom and was watching them. D argues that there
             is not complete diversity of citizenship b/c the couple is domiciled in France (wife takes
             husbands domicile).

      Holding -- There is complete diversity as neither Mas is a citizen of the State of
                 Louisiana (husband – alien; wife – citizen of MS b/c can’t be citizen of husband’s state)
        - H&W can aggregate claims for amount in controversy requirement
        - Court wants H&W to be able to bring claims together
        - W not ―covered‖ by husband’s domicile (wouldn’t be able to sue as she’s not a resident of any
            state nor a resident alien)
        - Residence is the last place you lived where you intended to remain (wife only in LA as student,
            didn’t intend to remain)

 Hertz Corp v. Friend:
 Facts – Hertz tried to remove case to federal court under diversity jurisdiction (Friend/other P’s in
         CA). Hertz had the most business in CA but administrative functions in NJ.
 Holding –
          -Old Citizenship Rule: Just looked to where corp. incorporated (corp’s could manipulate
          incorporation to choose where to go to court, defeats SMJ purpose of preventing location prejudice
          as corp. could use inc. to go to federal court in their area of most business)
          -New Rule: Corp. citizen anywhere where its incorporated and principle place of business
          -Principle place of business = nerve center, place where corporation’s business is directed/
           controlled/coordinated (normally the headquarters)
                      Easy to apply, conforms with statute’s legislative history and precise wording
                          (principle place, not principle state)
                      Simpler/easier to administer (but not perfect)

Federal Question Jurisdiction (§1331)
-Reasons for federal question jurisdiction: Concern with uniformity, expertise of federal judges, and vindicating
federal rights that are unpopular in local states

  o   How we determine if a case arises under federal law:
        If federal law provides the cause of action (COA)/COA arises under federal law
        Meaning and Application situation
              To decide a state law question court must interpret federal law issue
              State laws sometime piggyback/refer onto federal law, drawing federal law into question
        Marshall’s Ingredient/"but for" test – federal law ingredient of case (Osborn v. Bank of the United
        Supplemental jurisdiction (state claim can ride the coattails of a federal claim into federal court if it
           relates to same occurrence as the federal claim)

 o    §1331 and its siblings do not go to the full extent of the power granted to Congress by Article III

   (1) Is there an express cause of action?
        o If you get a case under state law that has issues of federal law, ask if federal law provide a right in
             itself for plaintiff to sue under a federal cause of action
        o If there is an express cause of action, you are done. Sufficient to constitute federal question/get into
             federal court.
   (2) Is there an implied right of action?
        o If there is not an express cause of action, need to use test in Cort v. Ash test to look for an embedded
             cause of action.
        o If answer is yes, then done and case can go to federal court.
   (3) Is there a substantial issue of federal law?
        o If it doesn’t then you’re not done. Must go on and apply Grable factors to see if there is a substantial
             issue of federal law.

-What is the basis of federal question assuming you have a well-pleaded complaint?
               Lots of theories of what sort of cases "arise under"
                        "arising under" appears all over the place -- Article III, 1331 and the related statutes
                            (1338, etc) does not mean the same thing in every place
               What is the interplay between the constitution and the statutes' use of "arising under"?

                            Ingredient test ("but for...") -- there are cases where the cause of action doesn't arise
                             under fed law, but federal law comes into play in other ways (e.g. in Osborn federal law
                             created the bank, so but for federal law there would be no cause of action)
                                  Constitution -- yes
                                  1331 -- no
                            Meaning & Application -- Cause of action does not arise under federal law (state law
                             case), but federal law is called into question in the deciding of the case.
                                  You can't resolve the case without determining what federal law is.
                                  Constitution – yes: Article III is broad enough to encompass cases like this.
                                  1331 -- sometimes; Harms case
                            Cause of Action – Federal law provides cause of action
                                  Constitution -- yes
                                  1331 – yes
                            Supplemental Claims
                                  Constitution – yes (is claims come from the same case)
                                  1331 - no
                            Federal Law provides defense
                                  Constitution – yes / 1331 - no
 The Ingredient Test:

Osborn v Bank of the US – establishes ingredient test -- a case can go to federal court if federal law is in
some way an ingredient of the action (even just that the action even exists)
Facts-- Bank of U.S. brought suit in federal court to enjoin the state auditor of Ohio from collecting a tax it
alleged to be unconstitutional. Bank’s charter allows it to sue and be sued in any Circuit Court of the US.
Marshall concludes that bank had power to sue in federal court, both under the power to sue given to it by
Congress and by the fact that the bank was incorporated under a federal statute
Holding – Bank itself is a legal entity created by federal law. ―But for‖ fed law, bank would not exist.
      Stands for the proposition that under Art III there is at least the opportunity for federal courts to
         take on a case where federal law is an ingredient of the case.
      If one of the parties is a federal entity, then it’s a federal question
      Ingredient test -- a case can go to federal court if an indispensable ingredient in the claim is
         federal (here because bank is a federal creation)

Louisville & Nashville R. Co. v. Mottley (US, 1908)
   – Demonstrates well-pleaded complaint rule
   – P’s complaint must assert a question arising under Constitution or US law
   – Anticipated defenses cannot create SMJ

Facts -- P’s (husband and wife) brought a suit against D railroad company (all are Kentucky citizens). Ps
were injured on D's train and released their claims of damages in consideration of having free tickets for
life. This contract was performed by D until D declined to renew the passes, based upon an act of Congress
that forbade giving free passes. P argues 1) the act of Congress does not prohibit giving free passes and 2)
if the law is to be construed as prohibiting the passes, it is in conflict with the 5th Amendment b/c it
deprives P of due process.

Holding -- The federal court does not have subject matter jurisdiction because the plaintiffs' cause of
action does not contain a question arising under the Constitution or laws of the United States (it’s a
breach of contract case – federal question would be brought up as a defense) and is thus not well-pleaded.

 The Meaning and Application Doctrine -- Statutory Interpretation:

 Key to Meaning and Application – only use this test in cases where State law provides the cause of action

T.B. Harms Co. v. Eliscu – State law cause of action (contract dispute) and failed meaning and
application test (no need to interpret/apply copyright law to decide this case).
Facts -- Dispute over copyright ownership for music dating back to the 30's. Plaintiff company alleges
that defendant, a lyric writer, entered into an agreement with him in 1933, which assigned his rights to the
existing and renewal copyrights to P in exchange for certain royalties. D contests this existence of the
agreement, and argues that he took his 1/3 of the copyright out of P's control in 1962.
Holding -- This action didn’t fulfill the meaning and application test because it didn’t require the
interpretation/application of federal law. Even though copyright act was an ingredient, statutory
requirement (necessity of applying/determining some aspect of federal law to decide the case) not met

Smith v Kansas Title and Trust Co. - Example of a claim that, although created by state law, requires the
interpretation of fed law, and thus should be in fed court under the Meaning and Application test
Facts - Shareholder sued to enjoin the Trust Co., a Missouri corp., from investing in certain federal bonds
on the ground that the Act of Congress authorizing their issuance was unconstitutional. P claims that under
Missouri Law, investment in securities with questionable legal issuance was enjoinable (state law COA).
Holding – SCOTUS: case arises under federal law b/c determining state law issue depends on the
construction or application of the Constitution (rests upon interpretation of federal law)
      In order to determine whether Missouri law was violated, must first determine as issue of federal
         law (whether this bond issuance was unconstitutional)
Moore v. Chesapeake & Ohio RY Co. - Appears to contradict the decision of Smith. Same situation but
doesn’t pass the meaning and application test.

Facts -- Kentucky Employer Liability Act provides that P cannot be held responsible for contributory
negligence if his injury resulted from D's violation of a federal statute enacted for the safety of employees.
P alleged that his injury was due to D's failure to comply with Federal Safety Appliance Act.

Holding -- Although this, like Smith, is a state claim involving a federal statute (and would require
interpreting Fed Safety Appliance Act to decide), the court found that federal jurisdiction did not exist
without diversity as this is a tort claim for negligence.

 Because of inconsistency, SCOTUS tried to clear up confusion w/ Merrell Dow.

 Embedded Cause of Action Test/Implied Right of Action Doctrine -- State case arises under federal law when it
 requires you to interpret a federal law that could itself create an independent federal cause of action.
      Only get federal jurisdiction in cases where you could have chosen to sue on federal statute itself
      3 rationales of a grant of jurisdiction are not met by this test:
              i.    Uniformity–Not met by IR doctrine because don’t get uniformity on cases that dont go to fed court
             ii.    Expertise of federal courts – Don’t apply federal expertise, when a chunk of the federal law
                    questions do to the state courts
            iii.    Protection of federal rights – Depends on the underlying law (even if you don’t sue on the federal
                    law, the court still interprets it which may affect future action)

Merrell Dow Pharmaceuticals, Inc. v. Thompson - Meaning and Application + Implied Remedy test

Facts – P’s (Canadian & Scottish), sue Merrell Dow (Ohio) alleging the their children were born deformed due to
the mothers' ingestion of Bendictin. One of their many claims argues that Bendictin was misbranded under the
FDCA b/c its labeling did not provide adequate warning of the dangers of the drug. Under the FDCA this amounts
to negligence per se.

Holding -- A complaint alleging a violation of a federal statute as an element of a state cause of action, when
Congress has determined there should be no private, federal cause of action for the violation, does not state a
valid claim under §1331. If Congress didn’t intend private individuals to be able to sue under the statute, then it
certainly didn’t intend for the statute to be heard in federal court.

Brennan Dissent: This doesn’t further purposes of fed jurisdiction. Majority’s reasoning could mean that
Congress never intended any state cause of action to be heard in fed court.

 Four factor test for Implied Right of Action Doctrine (from Cort v Ash):
      1. Is plaintiff one of a class for whose special benefit the statute was enacted?
                       No. Statute was enacted to prevent campaign corruption (and benefit everyone) not to protect
      2. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one?
                   Look at the overall goal of the statute - Would a remedy advance the goal?
                   No. Private cause of action wouldn’t deter past corruption
      3. Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the
                   Is there anything else in the legislative scheme (an alternative enforcement scheme) that covers
                   No. There is an alternative enforcement mechanism (administrative remedy through Federal
                      Election Commission).
      4. Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a
           cause of action based solely on federal law?
                   Shareholder remedies are ordinarily a state law issue / Corporations are creatures of state law

Cort v Ash (U.S., 1975) – creates the Four Part Test used for Implied Right of Action Doctrine

Facts -- Stockholder (P) sue the corporate directors for violation of statute which prohibits presidential
campaign contributions by corporations. P sues for injunctive relief and damages. P alleged jurisdiction
under 1331 claiming a private cause of action under 610.
Holding -- A federal cause of action is not suggested by the legislative context of 610 or required to
accomplish Congress' purposes in enacting the statute.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics – example of implied right of action
doctrine in constitutional context

Facts -- P alleges that the defendants violated his Fourth Amendment rights by performing search and seizure
without a warrant.

Brennan’s Holding -- P's complaint states a federal cause of action under the Fourth Amendment for
which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that
Black’s Dissent: Congress did not include a federal cause of action for constitutional violations by federal
officials but created one for state officials (§1983). Strong inference (negative pregnant) that Congress did not
want to permit such suits against federal officials. Legislating should be left to Congress.

 An Alternative To Merrell Dow – The Grable Test
     Does a state-law claim necessarily raise a stated federal issue
     Is the issue actually disputed
              o Grable: The whole case turns on interpretation of the statute.
     Is the federal question substantial
              o Grable: The whole tax structure depends on this
     Is the question one that a federal forum may entertain without disturbing any congressionally approved
         balance of federal and state judicial responsibilities (floodgates problem)
              o Yes. Not going to be a lot of quiet title actions that require interpretation of federal tax law (unlike
                  MD negligence case, where negligence suits are very common).

Grable v Darue (US, 2005)
   – Sets a new criteria for SMJ aside from Merrell Dow – if federal question involves a ―substantial
        question‖ vital to fed gov’t and will not ―open the floodgates‖
   – Classic meaning and application test: Quiet title is state cause of action but requires intepretation
        of I.R.S. notice statutes.

Facts -- In 1994, IRS seized Grable (P)'s property and subsequently resold it to Darue (D). Five years later,
P brought a quiet title action in state court arguing that D's title was invalid b/c the IRS had failed to notify
P of seizure in the exact manner required by 6335(a) (P said the statute required personal service, and he
was notified by mail).
Holding -- Given the absence of threatening structural consequences and the clear interest of the
government, its buyers, and its delinquents have in the availability of a federal forum, there is no good
reason to not allow federal jurisdiction over the contested federal issue at the heart of this state law claim.

 Supplemental Jurisdiction and §1367
 Supplemental Jurisdiction – Jurisdiction over claims brought by existing or new parties which have no
 independent SMJ when looked at separately but can get carried in with a claim that does have SMJ
              Prior to §1367, different terminology
                      pendent claims -- claims between the same parties
                      ancillary claim -- claims added that brought in new parties in some way

 Purpose of Supplemental Jurisdiction:
              (1) Providing a federal forum:
                     Want to keep fed court open to claims arising under fed question (if P has state and fed
                         claims may be forced to go to state court is fed court refuses supplemental state claims)
              (2) Efficiency: Avoiding piecemeal litigation
              (3) Preserving a consonance with res judicata doctrine
                     If parties pursue fed claims in fed court and not state claims, state claims might be


 1. Pendent Claim Jurisdiction

United Mine Workers of America v Gibbs– (U.S. 1966)
           o Fed Question: 1 P and 1 D; multiple claims
           o Develops common nucleus of operative fact test. Discretionary test.

Facts: Labor strike and union dispute kept Gibbs from fulfilling contracts. Gibbs filed two claims, one
federal (Labor Management Relations Act) and two state (Tennessee laws of strikes).

Reasoning: Previous Test (Hurn) -- Separate causes of action can’t come in, have to be separate grounds
related to the same cause of action

Holding: SMJ can be granted in cases where federal and state cause of action have common nucleus of
operative fact (usually the same transaction/occurrence)
     Whether claims all come in or are split is at judge’s discretion
     Authority comes from Article III – if issues come from same case or controversy and there’s
         something federal in it, it all ―arises under‖ federal law

 Gibbs discretionary factors:
          o (1) Has fed claim been dismissed or settled prior to trial of state issues (so only state issues are left)?
                    In Gibbs, fed claim was dismissed post-verdict. Not good reason to send away state claims.
          o (2) Do state issues predominate?
                    As initially framed/structured, fed issue in Gibbs was essential part of case
                    Judge can use discretion to decide if fed claim was just way to get into fed court
          o (3) How tightly related are state and federal claims?
          o (4) Will jury be confused?

 2. Pendent Party Jurisdiction

Aldinger v Howard (U.S., 1976)
    – Federal Question. 1 P suing 1 D with fed claim and 1 D with state claim under same T&O
    – Unless Congress affirmatively excludes pendant-party jurisdiction, then there is jurisdiction
    – §1343 excluded suing against counties so congress affirmatively excluded jurisdiction in this case,
         but this implies that pendant party claims are allowed under §1331.
P brought suit against several officers of Spokane County Washington for alleged violation of Civil Rights
Act (§1983). P sought to join the county itself, but under construction of the federal statute at the time,
counties were not considered subject to it. Therefore, P had to sue county under state law, but argued that
pendent jurisdiction should apply, as the two claims met Gibbs' "common nucleus of operative fact".
Because Congressional statute precludes federal jurisdiction over the county in this claim, cannot include
county in the federal claim using pendent jurisdiction.

Owen Equipment & Erection Co v. Kroger
   – No diversity jurisdiction where diverse defendant impleads a non-diverse defendant.
   – No pendent jurisdiction if inclusion would destroy complete diversity required by §1332.

P (Iowa) sued Omaha Public Power District (OPPD) (Nebraska) for negligent death of her husband. OPPD
brought in Owen. P amended her complaint to name Owen as a D, who she alleged was also a Nebraska
corporation. OPPD granted summary judgment, leaving just Owen. During the trial, court learned that
Owen from Iowa. As a result, Owen moved to dismiss the case based on lack of SMJ.

Holding: Court will never allow supplemental jurisdiction where there is not complete diversity.
Bottom Line:
        o Complete diversity of citizenship requirement will not be eroded.
        o Not going to license strategic evasion.
                 Don’t want P to bring in a diverse D who will bring in another party who is not
                 Court is saying we know if you sue them both under rule 20 from day 1 they are out,
                     don’t want to allow you to do it after day 1 and have it be in.
        o Don’t care about timing of joinder, all we care about is final picture
                 Multiple routes to same lawsuit under joinder rules. Final picture of lawsuit is the
                     same in either case. Want to treat them jurisdictionally the same.

Finley v United States (US Supreme Court, 1989)
 - Federal Question. 1 P suing multiple Ds over same T&O.
 - The court reads Aldinger VERY narrowly, saying if statute does not expressly state you can add pendent
     jurisdiction, then you can't.
 - Plain Statement Rule: If congress wanted a particular result (like fed cause of action, jurisdiction in
     certain cases), they have to specifically say so. Not court’s job to say whether or not result should be
 - Congress responds by enacting §1367.
P's husband/children were killed when their plane struck power lines on its approach to city-run airfield. P
sued FAA under Federal Tort Claim Act (FTCA has its own jurisdictional grant over civil actions on claims
against the US) and the City of San Diego under state law.
Reasoning: FTCA 1346(b) confers jurisdiction over "civil actions on claims against the US"
               SCOTUS reads as against the US and no one else
               Says will read Congressional statutes literally to avoid confusion
Scalia’s Holding: Reverses the presumption in Aldinger:
 - Aldinger: Unless Congress affirmatively excludes supplemental jurisdiction to the statute’s claim, we
     allow supplemental jurisdiction
 - Finley: Unless congress affirmatively allows supplemental jurisdiction, we don’t allow it. Presumption
     of no supp jurisdiction in the face of silence/ambiguity. Supp jur must be authorized not only by Art. III
     but by statute.
 - Scalia is advancing his idea of what the balance of power should be between congress and judiciary

 Supplemental Jurisdiction After §1367

 1. §1367 Overview
       Intended to preserve Gibbs, Kroger, Zahn and to overturn Finley
              1367(a) -- What gets in the front door? (Broad)
                      Any civil action in which the district courts have original jurisdiction (diversity or federal
                          question), there will be supplemental jurisdiction over all claims that are so-related that
                          they constitute the same case and controversy
                      Includes both pendant-claim and pendant-party
              1367(b) -- What gets kicked out the back door? – Only applies to §1332 cases (diversity)
                      Exclusions based on claims that add new parties, not new claims against parties already
                      No supplemental jurisdiction over (if they would be inconsistent with the requirements of
                          §1332 – i.e. mess up diversity or amount on controversy):
                               P’s claims against persons made parties under Rule 14, 19, 20, or 24
                               Claims by a person is joined as a plaintiff under 19 or 24
                      What is not excluded?
                               (1) Any supplemental claim joined under federal question
                               (2) Claims joined under Rule 23
                               (3) Claims by Ps joined under Rule 20
                                         This is the hole in (b). No language at all against plaintiffs joined
                                             under rule 20 even if they don’t meet requirements of §1332. Suspends
                                             diversity rule for some cases.
                               (5) By Ps against other Ps
              1367(c) -- Discretion of court (from Gibbs)
                      In spite of supplemental jurisdiction under §1367 a/b, court may split off state claims if
                               Novel/complex issue of state law
                               State law predominates
                               District court has dismissed all claims over which it has original jurisdiction
                               Other exceptional circumstances

                          Components that don’t meet supplemental jurisdiction can be shed under FRCP 21
                  1367(d) -- Tolling provision: stops the clock on statute of limitations

 2. Aggregation Under §1367
 -Pre-1367: All claims between same parties could be aggregated (didn’t matter if claims related or unrelated)
 -Post-1367: Post-1367: Have to find a claim that meets the ―civil action‖ requirement under §1367 (a) then related
 claims can come in but unrelated claims can’t come in as are from a different case or controversy
            i. Primary claim satisfies amount, pendent claim does not, same T&O - IN
            ii. Primary claim satisfies amount, pendent claim does not, NOT same T&O - NOT IN (need to be from
                  the same T&O)
            iii. Neither claim satisfies amount (aggregate does), same T&O – NOT IN (need a valid primary claim
                  before any supplemental claims can be added)

 3. Scope of §1367

In re Abbott Laboratories
 - Class Action. Original claim (representatives) met diversity requirements but claims of unnamed
     class members did not.
 - Only class representatives need meet amount in controversy/diversity of citizenship in order to meet
     diversity requirement.
Anti-trust action involving the fixing of infant formula prices. Class representatives met diversity/ amount-
in-controversy requirement, some of the non-representative parties joined by FRCP 23 didn’t.
Supplemental jurisdiction is allowed despite lack of amount-in-controversy requirement on unnamed
claimants because 1367(b) does not mention Rule 23. Zahn is overruled.
 - Zahn: Every class member in a class action that arises under a state law claim must meet the amount
     in controversy requirement
 - Ben-Hur: Only need minimum diversity for class actions
 - This was a 4-4 decision. O’Conner abstained. No precedential value but lower courts abide by it.

Patterson Enterprises, Inc. v Bridgestone/Firestone, Inc.
     – Court gets the right answer for the wrong reasons. Judge relies on timing factor to say that parties
          that come in together from beginning are not excluded under §1367(b)’s list of joinder rules.
     – Real answer is that §1367(b) has a loophole for P’s joined under Rule 20.
Facts and Procedural History
Three P’s, Patterson Enterprises, Patterson Farms Trucking, and Jere J. Patterson, sue defendant tire
company for negligence, strict liability and breach of warranty, as a Firestone tire allegedly failed on one of
the tractor trailers causing an accident. All are citizenship diverse but Enterprises and Trucking don’t meet
$50,000 amount in controversy requirement.
Reasoning: WRONG
Court focuses on timing: 1367(b) only applies to parties added under Rules 14, 19, 20 and 24. Doesn’t
apply to parties that come in together initially under those rules.
      Right reasoning = loophole for P’s added under Rule 20 in §1367
As all the claims arise from the same incident and are controlled by the same legal issues and thus meet the
common nucleus of operative fact test (Gibbs), and rule 1367(b) does not exclude this type of case, these
claims satisfy Rule 1367 and are properly within supplemental jurisdiction of the court.

4. §1367 – The Current State of Affairs
Three Theories For §1367 and Rule 20:
      Claim by Claim Theory -- Abbott Labs/Solicitor General (WAX’S APPROACH)
         Pick out one claim that meets diversity and amount-in-controversy requirement
              If you can find that, any connected claim can come along under (a)
              Then, when we get to (b), we will kick out anything but exceptions (P’s under rule 23/20, etc).
              Unambiguous and clear
         Weakness:
              It overrules Clark and Kroger
                                  Clark: All parties must meet amount in controversy
                                  Kroger: All parties must meet diversity in citizenship
                   Given that Congress said we want to preserve Kroger and Zahn, that is problematic
              Treats Rule 20 more leniently than Rule 19
       Contamination Theory -- Kennedy/Allapattah and Ortega
             In regards to multiple parties, one claim must satisfy both requirements, and all the other claims must
             be diverse in citizenship (non-diverse parties contaminate the claim) but all do not have to meet
             amount in controversy
         Reasoning: Two conditions read into §1332 have divergent purposes. Complete diversity is intimately
             tied to the original purpose of 1332 as protection for the D, whereas the amount in controversy
             requirement is merely imposed to lessen the federal docket by eliminating small claims
         Weakness:
              Arguably creates a redundancy in 1367(b) -- why kick out non-diverse parties in b if you've
                  already kicked them out in (a)?
              (Biggest) seems to assume what the statute says
                   Front-loads the decision of what comes in and what doesn't (all seems to be decided by a),
                       which is contrary to whole purpose of the statute
      Indivisibility Theory -- Ginsburg dissent
         If any party lacks the amount-in-controversy or is not diverse in citizenship, then the action does not
             have original jurisdiction -- stopped at the door by §1367 (a)
         Reasoning: Interpreting text to not change historical rules
         Weakness:
              Why exclude cases in (b) if (a) doesn't even let them it? What work does (b) do at all?
                   Ginsburg's answer -- if party gets in then tries to add other parties later, (b) makes clear that
                       requirements can’t be circumvented through timing

Exxon Mobil Corp v Allapattah Services, Inc (and Ortega v Star-Kist Foods, Inc.)
   – Diversity Jurisdiction, Multiple P’s. All P’s are diverse but not all meet amount in controversy
   – In multiple party actions: one claim must satisfy both requirements of §1332, and all the other
       claims must be diverse in citizenship but all do not have to meet amount in controversy
   – Kennedy drives a wedge between diversity of citizenship and amount in controversy requirement.
       (non-diverse P’s contaminate lawsuit…no original jurisdiction).
   – Kennedy is trying to close the Rule 20 loophole… closes it halfway (for diversity of citizenship)

Facts and Procedural History
Allapattah --10,000 Exxon dealers are filing suit against Exxon Corp for an intentional and systematic
scheme of overcharging for fuel. Some of the claims do not meet the amount-in-controversy requirement of
§1332 and others do. A Rule 23 case just like Abbott Labs.
Ortega - A girl and her family sue for damages for her injury from a tuna can. Girl's claim meets amount-
in-controversy requirement. Her family's claim does not. A Rule 20 case just like Patterson.

Kennedy Holding
Where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies
the amount-in-controversy requirement, §1367a does authorize supplemental jurisdiction over the claims of
other plaintiffs in the same case or controversy even if those claims do not meet the amount-in-controversy
amount – diversity of citizenship still required
      Drives wedge between citizenship and amount-in-controversy requirements
      §1367b does not exclude P’s joined under FRCP 20/23

Ginsburg Dissent: To decide whether there is original jurisdiction under §1367a, all parties must meet
amount in controversy requirement and diversity of citizenship requirement (Indivisibility Theory).

 What is strange about the decision?
     Leaves unclear what the rule 23 application is: Kennedy never gets to whether there will be a complete
          diversity requirement for class actions
                         Note: This does not apply to Class Actions as there is now a $5 million total amount in
                            controversy requirement and minimum diversity requirement in §1332(d)
     Invites strategic behavior
              o Treats rule 19/24 joinder more strictly than rule 20. Way parties are joined makes a difference as
                   to whether there is jurisdiction or not, even if the end picture is the same. Invites strategic
              o Violates the Kroger principle - snapshot of the action at the end of the day is all that should count

 Removal (§1441)
              Allows D to second guess P's choice of forum (a way to protect D from foreign court prejudice)
              §1441(a): Removal is designed so that if P chooses state court D can remove to federal
                         An exception to the P is master of complaint rule
                         Removal subject to well-pleaded complaint rule: Must plead federal action or there must
                             be diversity between the parties
                              District court must have original jurisdiction over the matter
              §1441(b): Exception: In a diversity case, if D is a citizen of the state in which the complaint was filed,
               can’t remove case to federal court.
                              Courts take the position that one defendant defeats removal
                                  Third party defendants only defeat removal if one or more of the plaintiffs have
                                      a claim against them (so they basically become a defendant)
              §1441(c): When there are separate and independent state and federal law claims, the entire case can
               be removed or matters in which state law predominates can be remanded
                     If entire package of complaint could have been filed in federal court in the first instance, then
                         it can be removed to federal court
                     American Fire holding (independent means not related to the same T&O) either makes
                        1441(c) null (situation wouldn’t occur) or unconstitutional (unrelated claims could be attached

Shamrock Oil & Gas Corp. v Sheets – P cannot remove a state action to federal court simply because D
filed a federal counterclaim
Reasoning -- Statute allowing removal only mentions defendants
                Have to assume that Congress did this knowingly

Rose v Giamatti – Develops the concept of ―nominal‖ and ―formal‖ parties.

Facts – Rose filed suit in Ohio state court on the grounds he was being denied his right to a fair trial b/c D
(Giamatti, Major League Baseball, and the Reds) was biased. Giamatti removed to federal court, and Rose
argued that MLB and the Reds destroyed complete diversity.
Reasoning – nominal vs. formal parties; diversity of citizenship should only be considered for "real"
defendants. This is a dispute between Giamatti and Rose, and MLB and the Reds are nominal at best.
Holding -- Since diversity of citizenship exists between Rose and Giamatti, and MLB and the Reds are
nominal at best, removal is allowed.

 Removal Procedure (§1446 and §1447)
        Procedure for Removal (§1446)
                Parties have 30 days after service of process or receipt of complaint to file for removal to
                    federal court (implies waiver)
                After removal, must promptly notify all the other parties and the state court
        Procedure after Removal (§1447)
                §1447(c): Remand
                     Can remand for lack of SMJ or defects in procedural requirements for removal
                     30 days to move to remand or otherwise you waive it (unless there the motion to remand
                         is b/c court has no SMJ -- not waiveable)
                §1447(d): Reviewability
                     No reviewability of orders to remand, but says nothing about reviewability of denial of
                         remand -- an asymmetry
                               Exception: Civil rights cases (§1443)
                §1447(e): After removal, court has discretion to deny or permit joinder where it would
                    destroy jurisdiction. Completely discretionary.

Thermtron v. Hermansdorfer:
 - Remand orders for reasons not authorized by statute (§1447c) are reviewable.
District court judge remanded a properly removed case simply because his docket was full
Court allowed review of remand, held that §1447 (c) and (d) must be read together
      Review appropriate when remand was on a ground not specified in the statute (non-reviewability
          only applies for authorized reasons)
      Such decisions are not reviewable because of error, only reviewable because the decision is clearly
          beyond judge’s authority
Quackenbuch/Powerex: Court reiterated that only remands for grounds specified in the statute (§1447c)
are non-reviewable. If not authorized in statute, it’s reviewable.

Carnegie-Mellon Univ. v Cohill– For reasons of efficiency and fairness, court has discretion to remand
removed cases back to state courts if all federal claims are removed and only state claims remain

P brought claims against D for wrongful termination and violation of federal age discrimination laws.
Later, P moved to amend complaint to take out federal claim and filed a motion to remand b/c the
amendment would eliminate their sole federal-law claim.
D’s Argument: Can’t remand because remand not authorized by statute, so must dismiss (variation of
Court has inherent authority to remand. A remand is preferable -- promotes values of economy,
convenience, fairness and comity -- less costly; more efficient.
District court has discretion to remand to state court a removed case involving pendent claims upon a
proper determination that retaining jurisdiction would be inappropriate. This is now covered by §1367(c).
 - Why is a remand order being reviewed (since §1447(d)) says it cannot be? Parties filed mandamus to
     SC to review and the SC ignored §1447(d) in order to address the issue.
 - §1367(c) is codification of the court’s power to remand state law claims.
 - §1441(c) doesn’t apply because American Fire & Casualty said ―independent and separate claim‖ in
     §1441 (c) means claims don’t have same T&O (but here claims had to have same T&O since they
     were based supplemental jurisdiction)
 White’s Dissent: No statutory basis for this holding / Courts have historically had inherent power to
 dismiss suits but not to remand

  Carlsbad Technology v. HIF Bio Inc – post §1367

  Facts: P filed state and federal patent claims against D. D removed to federal court. D then filed MTD P’s single
  federal claim. District court remanded the case to state court.
  Holding: Remand for a reason not specified under §1447 but authorized under 1367(c) (district court may
  decline to exercise supplemental jurisdiction over state claims when federal claim is dismissed) and common law
  (courts have discretionary right to remand state claims) = reviewable
     Remand was based on discretion (reviewable), not lack of SMJ (not reviewable) – case had SMJ when filed
     Expands exceptions to Thermtron
  Concurrences: Should either get rid of Thermtron or Congress should amend §1447, courts are all over the place
            o Scalia – look what we did – we misread the statute – we should over-rule Thermatron
            o Breyer – maybe congress will fix this for us/amend §1447
            o Stevens – I don’t care how irrational it is, it’s stare decisis

                                  Personal Jurisdiction
2 elements to the assertion of personal jurisdiction:
      Power over the person
             o Abstract power of the sovereign to bring parties in and bind them
      Perfection of the power
             o Proper service

Tickle v. Barton
         Facts: P’s lawyer calls D and invites him to a banquet for D’s son’s football team. P does not identify
                himself and gets D to come into the state for the banquet. When D arrives, P serves D with
         Holding: Fraud, trickery and deceit nullify service of process and thus PJ
         Given Dissent: No fraud. Lawyer just took advantage of existing circumstances. Only issue is the he
         didn’t identify himself.

Modern law: Shift from formal to functional
        o Formal concept:
                   Looks up to power of sovereign.
                   Generally grounded in physical element of person (where they live, where they are
                   Territorial borders define limits
        o Functional concept:
                   Looks down to burden/inconvenience/fairness to parties
                   Relational contact between defendant and forum (minimum contacts)
                   Particularly suited to commercial/corporate structures
                   Extends beyond state territorial borders

2 elements to the assertion of personal jurisdiction – PJ is claim-dependant
        o Proper service
                 Needed to perfect the power over the person
        o Power over the person
                 Valid long-arm statute (Court authorized to exercise PJ under circumstances of the case)
                 Long-arm statute must be constitutional (due process) as applied to the party

Three categories of Personal Jurisdiction
            i.    In Personam - Jurisdiction that establishes full power over the person, relating to any dispute in
                  which the person might be involved
           ii.    In Rem - Jurisdiction that is based on the sovereign court's power over the person's property
                          Suit about the property and amount of recovery limited to the value of the property
                          Person does not have to be present in the jurisdiction for suit to proceed
                          Seizure and notice (posting, which was relaxed to publication - in newspaper or
                           something similar)
          iii.    Quasi in Rem – D’s property within the jurisdiction attached/seized to initiate an action against
                  the D; but the case does not have to be related to the property
                          Property a way to get the lawsuit ball rolling
                          Judgment is against the person, but traditionally, the amount of recovery is limited to the
                           value of the property within the jurisdiction

-Proceedings for IP/IR different
     IP: Personal service in the state
     IR: Initiate action by seizure of property (or posting sign to property) and notice

 Pennoyer v Neff (U.S., 1877)
      – Begins the move from rigid formalism of the old rules to the more functional modern view. Brings
            in the big questions: Due Process, rights of D, balance of power and mechanics
      – Quasi in Rem action for legal fees. P is out-of-state but property in-state
 1. Mitchell v Neff -- Neff (D) owns property in Oregon. Mitchell (P) sued him for owed legal fees. Because
      D was in a different state and could not be located, P sought, quasi in rem, seizure and auction of D's
      property. The court granted.
 2. Neff v Pennoyer -- Mitchell subsequently won the property at auction and sold it to Pennoyer. Neff seeks
      title back (collateral attack), originally arguing that the property was illegally seized by the court
 In order to get PJ over an out-of-state defendant in a (quasi) in rem action there must be seizure of the
 property before the commencement of the action, to give proper notice to the out-of-state defendant
 (otherwise, you are violating the 14th amendment rights of the owner of the property).
 Notes: This is the major turning point for PJ requirements. Court affirms traditional territorial limits of PJ
 and traditional procedures (seizure) to establish PJ. Also looks forward and states that formality/traditional
 procedures to give notice need to be preserved in order to prevent violation of due process right

 Gradual Shift to Functional Approach:
 In the years after Pennoyer (late 1800s) and before International Shoe (1940s), cracks started to show up as courts
 moved from formalistic to functional. Two cases illustrate this.
  - Blackner v. U.S. (1932): SCOTUS allowed state to personally serve process on an individual who was a citizen
       of the state but was temporarily living elsewhere.
            o Broke with idea that service of citizen had to be done within territorial limits of forum state.
  - Millikan v. Meyer: SCOTUS allowed service on a resident domiciled in the state but living abroad indefinitely
            o Relationship: Court said relationship of individual to forum is sufficiently strong and of the right type
            o Fairness: Not fundamentally unfair to do it.

Hess v Pawloski (U.S., 1927)
     – SCOTUS says long-arm statutes are constitutional
     – State creates a long-arm statute which stipulates that automobile drivers who use the state’s road
         imply consent to the state’s jurisdiction on any incident arising while driving in the state.
Nonresident driver (P in error) negligently operated an automobile in MA and injured D in error. A statute in
MA states that any nonresident driver on MA highways implicitly consents to be served for any proceeding
against him growing out of any automobile accident or collision
The MA enactment is valid because it is in the public interest to allow states to regulate their highways and
service of process against nonresidents who have accidents on MA roads and the statutes doesn’t discriminate
against non-residents
          o Court validated constitutionality of long-arm statutes for automobiles/interstates through:
                    (1) Implied Consent: If D comes into jurisdiction and receives benefit of being
                       protected by its laws, then power of sovereign is satisfied.
                             By coming into the state in the first place with a dangerous automobile, you
                                 are consenting to be amenable to suits in the forum.
                    (2) Constructive Presence: By using interstate you have appointed the registrar of
                       motor vehicles as your in state agent who can accept summons for you as if you were
                       in the state.
          o Court says this is all ok because they think it’s fair.

 Minimum Contacts Test
    Minimum Contacts Test -- To have PJ, party must have minimum contacts with forum state such that calling
    them to trial there comports with traditional notions of fair play and substantial justice
         Corporations and Presence:
              Operations in a state must be continuous and systematic
              If a corporation enjoys the benefits and protection of the laws of the state, then it has obligations
                   to the state

International Shoe Co. v Washington
     – International Shoe: Response to inadequacies of traditional formal law in addressing corporations/
          the nationalization of commerce
     – Develops the minimum contacts test, which states that party must have minimum contacts with
          forum state such that calling them to trial there comports with traditional notions of fair play and
          substantial justice
State of Washington (P) wanted to tax International Shoe (D) for unpaid employment insurance, but D argued
that since it only had salesmen in the state and conducted no business there, the state had no PJ

-Minimum Contacts Test: Party must have minimal contact with the forum state so that calling them into
court does not conflict with traditional notions of fair-play and substantial justice.
-Undue Burden: Cannot place undue burden on defendants
            Very fact intensive: More contacts a company has with a state the less burdensome it would be
                for them to defend a lawsuit there
-Reciprocal Obligation: If company has purposeful availed themselves of the benefits/protections of the
state, it’s not unfair to ask them to defend a lawsuit in the state

 Minimum Contacts: 4 Categories
        o (1) Systemic and continuous contacts
                Cause of action arises out of those contacts in the forum
                PJ in most cases. Specific Jurisdiction.
        o (2) Systematic and continuous contacts
                Cause of action does not arise in state
                PJ in most cases. General Jurisdiction.
        o (3) Less than continuous contacts but one or two substantial contacts
                Case-by-case. Jurisdiction depends on the facts
        o (4) Sporadic and unsubstantial contacts
                Never PJ

 International Shoe led to the enactment of many long-arm statutes. Defendant’s challenge long arm statutes by
 arguing that statute does not apply to my situation OR if it does, it is unconstitutional

 Stream of Commerce/Purposeful Availment Test
     Stream of commerce -- If a corporation elects to sell its products for ultimate use in another State, it is not
     unjust to hold it answerable in that state for any damage caused by defects in those products
     Purposeful availment – If D's conduct and connection with the state of forum are such that he should
     reasonably anticipate being hauled into court there

Gray v American Radiator & Standard Sanitary Corp (IL, 1961)
     – Sets out concepts of stream of commerce (corporation puts its goods into the stream of commerce
          in a state) and purposeful availment (the corporation enjoys the benefits and protection of state
          laws, and thus should be obligated to be sued under those laws)
P injured by a radiator and sued Titan Valve Manufacturing Co., an OH corp that manufactured the safety
valve which was incorporated into radiator eventually sold in IL. P brought suit based on IL long-arm
statute allowing claims to be made against nonresidents who commit a tortious act in the state (explosion
occurred in IL which court says counts as Titan committing a tort in IL).
As Titan places its products into the ―stream of commerce,‖ it is foreseeable that valves will end up in IL
and that it can be called to account in IL. In a stream of commerce case, a single or sporadic episode(s)
could be enough to ground PJ if its specific jurisdiction. Titan also benefits from radiators that use its
valves being sold in IL (so Titan benefits from IL laws).
Note: In addition to analyzing the minimum contacts standard, the court goes on to analyze the forum
related factors:
                   Appropriateness of the forum (witnesses/evidence etc)
                   State has an interest in providing a forum for this sort of occurrence

 Single Contact Cases
     Affiliating circumstances – must show a ―reaching-out‖ to forum state in a variety of ways
     Passivity – if D has only passive connections with forum state (no reaching out or purposeful availment), no PJ

McGee v International Life Insurance (U.S., 1957)
-Affirmation of courts’ ability to reach out to corporations doing business in the state
-One contract is sufficient for minimum contact, as long as there are affiliating circumstances that show a
―reaching out‖ of out-of-state party to the forum state.

Facts -- P, CA resident, seeks to receive insurance money from D, her deceased husband's TX-based
Insurance company. D did no business in CA / P's decedent was their only customer in CA, but P seeks
recovery based on a CA statute protecting in-state customers of out-of-state insurers. P got judgment in CA
but when she went to TX to enforce, TX court refused.
Holding - Exercise of jurisdiction by California court was proper.
 - On the contract side, it is possible for a single contract to satisfy the International Shoe standard if that
     contract is substantial enough (course of dealings / payments made over a long period of time)
 -    Single contact ok if there were continuous dealings with the forum and the company reached out to
     maintain the dealings
 - Court focuses on forum state factors: CA’s interest in adjudication (P’s CA citizens)

Hanson v Denckla (U.S., 1958)
   – Court pulls back from McGee to say that where contacts/course of dealing are passive, no PJ

Facts -- Donner, resident of PA, established a trust in DE, naming a DE bank as trustee. Later, she moved
to FL, executed her will which left her estate to two of her daughters. She then changed the appointed
beneficiaries of a significant portion of the trust to be two of her grandchildren (the children of her third
daughter), with the remnant going to the estate. After her death, the two daughters named in the will
brought suit in FL claiming that the appointment of the grandchildren as beneficiaries of the trust was
ineffective. D argued suit could not go forward because FL court had no jurisdiction over the DE trustee.

Holding – FL court cannot exert jurisdiction. Trustee’s contact with FL was based on single client who
moved there so trustee’s relationship with FL was passive, he did not purposefully reach out to the forum
nor avail himself of FL as a forum.
Reasoning -- International Shoe is limited to cases where the out-of-state party has SOME contact with
State that invokes the benefits and protection of the state’s laws

 Specific and General Jurisdiction
 Specific jurisdiction -- A defendant may have sufficient contact with the forum to warrant asserting jurisdiction
 over it for matters relating to its activity in the forum w/o having sufficient contact with the forum to warrant general
       Cause of action arises out of contacts with the forum
 General jurisdiction -- A defendant may have sufficient contact with the forum to warrant asserting jurisdiction
 over it for all matters
       Cause of action that does not arise out of contacts with the forum

 Reasons you might want general jurisdiction over specific jurisdiction
     o Choice of law (statute of limitations)
     o P’s location/convenience for P
     o Length of long-arm statute
     o Substantiality of contacts
     o State’s interest in adjudication:
              Jury/court related factors
              Evidence/witnesses
     o Defeating removal - place where D is a citizen so removal cannot occur

 Specific Jurisdiction

World-Wide Volkswagen Corp. v Woodson (U.S., 1980)
     – Stream of Commerce refinement
     – If the corporation does not ―reach out‖ to the forum state and purposely avail itself to its laws (was
          passive), then there is no PJ. Mere appearance of product is not enough.
A couple bought an Audi from a NY-based car dealer. While driving through OK en route to their new
home in AZ, they were rear-ended which caused a fire which severely burned the wife and two children.
Must be minimum contacts: Merely injecting something in the stream of commerce without more (no sale
in the forum) the type of unilateral action that will not alone predicate PJ
      Reasonableness -- must make sense to bring the corporation to the state
      Foreseeability – Foreseeability is not enough if it is from the unilateral action of the P. D's
          conduct and connection with the forum state must be such that he should reasonably anticipate
          being brought into court there -- nothing of the sort here
      Affiliating Circumstances: Insufficient contacts/availment of state’s benefits
Because D had no "contacts, ties, or relations" with OK, Due Process Clause prevents them from being
sued in OK state court.
Notes: Court doesn’t take on Gray. They distinguish on the basis that here point of final sale wasn’t in
forum state. No reason why this should be dispositive.
Brennan Dissent: Court arbitrary distinguishes from Gray and ignores forum state interests that favor suit
in OK. Foreseeability is sufficient. There shouldn’t be distinction between good that reach a state via
chain of distribution and goods that it reach it by being used in the way the dealer knew it would be used

Keeton v Hustler Magazine, Inc. (U.S. 1984)
     – Stream of commerce case
     – P’s contacts with forum state do not matter. All that matters is that D has sufficient minimum
Facts: P, a resident of NY, sued D, an OH Corporation, in federal court in NH because that was the only
state where the action was not barred by statute of limitations. She argued jurisdiction based on the fact that
D sold thousands of magazines in NH each month
Holding: D's contact with state was sufficient. Minimum contacts is not determined by P's contacts, but
D's contacts

Burger King Corp v Rudzewicz
      – Contracts case. Analogous to McGee.
      – Because D purposefully availed himself to an out-of-state corporation through a contract,
           corporation’s state forum has jurisdiction
D (MI-based) franchisees of P (FL based) corporation defaulted on payments so D sued in FL federal court
for breach of obligations. D argues that, because the action did not arise within FL and they are not FL
residents, they did not have minimum contacts with the forum.
Brennan’s Holding:
(1) This contract involved a continuous course of dealing over time (20 year franchise agreement with
payments sent to Miami)
(2) D, while a little guy, is in business so should have reasonable expectations as to where he will be called
to litigate
(3) Contract says corporation is based in FL/ FL law applies to any disputes
-Forum-state factors cancel each other out. This is a purposeful availment case.
-Decision does NOT allow for consumers to be dragged into court by corporations because of continuous
course of dealing. Mere purchases alone are not sufficient to ground PJ.
Stevens Dissent: Disparity of bargaining power/ D thought could solve all issues with its local MI branch
and not have need to deal with FL branch

Asahi Metal Industry Co. v Superior Court (U.S., 1987)
    – Stream of Commerce. Court takes on Gray.
    – Court will not adopt Gray’s stream of commerce test. Not enough for final point of sale to be in
         state. Need affiliating circumstances/activity in the state in order to get PJ.
The original P was in a motorcycle accident that resulted from a defective tire manufactured by Cheng Shin
Rubber Industrial Co., the Taiwanese manufacturer of the inner tube. He filed suit against Cheng using
CA’s long-arm statute. Cheng cross-claimed seeking indemnification from its codefendants, Asahi Metal
Industry Co, a Japanese manufacturer of tire tube valve assemblies. The original P's claims against Cheng
and other Ds were settled, and all that remained was Cheng's indemnification action against Asahi.
O’Connor Plurality: (Considered last word by courts)
Stream of commerce not enough to satisfy Due Process, must consider actions purposefully directed
towards forum state and find an effort to reach out to the market. Because there are neither sufficient
minimum contacts and forum related factors tilt away from CA asserting jurisdiction (no CA parties left in
lawsuit/international law is likely to apply) the case should not remain in CA courts.
Brennan Opinion: Stream of Commerce consistent with Due Process, there are minimum contacts.
Stevens Opinion: No need for purposeful direction test. And even if that test is applied, Asahi has enough
products in CA to meet the requirement of ―more than stream of commerce‖

 Affiliating Circumstances -- Due Process Clause requires the action of D to be more purposefully directed at the
 forum than the mere act of placing the product in the stream of commerce that may sweep product into forum state
           Need ―substantial connection:‖ Must try to sell, advertise, have offices or agents, distribution network,
              something to establish connection with state
     Forum-Specific Factors – must be reasonable exercise of jurisdiction – ease of gathering witnesses, interest of
     forum state in the outcome, applicable law

 General Jurisdiction
         D may be sued in state for any claim, even one completely unrelated to its in-state activities
         When D’s activities in the state are so substantial and continuous that he would expect to be subject to suit
          there on any claim and would suffer no inconvenience from defending there

Perkins v Benguet Consolidated Mining Co. – if D’s business in the state is continuous, pervasive and
systematic, then it would not violate the Due Process clause for the state to assert personal jurisdiction,
even if the case/cause of action did not arise in the state.

P, a non-resident of OH, brought suit against D, a Philippine corporation, in OH state court on two causes
of action arising from activities conducted by D outside of OH (failure to issue dividends). During WWII
and after, b/c mines in Philippines were occupied by the Japanese, D president came home to OH and
conducted company business there.
-D's president in OH carried on continuous, systematic, and pervasive supervision of the activities of the
company, and thus it would not violate Due Process for OH to either take or decline jurisdiction.
-Stands for idea that:
           o General jurisdiction is viable (COA doesn’t have to arise in forum)
           o Need a lot more contacts to show general jurisdiction than specific

Heliocopteros Nacionales De Colombia, SA v Hall – General jurisdiction requires substantial contacts.
Need more than specific jurisdiction but vague as to how much more.

Hall’s (P) decedents were killed in a helicopter crash in Peru. Sued Heliocopteros, a Colombian
corporation (D) for wrongful death in TX. D has had limited contact with TX (one visit by its CEO,
purchasing helicopters, supplies and spare parts from another TX company, sending its pilots for training in
TX and cashing a check in TX).
Blackmun Holding
D's contacts with Texas were insufficient to satisfy Due Process clause for general jurisdiction because they
were mere purchases and purchase-related trips and not continuous or systematic

Brennan Dissent:
-Purposeful availment -- D actively and purposefully engaged in numerous and frequent transactions in
Texas, it is reasonable and fair to subject them to suit in the forum
-Related to/ Gives Rise to COA distinction
         While the interactions did not "give rise" to the CoA, CoA is related to forum -- contracts were
             made in Texas; pilots were trained (if pilot-training negligence were part of pleading, the court
             would have no problem here). Arguably this could be a specific jurisdiction case.

 Other Basis for Personal Jurisdiction
 Property - After Pennoyer, in rem and quasi in rem jurisdiction has made a similar move from formal to
 functional test – extended beyond fixed property to chattels (ie stock/debt)

Harris v Balk -Quasi In Rem action. Illustration of the pressure that led to transition from formal to
Facts: Harris owed Balk $180, both were citizens of NC. Balk owed Epstein, a citizen of MD, $344. When
Harris was visiting Baltimore, Epstein attached the debt owed to Balk by Harris (Harris’ debt to Balk
belongs to Balk, is Balk’s property, but was in the forum as debt travels with the debtor). Epstein used
attachment to start a quasi in rem action against Balk as the property seized (debt Harris owes to Balk) is
unrelated to the underlying subject of the suit (Balk’s debt to Epstein). Harris consented to entry of
judgment against him and paid the $180. A few days later, Balk commenced an action against Harris in
NC. Harris said he already paid in MD.
Holding: SCOTUS: Debt follows debtor when he leaves the state where the debt occurred and the
obligation to pay can be enforced by any court.
Problem: Issue of the wandering chattel / defendant has zero control over where the debtor is

Shaffer v Heitner: **good law**
     – Adopts the Int’l Shoe minimum contacts standard for in rem and quasi in rem cases
     – Overrules Harris
     – Quasi in Rem and In Rem actions still exist, but in order to get valid jurisdiction under these
          devices, there must be minimum contacts.
P, a non-resident of DE is the owner of one share of stock in Greyhound Corp, a business incorporated
under the laws of DE and headquartered in AZ. P filed a shareholder's derivative suit in Chancery Court in
DE in which he named Greyhound and its officer/directors. The activities that led to the suit occurred in
OR. DE had law that allowed seizure of stock considered to be in DE to commence lawsuits.
Marshall Holding:
SCOTUS: All forms of PJ (in personam and in rem) will be held to International Shoe minimum contacts
with forum standard. Says owning stock not sufficient contact with DE, so minimum contacts test fails.
      Minimum contacts will almost always be satisfied by simply owning real property
-Issue: Defendants are Officers of a DE corporation so are taking advantage of DE law. Marshall says he
doesn’t need to address as the statute being examined about owning stock in DE not about being an officer
of a DE corporation
      Confusing statutory requirements (whether Ds owned stock) with Constitutional requirements
          (whether Ds have minimum contacts with DE)
 - DE did not allow limited appearances (if appeared held to in personam damages). If you can be held
      to in personam standards for damages then you should get in personam safeguards for PJ.
 - Marshall says DE could enact statute saying it has PJ over officers of DE corporations, but this is
      stupid because minimum contacts would still not be met- it would be unconstitutional.

 Limited Appearances: Trend is going back towards allowing limited appearances b/c people with property have
 more power.
     Special appearance to contest PJ jurisdiction, limited appearance (IR/QIR) limits damages to property value
 Might want to file IR/QIR action:
 - (1) To get around short long-arm statute
 - (2) When D can’t be found, or
 - (3) The property is D’s only liquid asset.

         Tag Jurisdiction -- if you are physically present in a jurisdiction, you can be served in the jurisdiction
          (survives International Shoe)

Burnham v Superior Court

Facts: NJ resident P and his wife split, she moved with the children to CA. Later that year, P was visiting
San Francisco on business/visited his children and was served with a CA divorce summons. P said his
presence in CA didn’t meet minimum contacts standard
Scalia Plurality Opinion:
-Tag jurisdiction co-exists alongside Int Shoe minimum contacts (which is meant for out of state Ds/corps)
-Presence is the traditional form of service (history/pedigree establishes law) and if anything satisfies due
process traditional notions of fair play/justice, presence does
      14th Amendment was enacted against a backdrop where physical presence was due process by
-Shaffer v. Heitner said all forms of jurisdiction must pass minimum contacts test (tradition not enough to
keep old rules). Scalia glosses over this, saying doesn’t apply to IP (only applies to IR/QIR)
Concurrence (Brennan)
Shaffer means International Shoe test applies everywhere. By visiting the state (even for 3 days), P
establishes minimum contacts as he avails himself of the benefits/protections of CA laws; that is why in-
state service is valid, not tradition

 Personal Jurisdiction may always be asserted over parties who consent – it is a right that may be waived
 i. Consent by ―fiat‖/constructive consent
        By coming here, you’ve consented to our jurisdiction
        e.g. auto statutes implying consent
 ii. Consent by appearance
        General Appearance: Waiver of challenge to PJ
               o For IR/QIR cases, depending on state, if you waive PJ and lose, the judgment is limited to value of
                   the property, but in some states judgment can be for more than value of property
        Default:
               o If default, can later collaterally attack the judgment on lack of PJ grounds
                         (i.e. by not coming and adjudicating, do not waive the right to attack PJ)
                         If you lose collateral attack, you lost your chance to adjudicate on the merits.
        Special Appearance
               o Many states allow D’s to come in to specifically contest PJ
               o If contest PJ and lose, cannot later collaterally attack PJ since matter was already adjudicated
 iii. Consent by contract
        forum-selection clauses
        not automatically enforced — depends on what state’s law applies to cause of action

Insurance Corp. of Ireland v Compagnie Des Bauxites

Facts and Procedure
In an insurance collection action, foreign insurance companies contested PJ in PA District Court and failed
to comply with district court's order for production of evidence in order to determine whether PJ was
warranted. Court imposed a sanction consisting of a presumptive finding that the insurers were subject to
the jurisdiction of the court.
-By submitting to jurisdiction of the court to challenge PJ, D agreed to abide by court's determination on
the issue of jurisdiction and to comply with court's requests to aid in such determination.
-If you make a special appearance you are bound to do whatever the court asks to determine PJ. If you
don’t produce requested evidence court is justified in assuming you waived PJ
M/S Bremen v Zapata Off-Shore Co.
      Parties can contract to submit their disputes to the jurisdiction of a specific court (even a foreign
          court) and, if valid, that contract will be honored
Facts and Procedure
P, a German towing company, contracted with D, American corporation to tow a drilling rig from LA to
Italy. After an accident, D tried to bring suit in FL. The contract contained clause that all disputes were to
be adjudicated before "The London Court of Justice." SCOTUS upheld clause. – Admiralty case
In admiralty law, forum selection clauses shall be enforced for sake of American international trade /
international comity

Carnival Cruise Lines, Inc v Shute -- Zapata is not limited to contracts between two businesses

Facts and Procedure
D went on one of P's cruises, the ticket contained a forum selection clause saying disputes to be brought in
FL. D slipped and fell on deck, and brought suit in WA.

Holding – SCOTUS held forum selection clause enforceable
Cruise-line benefits from knowing it has to abide by FL laws/being able to litigate at home/not having to
litigate all over the world. Lower costs from this certainty/lower litigation costs gets passed to customers in
the form of lower ticket prices

FRCP Rule 4:
Rule 4(a): Contents of a summons
Rule 4(b): Issuance of the summons
Rule 4(c): General Service Requirements
         o Summons + a copy of the complaint can be served by anyone over 18 years or older.
         o May be by U.S. Marshall
         o Attorney may serve summons, party to lawsuit cannot
Rule 4(d): Waiver of service
        o If defendant consents to be served by mail, he gets a reward (more time to answer)
        o If you don't consent to more relaxed service by mail, you have to pay the expenses of summons
Rule 4(e): Service can be made in any judicial district of the US (no geographic limitations)
        o Can serve pursuant to state law, or
        o Personal service, leave a copy at the individual’s dwelling, or deliver to an agent
Rule 4(h): Service on Corporations
        o Serve an agent of the corporation, either designated by state law or someone who functions as an agent
                Federal law of agency - highly pragmatic / functional (not formal)
                      As long as it is reasonable to believe that person will bring summons to attention of the
                          people who will answer, that person can be an authority/agent = valid service
                      Lack of formalism meant to prevent corporation from hiding single person who can
                          receive summons

Insurance Co. of North America v. S/S ―Hellenic Challenger‖ – 4(h) allows summons to be made upon a
representative so integrated with the organization that he will know what to do with the summons papers

Facts: Summons was accepted by an unauthorized employee of D and subsequently lost. Authorized employee
was sick at the time of summons, so the unauthorized insurance adjuster accepted it
Holding: 4(h) is to be interpreted liberally. Service of process is not limited to officially designated officers; as
long as service is made upon an individual who ―stands in such a position as to render it fair, reasonable and just
to imply the authority on his part to receive services‖ then service is sufficient

Rule 4(n): In-rem / Quasi-in-Rem actions
In many states can choose between in personam and IR/QIR, can’t do this with feds
              In federal courts, IR/QIR actions only allowed:
                      o (1) When authorized by federal statute
                               Allows for a special enactment by Congress to assert power over property
                      o (2) When PJ cannot be obtained over D (it’s a last resort)
              If you cannot obtain PJ then you can use IR/QIR (last resort principal)
                      o Happens if there’s a short long arm statute or cannot find the person
              For in rem jurisdiction must seize property in the district where you’re litigating
              Must include minimum contacts standard as of Shaffer

Rule 4(m): Time limit for service: 120 days after complaint filed

Rule 4(k): Territorial Limits of Service - When PJ can be asserted in federal court
        Rule 4(k)(1)(A): Piggyback Provision
             Federal court has PJ if a state court of general jurisdiction in that state would have PJ
                      Federal courts piggyback on states’ long-arm statutes
        Rule 4(k)(1)(B): Bulge Provision
             PJ over parties joined under FRCP 14 and 19 if served within 100 miles of where summons issued
             Allows parties to reach across state lines
             2 interpretations:
                      Need Minimum Contacts (very narrow interpretation of rule):
                               Bulge provision can only be used to bring you into court if you couldn't be
                                   brought in under the state's long arm statute but you still have to have minimum
                                   contacts with the forum

                                 Limits use to states with short long-arm statutes
                           Don’t Need Minimum Contacts (Wax likes):
                                 Bulge provision does not require that you have minimum contacts with the state
                                 Bulge provision has 100 mile radius, so at most only have to travel 100 miles,
                                     which comports with minimum contacts spirit of not having to litigate far from
          Rule 4(k)(1)(c): If authorized by federal statute
                     Ex: Statute that allows for nationwide service of process in antitrust
          Rule 4(k)(2): Omni Provision
              In federal actions, when there’s no state that would have PJ over defendant, P can sue D in any
                  state they want as long as D has sufficient minimum contacts with the USA as a whole
                  (Constitutionally minimum contacts with the country as a whole is what matters)
               Must be:
                         (a) No state has jurisdiction over D
                         (b) D has consistent contacts with the US as a whole or is found somewhere in the US to
                            make it sufficient under the US Constitution to exercise jurisdiction
               Usually only applies to non-citizens/offshore companies

Omni Capital International v Rudolf Wolff & Co. -- Rule 4(k)(2) was promulgated in response to this --
gives US federal courts jurisdiction over foreign defendants doing business in the US who cannot be
reached through state long-arm statutes.

Facts and Procedure
Investor brought action against Omni, a NY corporation, in LA federal court under the Commodity
Exchange Act. Omni impleaded Wolff, a British corp., who were not present in LA and could not be
reached by state's long-arm statute (which was short). Wolff moved to dismiss for lack of PJ. District,
Appellate, and Supreme Courts found jurisdiction was unattainable.
Without legislation, the federal courts cannot exert jurisdiction not provided by state long-arm statutes.

Stafford v Briggs – Dissent expresses approval of a theory of "national contacts" under the Due Process
clause of 5th Amendment.
-For Due Process, in state court 14th amendment applies, in federal court 5th amendment applies
-Anyone present within the geographical reach of the sovereign that creates the court can be called to
defend in that sovereign’s court

Oxford First Corp v PNC Liquidating Corp -- Federal courts should still be limited by "fairness"
derived from due process clause of the 5th Amendment.
-If it is oppressive to ignore minimum contacts in some cases, how does it suddenly not just because
defendant is being sued in federal court instead of state court?
-Must determine if there is an undue burden on D - need to do case-by-case analysis and examine the
burden on the defendant to determine if nationwide service complies with due process.

 Adequacy of Notice
         Best Notice Practicable Standard: Notice must be reasonably calculated in the circumstances to apprise
          all interested parties of the action
                o It’s a balancing test of the costs and benefits
                o With process, due process provides that parties receive notice + an opportunity to be heard
         In-person service of process (notice) is the standard against which all other means/manners of notice are

Mullane v Central Hanover Bank & Trust Co. (U.S, 1950)
– establishes a case-by-case functional test for notice (best notice practicable standard)
A common trust (made up of small pooled trusts and allowed by NY statute) hired D bank to conduct a
binding audit, which would have the effect of settling all questions respecting the management of the
common fund and take away all rights of the beneficiaries against the trust company. Notice was published
in a local newspaper. P and other beneficiaries argued that this notice was inadequate to afford due
Jackson Holding - The statutory published notice is inadequate under due process because it is not
reasonably calculated to reach those who could have been easily informed by other means at hand
-Same standard applies to in rem and in personam cases: 14 th Amendment the standard for testing process
      Notice must be reasonably calculated based on circumstances to inform those affected
-When burden to give notice by mail/in person is not possible, publication is ok

 Categories of Persons to be Served:
                   Unknown: (Speculative/Lost)
                            Publication ok
                   Known and unknown address:
                            Due diligence to find their address, if can’t find notice is ok
                   Known and known address:
                            Don’t have to serve personally, mail is ok
                            Publication not good enough under this set of facts, but might be good enough under
                               other set of facts.
                                   o Court doesn’t want to endanger standard that seizing assets/publication is
                                         enough for in rem actions

Mennonite Board of Missions v. Adams - Casts doubt on traditional seizure

Reasoning -- Notice by publication and posting did not provide mortgagee with adequate notice of a
proceeding to sell the mortgaged property for nonpayment of taxes (in rem)
               Undermined the adequacy of seizure for notification
               Elevates mail over seizure/posting as more likely to get notice to defendant
Greene v Lindsey
 - Notice of tenant eviction posted on door of public housing apt was not sufficient, as summons
      sometimes got torn down before it reached the tenant in question.
Brennan Majority: P’s should have mailed the summons. Mail > seizure/posting for notice
O’Connor Dissent: This is not a standard if it can only be applied in hindsight based on facts. Not clear a
priori what type of service will pass muster. How do we know they’ll get the mail either?

  Jones v. Flowers - There are circumstances where mailing is not sufficient. Sometime regular mail is
  better than certified

  Facts: Certified letter sent and returned (plaintiff did nothing to try to re-serve the defendant)
  Holding: If registered/certified mail notice comes back to Gov’t, it’s clear the person didn’t get it and the
  gov’t needs to do something more (ie send it via regular mail b/c doesn’t require D to be home to receive)

  Bottom line: Parties seeking to notify short of in-hand service are in a bit of a quandary as to what will
  suffice. Basically a case-by-case judgment call.

        Third Hoop: Further restricts where P may choose to bring suit (places the action within a district), after the
         PJ and SMJ questions have been answered.
        Often a question of convenience, practicality, desire of parties and appropriateness of the forum
             o Broad deference to state venue rules in federal courts
        Venue can be waived if not challenged by D and is often ―contracted around‖ through ―forum selection
         clauses‖ – though, courts vary on whether those will be respected

a.   1391 - Venue generally – limited by the backstop of PJ - ONLY in:
      (1) If all D’s reside in the same state, in the judicial district where any D resides
      (2) A judicial district in which a substantial part of the events giving rise to the claim occurred or where a
         substantial part of property that is the subject of the action is situated. or
      (3) If no district where action can otherwise be brought, in a judicial district in which any D is subject to PJ
         at the time the action is commenced
          (3) is a ―fall-back‖ provision ONLY; applied only in cases where (1) and (2) are not possible
          Interpretations of ―no other district in which the action can be brought‖
                    o Must be no other district in which venue would be appropriate (very restrictive reading)
                    o Wax's interpretation: Even though there is venue under one of the other conditions, if you
                         can't also get SMJ or PJ there, then by definition its not a place where an action can be
                         brought and you can go to the third condition for venue
b.   A civil action where jurisdiction is NOT founded on diversity may be brought (except otherwise provided by
     law) ONLY in
      (1) If all D’s reside in the same state, in the judicial district where any D resides
      (2) A judicial district in which a substantial part of the events giving rise to the claim occurred or where a
         substantial part of property that is the subject of the action is situated. or
         (3) If no district where action can otherwise be brought, a judicial district in which any D may be found
          may be found -- some courts apply (a)(3), others apply tag jurisdiction
c.   Residence of corporation – Any district where corporation subject to PJ.
      If state has more than 1 district, corporation resides in district where it has minimum contacts with the
         district (as if the district was a state)
              o If no such district, corporation resides in district within which it has the most significant contacts
d.   An alien may be sued in any district

-1404 and 1406 are about the transfer between federal courts
        o Fed court cannot tell a state court to take a case
        o Fed courts do not have the power to transfer cases to foreign courts

§1404 -- Change of Venue
o District court may transfer any civil action to any other district where it might have been brought
     Both transferor and transferee courts must satisfy venue, SMJ, and PJ
     Only applies if venue in initial district of filing is proper but convenience and/or justice call for a transfer

§1406 -- Cure or waiver of defects
 If action filed in district where there’s no venue, it can be dismissed or transferred to a place where it could have
         been brought (new forum law applies)
 Parties waive if they don't make timely and sufficient objection to venue
 Transfer allowed so P doesn’t lose action if statute of limitations has run

  Burlington Northern RR v. Ford

  Facts: D challenged MT’s venue rule for violating Equal Protection Clause (MT corporations can only be
  sued in their county of principle place of business, corporations incorporated elsewhere can be sued in any
  Holding: Venue is a sub-constitutional doctrine (D’s have no constitutional right to venue in a particular
       Proper venue based on legislative choice (tons of judicial discretion)

Hoffman v Blaski
    – Venue must be proper in transferor and transferee courts; and the venue rules apply at the
       time the case was brought (must have been able to bring case in the original instance)

Facts: Blaski (P), resident of IL, brought this patent infringement action in the Northern District of TX
against Howell and the corporation controlled by him (D), residents of TX. D moves to transfer to IL court
under §1404. Action couldn’t have been filed initially in IL because D didn’t have minimum contacts with
IL at time of filing, but now D willing to waive PJ/venue.

Holding: D can’t waive PJ/venue in order to move case, this would tip balance of power towards D (no
consent needed by P for D to transfer, but if P wants to transfer needs D’s consent)
     Because this is not an action that could have been properly brought to IL by P, D cannot move for
Frankfurter Dissent:
          o (1) Courts concern that D will use §1404 as a sword to oppress P instead of a shield to
              protect himself is misplaced. Statute says ―in the interest of justice,‖ not in the interest of
              justice to oppress P so court can deny transfer if P would be oppressed
                    Court is a check on abuse
          o (2) Court interpreted §1404 out of step of Forum Non Conveniens (§1404 supposed to be a
              codification of Forum Non Conveniens)
                    D is allowed to waive PJ to get case transferred

Van Dusen v Barrack - In diversity cases, the law applicable in the transferor forum follows the transfer
Facts: P filed in PA, D filed to move to MA where statute of limitations had run
Reasoning -- A move to transfer should just be a change of court rooms and not a change of law
               Prevents forum shopping
               Limited to state law claims—Courts divided on whether in federal law case new forum or
                   forum precedent applies
Ferens v John Deere Co.
§1404 transfer can be requested by P or D - Rule that was supposed to prevent forum-shopping now allows

Facts -- P, a PA resident, was injured by one of D's harvesters (DE corporation). P missed PA’s two-year
statute of limitations for bringing tort actions. P brought an action in PA for non-time barred contract claim
and a tort claim in MI (six-year SOL)
Procedure -- The federal court in MI granted P's motion for transfer under §1404. The PA court refused to
apply MI tort law and dismissed the tort claims. The Court of Appeals affirmed. SCOTUS reversed.

Kennedy Holding- In a diversity suit, the transferee forum is required to apply the law of the
transferor court, regardless of who initiates the transfer

  Goldlawr, Inc. v Heiman -- §1406 authorizes transfer even if transferor court lacks both venue and PJ

  Facts: Case brought in PA, improper venue and no PJ. SCOTUS authorized transfer.
  Reasoning -- In §1406, Congress recognized that the interest of justice may require that the complaint
  not be dismissed but transferred in order that P not be penalized (by statute of limitations) for a mistake.

  Dissent -- Decision makes no sense -- why should case w/ no venue and no PJ be transferred while cases
  with venue but no PJ are dismissed under Rule 12?

Options under §1406: Transfer or Dismissal
- Transfer to federal forum with PJ and venue
- Dismiss for refiling in state court
- Dismiss for refiling in foreign court
         o If Judge thinks foreign court can get PJ over D
         o This is not FNC because FNC only applies where there is proper venue in the transferor court.

Statute of limitations with transfers
 - (1) If filed in time for both transferor and transferee, then no problems.
          o Good. No problems.
 - (2) If filed in time for transferee but not for transferor
          o Most courts allow it - What really matters is how things look in the end
 - (3) If filed in time for transferor but out of time for transferee
          o Courts are split. Majority rule says transfer is ok.
                     Selective Van Dusen rule
                               Even under §1406 transfer, parties can take law of transferor forum with them, with
                                  respect to statute of limitations.

 Forum Non Conveniens (FNC)
 Definition and Key Provisions
 A court may decline to exercise valid jurisdiction if it is too inconvenient for the D or the court to litigate the case in
 the forum
          1. Only exercised on D’s motion
          2. Alternative forum is a foreign country
          3. Allows for dismissal, not transfer
          4. Venue and personal jurisdiction are not necessary in the transferee forum (D can waive)
          5. Presupposes that action was properly before initial court

 Forum Non Conveniens Balancing Test (Piper)
     1. P relevant factors
           i.   Substantive Law/ Remedies
                     1. Safety valve is when new court doesn’t have ANY remedy, not just an unfavorable
                     2. In §1404 this drops out because law follows the case. In FNC, no Van Dusen rule. Law
                         doesn’t follow the case.
          ii.   Connections with forums
         iii.   Location of evidence/witnesses
     2. D relevant factors
           i.   Ease of Adjudication
          ii.   Relative connection with forums
         iii.   Evidence/Witnesses
     3. Forum Interests factors
           i.   Law (which country’s court will be applying the law/is it familiar with that law)
          ii.   Local ties to the litigation
         iii.   Ties with alternative forum

 * This test has become the test for §1404 transfers too (deciding how two locations stack up when venue/PJ are both
 * Judge uses this test in §1406 cases when comparing two transfer locations or deciding whether to dismiss when
 judge there is a place where venue would be proper but is trying to determine whether case should be dismissed
 because too burdensome on D.

Piper Aircraft Co. v Reyno
     – FNC is proper, even if law in alternative forum is less favorable, when issues of complexity of
          choice-of-law analysis, potential trouble with regard to application of foreign law, location of
          witnesses and evidence, danger of influx of foreign litigation, etc. point towards the foreign forum
     – Introduction of 3 Factor Test
A small aircraft manufactured by Piper (D) was involved in a crash over Scotland. All passengers were
Scottish or British, and it is unclear whether the crash was due to mechanical failure or pilot error. P files
case in CA district court, transferred to PA court. D’s moved for FNC.
-SCOTUS: FNC three part inquiry looks to P’s interest to stay, D’s interest in moving, and comparative
interests of the forums. Balance of factors favors Scotland.
-Because an alternative forum exists in Scotland, the case involves foreign Ps, there are strong connections
to Scotland and Scotland has an interest in trying the case, the outcome will be more efficient if both cases
are tired together, and the public interest is best served by trying the case in Scotland, the case should be
dismissed based on the doctrine of forum non conveniens.

                     Ascertaining the Governing Law
                                               The Erie Doctrine
 Statutory Underpinnings of Erie
 Does federal or state law apply in diversity actions?
 1. Rules of Decision Act (§1652) -- "The laws of the several states, except where the Constitution or treaties of
      the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions
      in the courts of the US, in cases where they apply"
       State law applies unless there is a specific constitutional or statutory provision that controls
 2. Rules Enabling Act (§2072)
 a. The Supreme Court has power to prescribe general rules of practice and procedure and rules of evidence for
      cases in US District courts and courts of appeal
 b. Rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of
      no further force or effect after such rules have taken effect
       Distinction between substantive and procedural, but this distinction is often unclear/fuzzy

 Historical Development

Swift v Tyson – RDA (§1652) is limited to state statutes; if no statute, fed common law applies

Maine land speculators fraudulently sold land that they did not own to New Yorkers (D included). D
refused to pay. NY state law said fraud invalidates notes. Federal common law said fraud doesn’t
invalidate notes if note goes to 3rd party without knowledge of fraud.
Story Holding
SCOTUS looks at §1652 (then Rules of Decision Act) – RDA does not stand in the way of judges looking
to judge-made common law as ―laws of the several states‖ in RDA means statutes, not common law
      Law interpreted/found, not made

 Problems from Swift
      Created two different legal regimes governing the same issues - Encouraged forum shopping between state
         and federal court
      Convergence: Idea that state courts would reform laws to follow federal courts example didn’t happen

Black & White Taxi v. Brown & Yellow Taxi
    – Shows how federal common laws encouraged forum shopping/strategic behavior
B&Y, a KY corporation, had monopoly taxi contract with the Louisville and Nashville RR Co., a KY
corporation. B&W, with the tacit approval of the RR, solicited business and parked in B&Y spaces. In
order to sue in federal court and avoid a restrictive KY statute on monopolies, B&Y reincorporated in TN,
signed a new contract with RR, and then sued diversity grounds to get more favorable federal monopoly

Under Swift, federal common law applies, and thus monopolistic contract is enforceable. B&W violated
B&Y's rights under its contract with RR and thus should be enjoined.

Holmes Dissent:
Swift is built on a fallacy -- there is no such thing as a body of federal common law
     Federalism -- violates federal principles (state/federal power distinction)
     Separation of powers -- legislature in the branch of gov't that makes law; court has no such power

 Rival conceptions of Law:
 - Legal Idealist View/Anti-Positivist View: (Justice Story)
          o Law an ideal conception. Open to all legal actors to reason through to the ideal best answer.
          o Story also had other reasons for the holding:
                    Legal Pragmatist View:
                            Important for law to evolve to accommodate modern conditions/ be progressive
                    Federal Court Snobbery
                            Fed courts better at making common law rules
 - Positive View: (Justice Holmes)
          o Need the authority of the state to back up the law.
          o Rules of Decision Act- Congress said state law governs
          o Swift rule unconstitutional:
                    Principle of federalism (trenching on state powers)
                    Separation of powers (congress should make law)

Erie R. Co. v Tomkins
     – There is no federal common law so Swift represents an unconstitutional invasion of state courts
         power by the federal courts
     – Federal courts MUST apply the substantive state law in diversity cases.
     – Overrules Swift which had not created uniform law/ has led to forum shopping
Walking along a footpath parallel to the train tracks, P was struck by something protruding from a passing
train. Under PA common law, P would be considered a "trespasser" only owed duty to avoid wanton
negligence. Federal common law imposed duty of ordinary care.
Brandeis Holding:
State law applies:
      There is no such thing as federal common law and the assumption of such by the federal courts is
         an unconstitutional invasion of power over the state courts
      Congress makes federal laws, not federal courts
      Swift doctrine misreads the Rules of Decisions Act and is therefore overturned

 Evolution of Erie
 Historical Context:
 - Rule of Decision Act doesn’t distinguish between procedural and substantive law
 - Under Rules Enabling Act: FRCP were created then ratified by Congress
 - After Erie, some courts tried to preserve federal courts authority to make procedural rules
        o (1) Art. III gives federal courts authority to make procedural law
                     Constitution is an exception to State law’s authority.
        o (2) In RDA, phrase ―the rules of the decisions of the states‖ only covers substantive law, doesn’t apply to
            procedural rules

  -   Four sources of procedural rules:
               Judge-made rules (Article III)
               Federal Rules of Civil Procedure (as encompassed in the Rules Enabling Act)
               Congressional statute
               Constitution

 Outcome Determinative Test (from York) --Will the application of federal law lead to a substantially different
 result than if state law was applied?
         Two parts:
                1. Will existence of different state and federal rule lead to forum-shopping?
                2. Will ignoring state law lead to inequitable distribution of justice (different results in state/ federal
                      A move from formal to functional

Guaranty Trust Co. v York
     – Introduces outcome determinative test
     – Statute of Limitations is considered substantive law
York (P) brought at a diversity suit against a financially failing Trust Co. (D) alleging it had breached its
fiduciary duties. Because the complaint involved allegations of fraud and misrepresentation, it was
governed by equitable principles, and traditionally, in equity, federal courts can prescribe the statute of
-When it comes to pure diversity of citizenship case, federal court adopts the law of the States (including
equity). If the State statute of limitations bars hearing in State court, it is so barred in federal court too.
-Court doesn’t look at procedural/substantive formal distinction, considers if rule is outcome determinative
(will it lead to a different outcome between state/federal court if we allow federal court to have its own

Notes: Court concerned with forum shopping and inequitable administration of justice.

 -Outcome determinative: Substantive laws will almost always be different so choose state law, only with
 procedural issues that federal procedural rule may not have a major effect so can be used over state rule

Byrd v Blue Ridge Rural Electric Cooperative, Inc.
     – York’s outcome determinative test may be overruled if the court feels there is an important federal
          policies at stake; but presumption remains in favor of state rule
P, a resident of NC was injured doing contracted power line work for D, a SC corporation. P brings
negligence suit in federal court basing jurisdiction on diversity of citizenship. Compensation depends on
whether P is an independent contractor or employee. Under SC state law, judge would decide if P is
independent contractor or not. In federal law, jury would decide.
-Even though case could may be determined by outcome determinative test, SCOTUS elects federal rule
since VII Amendment creates strong policy in favor of jury decision
      Judge/jury issue not clearly decided by the outcome determinative test
-Strong federal interest> outcome determinative test
-Where state law would alter the essential character or function of the federal court (e.g. right to trial by
jury), the federal court will follow its own law.

 Conflicts between state law and FRCP under Erie:

Hanna v Plumer
     – If a state procedural rule and FRCP come into direct conflict, federal rule wins; federal courts have
         the right to enforce their own ―housekeeping‖ rules under §2072
P, an OH citizen, sues D's executor, a MA citizen, for damages for personal injuries suffered in a car
accident in SC. Federal jurisdiction is founded upon diversity of citizenship. Process was served according
the Rule 4 (now 4(e)(2)) by leaving the summons with D's wife at his residence. But, MA state law requires
in hand service, and D moves for summary judgment based on failure to comply with service laws.
-Under REA, Congress/Courts can create/apply FRCP as long as they don’t abridge/modify/enlarge any
substantive state laws
-Rule 4(d)(1) neither exceeded the congressional mandate embodied in the Rules Enabling Act nor
transgressed the rules as set out by Erie and its progeny, and thus service was properly served.

2 part decision:
   i.    Hanna 1: Judge made law use Erie Test – Assessing if a federal/state law conflict is outcome-
         determinative – need to see if having two rules would lead to forum-shopping or inequitable
         administration of justice
             Outcome determination examination occurs Ex-Ante
             Here answer is no: unlikely that P would choose forum based on service rules
  ii.    Hanna 2 : FRCP use REA Test
             Governed by Rules Enabling Act with authority of Congress behind it (Congressional
              authority from constitutional grant of power from the Necessary and Proper Clause of Art. I)
             "Any rules that are arguably procedural and rationally capable of classification as either
              procedural or substantive" complies with REA
                      To comply with REA the rule cannot abridges, modifies, or enlarges any state
                       substantive right

Walker v. Armco Steel Corp.
     – Sometimes Federal rules and State rules can peacefully coexist
     – To apply Hanna federal rule must come into conflict with state law. If not (if they peaceful
         coexistent), state rule is applied.
P, OK resident was hammering a nail into concrete when it shattered and damaged his eye. He sues D
manufacturer, with principal place of business outside of OK in federal court based on diversity of
citizenship. D argues that P's action be barred as in OK state procedure, statute of limitations runs until
process served. P argues that based on Hanna, Rule 3 applies for statute of limitations purposes, which
would allow his action to proceed (action commenced for statute of limitations purposes when complaint

Holding: Action is barred based on Oklahoma's statute of limitations.
SCOTUS: No conflict between FRCP 3 and OK law so no Erie issue – FRCP 3 has nothing to do with
tolling of state statute of limitations (has to do with when timing requirements for federal rules of internal
procedure, like when answer must be filed, begin to run)

 Conflicts between state rule and federal statute

Stewart Organization, Inc. v Ricoh Corp. – If a statute covers the issue at hand and is arguably
procedural it should be applied instead of state rule

P, an AL corporation, had an agreement to sell copier materials made by D (NJ). The contract contained a
forum selection clause requiring actions to be brought in any court in Manhattan. Business went sour, and P
sued for breach of agreement in District Court in Alabama. D moved for transfer to SDNY under §1404(a)
or dismiss under §1406. AL doesn’t enforce forum-selection clauses. §1404 says forum selection clauses
are a factor to consider.
-Because 1404(a) is sufficiently broad to cover the Alabama state policy and is Constitutional under Article
III's necessary and proper clause, it's application will determine whether the case will be removed to
Manhattan court.
-Test: Is there a federal law that affects the issue at hand (here §1404 governs transfer requests) / Does the
federal law conflict with the state law
-Federal statute should be applied if it represents a valid exercise of Congress’s authority under constitution
(Article III)
Kennedy Concurrence: §1404 controls and in §1404 mix, a valid forum-selection clause should have
controlling weight
Scalia Dissent: §1404 doesn’t control: no inconsistency between AL rule and §1404 (says §1404 only
applied when there’s no forum selection clause)
       If there was a federal rule that governed the validity of forum selection clauses, it would produce a
          lot of forum shopping and state law would control

Klaxon Co. v. Stentor Electric MFG Co.
    Federal courts have to apply the conflict-of-laws rules of the state in which they sit
    Choice-of-law rules determine substantive law of case (so if there were any difference with federal
       law it would be outcome determinative)

 Erie Breakdown:

 4 types of federal provisions that may conflict with state law:
 1) A federally constitutional provision- Constitution is the supreme law of the land. Its provisions apply even if
 they conflict with state law, substantive or procedural.

 2) A federal statute- Federal statutes are always the supreme law of the land, if they are valid. The issue is whether
 Congress had the authority to enact the federal statute. If the Hannah II test is met, the statute must be applied if it
 conflicts with state practice because Congress has the authority to enact the statute.

 3) Formal Federal Rule of Civil Procedure- The federal rule applies if valid. This is true if the rule is rationally
 capable of classification as a procedural regulation and do not abridge, enlarge or modify, a substantive right under
 REA (Hanna II)

  4) Federal Judge-Made Law- Hanna I (Outcome Determinative) indicates that a diversity court should still
 choose the state rule if the difference between it and the federal practice could prove outcome determinative
 meaning that following a separate fed. practice could lead to forum shopping or inequitable administration of law.

Erie Algorithm:
    1.) Is it an Erie question?
              a. Must be rival state/federal rules that seem to cover the same issue
    2.) What kind of rule is the federal rule?
              a. Federal rule can be:
                         i. Constitutional: Then we do not care what state rule is. Constitution trumps. No further
                            Erie analysis.
                        ii. Statutory
                       iii. Judicial/Judge-made rule (Erie, York, Byrd)
                       iv. FRCP (Hanna)
                        v. Hybrid of FRCP with embedded common law standards
                                 1. Rule 59: Grounds for a new trial
                                 2. Rule 8(c): Affirmative Defenses
                                 3. Rule 4(n): Jurisdiction over property
                                 4. Rule 50: Judgment as a matter of law
                                           a. Viewed as judge-made, even though governed by Rule 50. Some
                                              courts have held that federal courts must follow state rule.
                                           b. Wax thinks this is a FRCP. Umbrella of FRCP over common-law
                                              standard. Hanna II not Erie/York.
    3.) Do federal/state rule conflict or can there be ―peaceful coexistence‖?
    4.) Which rule prevails?
              a. Judge-made rule: Hanna I / York (Outcome determinative (forum shopping/inequitable
                  administration of justice)
              b. FRCP: Hanna II (arguably procedural/doesn’t affect substantive state law)
              c. Statute: Stewart v. Ricoh (statutes)

Shady Grove Orthopedic Associates v. Allstate Insurance - Upholds Hanna II Test

Facts: Shady Grove (P) sued Allstate (D) for interest on late insurance payments. Conflict between FRCP
23 (criteria for a class action) and NY statute §901b (no class actions to collect penalties). District /
Appellate Court dismissed, SCOTUS reversed.
Holding: Scalia
1.Fed/state rule conflict- ―may‖ in FRCP 23 is that plaintiff ―may‖ bring suit as class action, not that court
―may‖ not allow class action even if FRCP 23 conditions present
      Uniformity in federal system is priority: Doesn’t want FRCP 23 to not be allowed because of state
2. FRCP 23 valid under §2072(b) if it looks procedural even if it could be substantive or procedural/doesn’t
affect substantive state law - This could result in state/federal forum shopping but Scalia doesn’t care

Dissent: No conflict between rules - §901 addresses eligibility/FRCP 23 addresses certification for eligible

Basics of pleading and motions practice:
Burden of pleading/pleading standard in a federal court is a matter of federal law, even in a case addressing state law
o Rule 3, 7, 8, 12, 15 and 56
       Rule 3
              Civil action is commenced by filing a complaint with a court
       Rule 8
              (a) Claim for relief requires: A short and plain statement of the grounds of jurisdiction, statement
                 of entitlement to relief, and demand for judgment for the relief sought
                                Plead relief very generally
              (b)(1) – Answer to Complaint
                    Must admit or deny the factual and legal allegations of the complaint
              (b)(2) & (3) - Denials
                    Obligation on the part of the D to address each of the allegations in the complaint
                            If you want to reserve the right to deny/contest facts at a later point, you MUST
                               deny them in the answer.
                                  Pleading is a preview
                    Types of denials
                            Can deny generally (disfavored in federal pleading)
                            Special denial - everything in paragraph ___ is denied
                            (b)(4) Qualified denial - everything in paragraph ___ is denied except for _____
                            (b)(5) Dummy denial - I have insufficient information to say whether it is true or
                            Hedge denial - based on what I know (information and belief, subject to later
                               update), I deny
              (b)(6) - Failure to deny
                    If you do not deny it in the answer, the court assumes it is uncontested and will not allow it
                        to be challenged at a later point - failure to deny IS TO ADMIT
                    If a fact is asserted in a pleading for which there is no answer allowed by the other side -
                        that new fact is deemed denied
                            The fact that you don't have the opportunity to deny a fact does not result in that fact
                               being admitted
              8(c) - Affirmative defenses: 19. Not exclusive list.
                    Must be pled if want to bring up in trial
                    In federal court, it is up to the defendant to inject defenses into the case by pleading them in
                        their answer (list of such defenses is defined by federal procedure)
              8(d)(1) – Pleadings to be simple, concise, direct
              8(d)(2) – Alternative/inconsistent pleading allowed
              8(e) – Construing Pleadings: Courts should give people the benefit of the doubt / construe
                 pleadings so as to do justice

       Rule 12
       Response to complaint must respond to/try to disprove P’s facts and legal arguments
             Defendant has 2 choices
                   Can make motion to dismiss on preliminary procedural grounds under FRCP 12
                   Can load all preliminary objections into the answer (FRCP 8)
             (b) – Motion to Dismiss (MTD)
                      SMJ, PJ, venue, process, service, failure to state a claim, failure to join 19 joinder
             (c) – After answer is filed but before trial, can move for judgment on the pleading
             (d) – 12(b)(6) or 12(c) Motion + some other information that wasn’t in pleadings (e.g. an
                affidavit) = judge must treat as motion for summary judgment
             (e) – Motion for a more definite statement
                          Tension with notice pleading requirement
                          Judge has discretion to:
                                 Dismiss claim for insufficiency
                                 Grant motion
                                 Tell D to wait for discovery
                 (f) – Motion to Strike
                 (g) – Consolidation requirement
                      Motions can be joined
                      Motion must include all defenses (cannot add more defenses later - must plead all
                         objections that you have at one time)
                      Court does not want to be continually bombarded with separate motions
                 (h) - Waiver or preservation of defenses
                      SMJ motion may be made at any time
                      Defenses are waived if not made by motion before answer or in answer
                 (i) – Hearing before trial
                        12(b)(6) or 12(c) motion must be heard/decided before trial (unless court orders
                          deferral until trial)
                          Judge can hear initially (judicially) or postpone until trial and tried to the jury

Dioguardi v. Durning – Liberal Pleading Standard
        Facts: P submitted a very crude complaint against D for conversion. D made a 12(b)(6) motion to dismiss
                  Pleading was sufficient under Rule 8(a): All that’s needed is short/plain statement showing the
                      possibility that the facts stated could amount to a claim for legal relief
                           o No threshold amount of facts required
                  Shift from formal to functional approach
Conley v. Gibson –―No set of facts‖ standard
           Unless there’s no set of facts that plaintiff could prove that are consist with his complaint/would entitle him
            to relief on any legal ground, the claim is in - Just don’t plead yourself out of a claim
          Exemplary of notice pleading.

Current system of pleading:
Notice pleading
         o 2 major approaches
                Party notice (discovery pleading/answer notice) – dominant standard, lenient
                       Purpose of pleading is to allow the other side to take the next step in the process
                       Gives other side the info they need to answer the allegation, sort through the facts
                       Avoids technical traps for the unwary
                       Satisfied if defendant can formulate an answer
                Judicial/Systems notice (elements pleading standard)
                       Signals to the court that party can prove elements of its cause of actions
                       This is the trend because of claims that bring about deluge of highly specific and
                          burdensome discovery requests: Antitrust/ Discrimination & Civil Rights (hard to prove
                          mental elements)

3 burdens:
         o    Burden of pleading
                Default rule: Assume P has burden of pleading all elements of the COA, D has burden of
                    pleading defenses
                Many exceptions - rules for pleading in state court are different from rules for pleading in federal
                    court (pleading = procedural)
                       In federal court, pleading requirements on the plaintiff are radically different from the
                           requirements on the defendant
                                  Defendant is expected to plead with specificity if they want to inject (put in to
                                   discuss later) an issue into the case - governed by Rule 8c, explicit pleading /
                                Plaintiff is not required to plead expressly each element of the complaint -
                                   mostly implicit pleading / more relaxed
                 Federal burden of pleadings applies in federal court

         o   Burden of persuasion (trial level)
               Several levels: criminal cases (beyond a reasonable doubt), 2 for civil cases ( 1: preponderance of
                   the evidence - more likely than not, acts as a tiebreaker – in a tie whoever has this burden
                   loses; 2: clear and convincing evidence - libel and slander cases, does not have a clear
                   operational purpose)
               Default rule: Party that has burden of pleading has burden of persuasion
                      On federal court on a state law claim (where the state law governs), federal law
                          determines the federal burden of pleading, state law determines the burden of persuasion
                                Substantive
                      Assume P has burden of persuasion for all elements of the claim and D has burden for all
                          elements of defense.
              Interplay w/ Burden of Pleading:
                      Usually burden of pleading and burden of persuasion rest on same party but not always
                          (tendency to shift burden of persuasion into party that is best able to meet that burden)
                                Payment of a note
                                Contributory negligence (some states)
              State burden of persuasion travels with the cause of action (Erie question- OD)
              Federal burden of persuasion determined by substantive law

         o    Burden of production
                  Comes into play at the summary judgment phase and at trial (judgment as a matter of law)
                  Legal decision for judge
                  Amount of competent, admissible evidence, if any, that a party must put into the case which would
                     allow a reasonable jury, if they believed it, to find in their favor
                         Only tells us who COULD win, not who WILL win
                  Party that has a burden of persuasion on a particular element also bears the burden of
                     production on that element
                  Default rule: P has burden of persuasion and production on all elements of COA; D has burden of
                     persuasion and production on all the asserted defenses
In state law, if something is called a defense, assume that the D has the burden of persuasion and pleading
          o Taylor court says this doesn't matter- for federal court, Erie question is going to be resolved differently
              for federal court

Who bears the burdens on federal procedural matters?
       o Come into play when D makes motion to dismiss for any of the 12b reasons; these sometimes involve
            fact finding- who bears the burden on these facts? The Plaintiff.
       o P usually carries the burden of proving SMJ, PJ, proper service, etc. - shows difference between
            burden of pleading (D) and burden of persuasion (P) in rule 12

Complaint and Dismissal on the Pleadings
        Under Rule 8(a), you do not need anything specific in the pleadings
            o Simply state a claim upon which relief may be granted and leave room for what you are going to

Garcia v Hilton Hotels International, Inc
     – All that is necessary for a valid claim under 8(a) is a statement of a claim upon which relief may
          be granted and pleading does not need to include all elements of a claim (P’s pleading rules are
     – Example of the old notice pleading standard
P, a resident of Puerto Rico, brought suit for defamation against D, a DE corporation, in District Court of
PR. Complaint asserts that P was violently discharged and falsely and slanderously accused of pimping.
Paragraphs 5-8 assert that the same slander occurred during a hearing in Puerto Rico's Labor Department.
D filed motion to dismiss on 12(b)(6) (required element of publication not made explicit in P’s complaint)
and to strike parts of complaint that are privileged

-D's motion to dismiss denied. When P alleges slander in complaint, it’s taken as alleging all the elements
of slander (including publication).
- Comments made in labor proceeding have absolute privilege (no liability for any statements made) = No
remedy/12(b)(6) as can see on basis of complaint that it cannot succeed
      Vs. Conditional privilege (no liability unless malice/knowledge that statements are false) = P
         should have chance at trial to prove facts that defeat the privilege
-D's motion for a more definite statement, under Rule 12(e), is granted
      Can move for a more definite statement if more details are needed to mount a realistic defense.
      Demonstrates the winnowing process of pleading system – parts of a claim may be struck down
         while others are upheld
      12(e): way of salvaging complaint that doesn’t meet notice requirement on assumption that P
         could fix complaint to meet pleading requirement if amended

 New/Heightened Pleading Standard:

 -Twombly: For antitrust cases, pleading requires more than Conley v. Gibson standard
     Followed deluge of easy to bring, hard to prove cases (usually had to prove a mental element) that took lots
        of judicial resources
     Erickson (a few months after Twombly): SCOTUS cites Conley with approval

 Iqbal v. Ashcroft
  - Expands Twombly plausibility standard for pleading requirements to apply to all cases, not just antitrust
  - Demonstrates shift from notice pleading to more stringent system pleading
          o Courts can still use discretion based on case-by-case analysis. Back door open for Conley v.
             Gibson standard

 Facts: P was detained post 9/11 and allegedly subjected to harsh conditions as a high-interest detainee. P
 was eventually jailed/deported for falsification of identity documents. P sued AG John Ashcroft and FBI
 director Mueller for violation his 1st amendment rights (D’s engineered the detention of Arab Muslim men
 because of their nationality/religion). Requires proof of mental elements/burdensome discovery.

 Holding: Claim dismissed. In pleadings, possibility will no longer suffice, must show plausibility
  - Court repudiates ―mere possibility‖/Conley v. Gibson standard
  - Claim must be plausible, which is a context specific inquiry:
           o Need something in facts that points to violation of law rather than an innocent explanation
           o How much/how extensive and burdensome of discovery will need to be conducted
           o Formulaic recitation of elements are not enough.
  - Conclusory allegations no longer sufficient (cannot just use a legal labels/assert that whatever person did
       meets the legal label)
 (1) Court is concerned with pragmatic impact of allowing a case to go forward – Discovery would be
 disruptive for gov officials
 (2) Conley v. Gibson standard might apply in some cases
 (3) Plausibility: Give the court some reason to think that P’s allegations are a little more likely true than an
 alternative explanation.

 The Paradox of Iqbal: There will be cases where P cannot meet burden because D has the info he
 needs and P cannot get it until discovery. A lot of power in the discretion of the judge.

Answer, Reply, and Amendments
Asymmetry between standards for P and D
   P’s pleading:
    By pleading COA, P is deemed to have pleaded all elements of COA, whether or not they said it in so many
        words -- liberal pleading requirements for P
             Garcia -- P saying "defamation" includes pleading of all of the elements thereof
   D’s defense:
    D has an obligation to be responsive to the complaint's assertions
         Extends both to law and fact
         Need to answer each assertion of fact -- if not contested, it is deemed admitted
                  If facts are asserted in the final pleading where no response is allowed, though, they are
                      assumed denied

Affirmative Defenses
     Affirmative defenses have a heightened specificity requirement for pleading, as opposed to simply denying
        or affirming or denying averments in the complaint
              Partly easy -- there's a list in Rule 8(c)
              Partly hard -- the residual clause in 8(c) (Ingraham and Taylor explore this)
     4-part test (from Ingraham) to determine affirmative defense
                 1. Can the matter at issue fairly be said to a necessary or traditional element of the cause of action?
                 2. Which party has better access to the relevant evidence?
                 3. From a policy perspective, it the matter one that is typically indulged or disfavored?
                 4. Will P be harmed/predjudiced by unfair surprise?

Ingraham v United States – Demonstrates the 4-part test above
P sued Gov't physicians (D) in consolidated medical malpractice cases. In both case, after judgment was
received, D moved for relief from damages based on a TX statute that places caps on certain medical
malpractice awards (Medical Liability and Insurance Improvement Act of TX), which wasn’t brought up in
pleading or during trial
The Texas statutory limit on medical malpractice damages is an affirmative defense under Rule 8(c),
because it is likely to take P by surprise (P would have addressed during trial), D has better access to
relevant evidence, and caps on damages are traditionally disfavored.

Taylor v United States – seems to run contrary to Ingraham, stating that caps on liability for damages are not
affirmative defenses under 8(c)
Facts and Procedure
Medical malpractice military case. US District Court awarded damages of $500,000 to P for emotional distress/loss of
consortium. D moved for a reduction based on CA Civil Code limiting recovery for non-economic injuries to
Affirmative defenses bar recovery, CA law merely limits recovery. If FRCP don't require P to plead amount of
damages sought w/ specificity, D should not have to plead limitation of damages
      Under 8(a), P is not required to plead specific amount of damages - so D is not required to deny or defend
      Under 8(b)(6), whatever amount of damages P asserts, D is assumed to deny them

Gomez v. Toledo
- Where there is a statutory cause of action, look at the statute. If the element in question is not set in the cause
   of action then P doesn’t have to plead it.

Facts: P testified against two fellow police officers for falsifying evidence and was subsequently fired. P sued D
under §1983 claim. D asserted defense of qualified immunity and said P had burden of pleading D’s bad faith to
overcome his qualified immunity. §1983 claim requires P to assert (1) that he was deprived a federal right and (2)
by someone acting under color of state law.
Holding: Court says D has burden of pleading good faith because:
 - Bad faith is not an element of COA as listed in §1983, ergo is a defense
 - D is in better position to know his own state of mind/have evidence that he was trained as to what is
     acceptable behavior
Rehnquist Concurrence: Only deciding this case based on burden of pleading and not burden of persuasion
(thinks burden of persuasion should shift back to P – higher bar to succeed on a §1983 claim).

 Rule 15 -- Amendments and Supplemental Pleadings
               Safety valve to Rules 8 and 12
 Rule 15 basically says:
  - Anything can be amended with judge’s permission
  - Judge’s permission is given upon two factors:
        o Will interests of justice be furthered
        o Will there be prejudice to the other side (**most important)
 15(a) – Amendments made before trial
              o Party allowed to amend pleadings once as matter of course; very narrow time frame
              o Then, can only amend with consent of other party OR at discretion of court
              o Objections under 12(b) have negative pregnant. If not filed as an amendment as of right then
                   judge cannot grant at a later time.
 15(b) -- Amendments based on what happens at trial

                  (1) When evidence is objected to as outside the issues raised in the pleadings, amendments may be
                   allowed by the judge to add relevant issues
                (2) Issues not raised in the pleading but tried by implicit or explicit consent must be treated as it
                   they were raised in the pleadings
                        Express consent : Other party allows it, signals willingness to talk about issue
                        Implied consent: Other party says nothing or puts out counter evidence against the issue,
                           thus implying that they are ok with it
                        Non-consent: Up to the judge whether to allow the issue to come in, motivated by:
                                  If the presentation of the merits of the action will be served
                                  The objecting party fails to satisfy the court that the admission of such evidence
                                     would prejudice it
 15(c) – Relation Back: A way to preserve the date of filing
                (a) When permitted by law that provides statute of limitations
                (b) When claim/defense in amended pleading arises out of same T&O as initial filing
                (c) When amendment seeks to correct mistaken identity of a party AND the party knew or should
                   have known that the action should have been brought against them

Beeck v Aquaslide 'N' Dive Corp.
– Amendments under 15(a) are freely granted unless there is a showing of bad faith or great prejudice on
the non-moving party

P was injured on what may have been one of D's pool slides. D initially admitted to be the manufacturer of
the slide, based on the conclusions of three different insurance companies. Later, when D's president
inspected the slide himself (six and a half months after the statute of limitations had run out on P's claim
against other manufacturers) he determined that it was not manufactured by D. D filed 15a motion to
amend pleading (change admittance to denial), preliminary trial determined slide not made by D and
granted SJ

Foman v Davis standard for allowing 15(a) amendments:
              Leave to amend "shall be freely given when justice so requires"
                       Only denied when there is reason (three elements)
                                1. Bad faith or dilatory motive;
                                2. Undue Delay / repeated failure to amend earlier; or
                                3. Undue prejudice
              Prejudice must be shown -- the burden is on the party opposing the amendment to
                  show such prejudice
              A trial court's decision to allow or deny is in their discretion -- reviewable only for an
                  abuse of discretion
Movements to amend shall be freely given when justice requires, and denied only in cases of bad faith or
undue delay on the part of the amending party or when great prejudice will be caused to the other
party. The court says there’s no prejudice, D just getting a chance to show it wasn’t the manufacturer.

-Wax says there is some prejudice (statute of limitations has run) but disallowing amendment would result
in absurd trial.

Worthington v Wilson – For a change of name to relate back under 15(c) original name must be a mistake

P was arrested by two police officers, who deliberately grabbed him by his injured hand, causing further
injury. In his original complaint, he claimed ―three unknown named police officers" violated his
Constitutional rights under § 1983. P amended the complaint and named D (the two officers, by name) and
D moved to dismiss on the grounds that the statute of limitations had run
Rule 15(c)(1)(C): (i) Named parties have to have (constructive) notice about the action + (ii) known or
should have known that but for a mistake they would have been sued
     o (i) Officers knew about lawsuit
     o (ii) No mistake: mistake is not failure to name, rather that you put in one name and it’s actually
          another name – Way to encourage people to do due diligence before filing complaint
Erie question
                P says state law applies -- there is an IL law allowing for putting down unknown parties
                7th Circuit -- "federal courts absorb state law only when federal law neglects the topic"
 - Though the parties had constructive notice within 120 days in accordance with15(c)(i), amendment
      does not relate back because does not involve a mistake as needed by 15(c)(ii)
 - Federal law controls, despite the fact that there is an IL statute directly related to this issue, because
      when there is a direct conflict between a FRCP and state rule, federal wins (court reads negative
      pregnant into 15(c) – says 15(c) covers the entire field of relation back, so if it doesn’t explicitly give
      permission then it denies permission)

Notes: If you wanted to argue that state law should govern, say there is no Erie problem: No negative
pregnant in 15(c). 15(c) just doesn’t address unknown parties so does not conflict with state law.
**Wax likes the court’s holding (negative pregnant).

 Krupski v. Costa Crociere SpA - Relation back under FRCP 15(c)(1)(C) depends on whether the party
 to be added knew or should have known that but for a mistake they’d be named as a defendant

 Facts: P tripped/hurt herself while on a Costa Cruise Lines cruise. P filed a negligence claim against
 Costa Cruise, which after the statute of limitations had run informed P that D (Costa Crociere) was the
 proper D. D filed MSJ as the statute of limitations had run.

 Holding: FRCP 15(c)(1)(C)(ii) ask what the prospective defendant knew/should have known during the
 4(m) period, not what the P knew.
     o D knew/should have known that but for P’s mistake as to which Costa entity was proper, they
          would have been named as a defendant
     o Nothing indicates that P failed to name D for any other reason than a mistake

                                   Summary Judgment
Summary Judgment is used for determining if there is any point in going forward with the case.
      o Forces the parties to put their cards on the table and demonstrate to the court that they can win the case
           should the jury believe them.
      o Tests the sufficiency of the evidence brought forth by the party for possibly winning the case

Relationship between Rule 12c/12b6 and 56 - if any matter outside the pleading, including the affidavits and
supporting documents, is attached to the pleadings on a motion to dismiss (12c or 12b6), it must be treated as MSJ
         o Difference between 12(b)(6) and 12c - motion is made after the answer in 12c and before the answer in
         o Function of a motion to dismiss on the pleadings is to dismiss fact pattern for being outside the law (on
             the surface)

Affidavit - any piece of paper evidence which would be competent in itself to be put before a jury to prove a fact
         o Under rule 56, to succeed or defeat a summary judgment motion, a party does not have to put in
         o Affidavits necessary when:
                 Your strategy in opposing is to create a material issue of fact - cannot create a material issue of
                     fact without putting in your own affidavits/competent evidence (Rule 56(e))
         o Not necessary when:
                 Cases where the other side has the burden and all you are doing is using the "finger pointing"
                     strategy, ie you are saying that the movant has not met their burden
                         Don't have to put anything in when notifying the court that the other side has not put in
                            enough to meet their burden

Summary judgment questions
   o Based on the governing law, Is there an issue of material fact?
            Would the case come out differently if D was allowed to refute P's claims?
            Material fact - fact is inseparable from rule of law
                   o If, even if the P can prove all the facts, the case would still come out the same way, the
                        facts are not material
   o Is the moving party entitled to judgment as a matter of law?
            Taking all the facts alleged in the light most favorable to the non-moving party, can they win?
              (same test as issue of material fact question)

Alderman v. Baltimore and Ohio R. Co.
       Facts: P injured when train derailed while traveling with a free pass on D’s train; pass provided
              limitation on liability, except in case of willful/wanton conduct
       Holding: Motion for SJ granted, as complaint states no facts/ D’s un-denied affidavits show that P
       can establish no facts upon which a jury could find willful/wanton conduct

When is Summary Judgment Appropriate?
     To succeed on an SJ motion, court must find:
          1. Non-moving party has not met its burden of production
          2. Non-moving party has not created a genuine issue of material fact
          3. Moving party is correct on the law

 Rule 56:
       56(a): P can move for SJ with or without supporting affidavits
       56(b): D can move for SJ with or without supporting affidavits
       56(c): Timing / Proceedings
             o SJ shall be granted if all pleadings and discovery materials show that there is no genuine issue on
                 any material fact and the moving party is entitled to judgment as a matter of law
       56(d): Judges may render partial summary judgment
             o SJ may be rendered on specific issues, while leaving the remaining issues open for adjudication
       56(e): Affidavits / Further testimony
             o Parties may introduce supporting and opposing affidavits stating such facts as would be
                 admissible and about which affiant would testify
             o When making MSJ, non-moving party must present evidence to demonstrate genuine issue
                 of material fact
       56(f): When affidavits are unavailable
             o Judge has discretion to refuse motion or to order further discovery before ruling on MSJ
       All facts must be taken in the light most favorable to the non-moving party

 Burdens of production provides many options for strategies in SJ:
 Support SJ
         o Opponent wrong on law (dispute law)
         o Movant has met burden of production + No material issue of fact
         o Opponent hasn’t met burden of production + No material issue of fact
         o Non-moving party has failed to create a material issue of fact

 Oppose SJ
         o    Dispute facts -> if material, you can defeat a MSJ. Must produce evidence to support allegation of
          o   Dispute law
          o   Insufficient facts to satisfy law
                 Movant failed to meet burden of production (if movant has the burden on that element)
                         Not credible/admissible
                         Missing element

Celotex Corp. v Catrett
– b/c P has the burden of production, D can ―point at the evidence‖ and say ―that isn’t enough‖ without
presenting evidence to support this claim and get summary judgment

P sued 15 corporations for negligence for the death of her husband due to asbestos exposure. D moved for
SJ, stating P failed to meet burden of production on element of causation (husband had multiple exposures
to multiple products with asbestos). D did not attach affidavits. P presented affidavits from witnesses but
they were ruled inadmissible/hearsay.
56(c) requires only that moving party indicate where the deficiency is in the other party's "pleadings,
depositions, etc" No requirement that moving party have materials negating the opponent's claim
      Rule says "affidavits, if any" (so not all MSJ need affidavits)
      And 56(a) and (b) both say with or w/o supporting affidavits
Rule 56(c) requires that the moving party indicate where the deficiency is in the other party's argument and
does not always require materials negating the opponent's claim.
Dissent (Brennan)
Moving party, when the burden of persuasion is on the non-moving party, must show some sort of
affirmative demonstration that non-moving party's evidence is not sufficient (show lack of evidence in the
record, etc) - Otherwise, summary judgment would become a tool of harassment

  Scott v. Harris - Court looks at evidence comparatively to decide if SJ appropriate

  Facts: P was leading a high-speed car chase when D (police officer) bumped P’s car off the road, P suffered
  serious injuries. P produced affidavits stating he was driving like an angel. D produced a video of the
  allegedly reckless driving (indisputable evidence). D filed MSJ stating he had qualified immunity because
  he acted reasonably as P’s driving posed a substantial and immediate risk of serious physical injury to others
  Holding: Court controversially looked at both parties’ evidence and determined that no reasonable jury
  could find for P. MSJ granted
   - When the video was shown to different demographics, not everyone believed P’s driving posed a
       substantial and immediate risk of serious physical injury to others - Could have been a jury question.

Anderson v Liberty Lobby, Inc.
- The standard of proof that applies at trial affects the amount/quality of evidence at the SJ phase.

P right-wing publisher sued D (Investigator magazine, its president and publisher) for libel. D moved for
SJ on the ground that P could not prove by clear and convincing evidence that D acted with actual malice
(which has higher than average evidentiary requirement).
In assessing SJ motion, evidentiary burden at trial determines burden of production required for SJ motion
               Judge, on MSJ, determines whether, if jury came out on the side of P on all those issues,
                  P could win -- would s/he still meet the substantive evidentiary standards
P has not met the standards of evidence needed to show malice, D's motion for SJ should be granted

-Wax thinks this holding is wrong: Evidentiary burden concept only applies when weighing/comparing
evidence at fact-finding stage (burden of persuasion is a comparative exercise: weighing and evaluating
the evidence), whereas SJ about having enough evidence to withstand SJ motion (burden of production is
a legal conceit that if we believe it all" is it enough that you could be correct)

 MSJ Process
    1. Who is the moving party and who is the non-moving party
    2. Who has the burden of production on material issue / Have they met it
                       Assume P has burden for all elements of complaint
                       Assume D has burden for all elements of a defense
    3. Is there a dispute of material fact?
                       Is there competent evidence on the table -- use common sense on this
                               if it's something that the party/individual could get up and testify about, then its
                                   competent evidence
                               if not, then there's got to be an affidavit (documentary evidence)
                       56(e) -- both sides have to put in competent evidence regardless of whether they have the

              JAML, Jury Instructions and Appeals
Rules of Judge and Jury in FRCP:
         o Directed to police the boundary between judge and jury
                Jury finds facts, judge finds law in federal court
                VII Amendment of Constitution – Right to trial by jury in common law (not equity/legislation)
                Concern with controlling the jury (they might ignore/not understand the law)
         o How do we police the boundary?
                Process of voir dire
                       Vetting the jury
                       Questioning of biases in jury
                Checks on jury misconduct or error in FRCP
                       FRCP 50 (verdict can be decided before jury deliberates or reversed), 59 (Judge can grant
                           new trial), 60 (Relief from judgment)
                              Courts can second guess the jury under limited circumstances

Rule 59 – New Trial / Amending Judgments
    o (a)(1): Codified common law grounds for a new trial (any reason for which a new trial has heretofore been
             Not listed due to numerous grounds for a new trial
             4 general situations in which new trials will likely be granted
                        Significant procedural error - limited by FRCP 61 (no new trial for harmless error)
                        Jury misconduct
                                Iowa Rule: Impeachment for misconduct only for extrinsic interference
                                     (something from the outside affecting inside: bribery/jurors reading outside
                                     newspaper article)
                                Texas Rule: Misconduct can be found for things that happen ―inside‖ during
                                     jury deliberation
                                Federal Rule: Forbids impeachment on jurors mind/emotion; permits
                                     impeachment on outside influence (bribery/following news)
                                           US v. Tanner: Could jury be impeached for being drunk? - No
                        Verdict is against the great weight of the evidence
                                Judge throws out jury verdict and re-weighs the evidence with new jury
                                Doesn’t violate VII Amendment because issue is considered by a new jury
                        Excessive verdict: Questions determination of damages
    o (a)(2) If it is a nonjury trial, on a motion for a new trial the court may reopen the proceedings and allow in
        more evidence / direct entry of a new judgment
    o (b): Time to file a motion for a new trial – 28 days after entry of judgment
    o (d): New trial on court’s initiative if court thinks there was a bad error in trial/parties dropped the ball
             Motion doesn’t need to be driven by the parties
    o (e) Motion to alter or amend a judgment must be filed within 10 days of entry of the judgment

Rule 60 – Relief from judgment (post-trial)
         (a) - clerical error
Rule 61 - Sets limits on correcting errors - No harmless error shall be allowed to disrupt the result of the case

General Jury
Rule 47: Selecting Jurors
Rule 48: Number of jurors + Unless otherwise agreed to jury verdict must be unanimous
Rule 49: (a) Special Verdict – Jury determines facts, judge decides law
        (b) General Verdict – Jury determines facts and law, usually a yes or no answer (poses problem for res
        judicata/collater estoppel)
Rule 51: Instructing the Jury
-Goal of Rule 51 – Minimize error in jury instructions
         o Immediacy interpretation gets at the most effective way of maximizing the chances of getting the
             instructions right because it is closest to the actual instruction
         o 2 timeliness qualifications
                If a party has been informed of an instruction, objection has to come under 51(b)(2)
                If a party has not been informed of an instruction, objection has to come promptly after learning
                    that the instruction will be/has been given
     Rule 51(a): Requests
          Parties may provide written requests for instructions before the close of evidence
     Rule 51(b): Instructions
          Court must inform parties of instructions before instructing the jury and before final jury arguments
          Parties must be given an opportunity to object to instructions on the record and out of jury’s hearing
          Judge may instruct the jury at any time before the jury is discharged
     Rule 51(c): Objections to Instructions
          (1) Objections to instructions must be made on the record, distinctly stating objection and grounds
          (2) An objection is timely if:
                  o (2)(A): An informed party objects before jury instructions and final arguments are delivered
                  o (2)(B): An uninformed party objects promptly after learning that the instruction or request
                       will be, or has been, given/refused
     Rule 51(d): Assigning error and plain error
              (1)(A) An objection must be made to an actually given instruction in order to assign it as error
              (1) (B) A party may assign as error a failure to give an instruction, if properly requested and also
                  properly objected to when not given
              (2) When objection hasn’t been preserved, appellate court may only consider a plain error if the
                  error affects substantial rights

 * objections to instructions are waived if not
Alexander v. Kramer Bros. Freight Lines, Inc. made at trial

Facts: Two tractor trailers collided, equally believable stories so case came down to who had the burden of
production. Judge gave jury wrong instructions about which side had the burden of production (not harmless
error), but Alexander did not object in the proper manner according to FRCP 51
Holding: Party cannot say instruction was in error unless it was objected before the jury retired to consider its
verdict and stated distinctly the matter objected to and the grounds of the objection (Old Rule 51)
      Timing of D’s objection did not meet FRCP 51’s requirement (objected several days prior to the time
          for charging the jury, judge reads FRCP 51 as meaning objection must occur immediately before
          jury retires).
      Didn’t provide grounds for the objection
      The case is not of the exceptional character to allow the appellate court to correct an error in the
          absence of an objection
               o Must seriously affect fairness/integrity by being very outrageous (bribery, collusion), can’t
                    just be that the court got it wrong

Jury misconduct:
-Three Schools:
        o Iowa rule
                Jury impeachment is limited to evidence of extrinsic misconduct (bribery, outside influence)
                No testimony taken as to the internal process of deliberation itself
        o Texas rule
                Any influence (internal or external) can act as grounds for jury impeachment
        o Federal rule is closer to the Iowa rule
                Governed by rule of evidence, rule 606(b)
                Impeachment of a verdict is forbidden if based upon anything relating to the juror's mind or
                   emotion, but is allowed when there is outside influence on the jury
        o Tanner v. United States - Was it jury misconduct for the jury to have a few drinks during a lunch
            break? Is this extrinsic or intrinsic?
                Not impeachable - alcohol and drugs are intrinsic and thus beyond impeachment

Texas Employers’ Insurance Association v. Price

Facts: Price (P) was involved in an accident and brought a claim that he was totally and permanently
disabled. P’s level of disability was a question at trial. A jury member related his personal experiences to
persuade the jury that Price was totally and permanently incapacitated. Juror testified that he had tried to
persuade the jury. D appealed for jury misconduct.
     Juror stated that he knew from experience that Price would not get a job with any company that has
         a union contract or employee benefits

Holding: It was misconduct for the juror to use his own personal experience as original evidence of material
fact to be considered in the jury deliberation.
-Real Issue: Juror changed the legal standard for disability from whether you’re capable of doing the job to
whether plaintiff would be hired (leading the jury astray on the proper standard/instruction).

Judgment As a Matter of Law- JAML (Directed Verdict and JNOV)

-DV/ JNOV = Traditional ways for court to take decision from jury
    Directed verdict: At some point in trial, after evidence has been heard, judge would determine not enough
       evidence for one side to win, so there’s no point in having the jury deliberate
    Judgment notwithstanding the verdict: Jury decides verdict, judge decides verdict should be reversed
           o If judge gets overruled in appeal, appellate court can just re-instate jury verdict rather than having
               to re-try entire case as would happen with a directed verdict
           o Also, chance that jury might rule what judge was going to decide on motion anyway and then
               judge doesn’t have need to rule on the motion

Rule 50 – Judgment as a Matter of Law (JAML)
    o (a): Motion for JAML can be made any time before the case is submitted to the jury, but it must be made
        at some point before the jury goes out
              Based on evidence presented, court believes that no reasonable jury would have a sufficient
                 evidentiary basis to find for the non-moving party
    o (b): After jury verdict, motion for JAML can be renewed if has already been made before jury deliberated
              Court may allow judgment on the verdict, order a new trial, or direct entry of JAML
    o (c): When ruling on a JAML motion, judge can order a new trial

   o Allowed any time prior to jury deliberation
            Cannot be brought up for the first time after the verdict
   o Basically same analysis and concept as MSJ but at a later stage in the case (so looks at evidence presented,
      not just pleadings)
            If the fact-finder takes the evidence in the light most favorable to the non-moving party, is it
                reasonable that that party would prevail
            Scintilla standard for JAML - Very deferential to jury/ reluctant to change jury verdicts
                      Even a tiny bit (a scintilla) of evidence to support the case of the winning party is enough
                         to give the jury the benefit of the doubt
   o Federal v. State Courts not uniform w/ JAML
            Federal courts tend to defer more to jury (smaller role to judge) when assessing if evidence is
                sufficient for a reasonable jury to find for the part
            States tend to be stricter on amount of evidence needed for a reasonable jury to find in favor
   o JAML goes issue by issue: judge can enter judgment on some issues and leave others for jury
   o Parties may couple motion for judgment as a matter of law with a new trial motion as court may not be
      willing to reverse verdict, but may be able to say something went wrong so a new trial is necessary
   o JAML can be used when:
            Evidence for rival theories is sparse but pretty evenly matched
                          Easy to say that no reasonable jury could pick one as the better story
                          Courts sometimes accept jury’s verdict (Lavender), sometime don’t
            Evidence is lopsided, but side that got the verdict has the lesser amount of evidence
            Evidence is dense but evenly matched
            Evidence for rival scenarios is sparse, but tends to favor one side

  Lavender v. Kurn
  Facts: Haney killed on job as railroad switch operator. Different theories to whether he was hit by a mail-
  hook on a passing train or murdered. Jury found for P (Haney’s administrator). Appeals court reversed
  through JNOV as there was no substantial evidence of negligence (claimed jury made decision based on
  speculation rather than sufficient evidence).

  Holding: SCOTUS reversed
  Scintilla standard for JAML- if there was even a tiny bit of evidence that would allow the jury to come to
  the decision that it came to, then the jury’s decision must stand

 Sufficiency and the Scintilla Rule
              Is there enough evidence for the jury to make a reasonable decision
              Scintilla rule -- it does not take much evidence to be sufficient

Denman v Spain
   – Illustrates the stricter level of evidence in most states (this is a MS state case)

P (injured little girl) and D (deceased) were in a car accident with no record as to who caused it or the
circumstances that led to it other than the testimony from two witnesses. Witnesses just testified that D’s
car was speeding but stayed in its lane and didn’t wobble. Jury ruled for P, judge granted JAML
P has burden of production of evidence that D proximately caused or contributed to the accident.
                None of the evidence presented leads to a certain conclusion
                Verdicts cannot be based on possibilities
-JAML appropriate as no reasonable jury could find for P based on evidence presented
-Evidence of D’s speeding not sufficient (too little evidence), Court wants evidence of causation (which
rarely actually exists)
-While Lavender v. Kurn only asked for a scintilla of evidence, here court (a state court) asked for more

Daniel J. Hartwig Associates Inc. v. Kanner
-JAML is appropriate when one side fails to meet its burden of production or burden of persuasion
     Bare denial of claims is not enough for an affirmative defense, must present evidence
-Burdens of production/parties that have them is really critical not just at SJ phase but at JAML phase.

P provided consulting services for D (lawyer). P filed lawsuit for breach of contract for failure to pay for
his services. D argues affirmative defense that P misrepresented his credentials and failed to mention a
possible conflict of interest in a trial. D did not appear in court during the trial and submitted no evidence or
testimony to prove the alleged misrepresentation. Court grants JAML for P.
P has burden of production against D’s affirmative defense which he has met. D hasn’t met burden of
production on affirmative defense factors (for fraudulent misrepresentation must show that Hartiwg
falsified his resume/that D relied on it/ that D suffered harm by it)
      Must put on evidence that the jury could believe (gave no evidence by not coming to trial)

Because D failed to produce any evidence that there was misrepresentation, JAML is appropriate as P has
proven breach of payment.

Pennsylvania RR v Chamberlain
     – If the evidence of one side is mere conjecture, while the evidence of the other side purports to be
          eye-witness empirical observation, JAML/ a directed verdict is appropriate.
     – Courts look at evidence comparatively to see if a reasonable jury could find for a party
     – Courts who uphold insufficient facts cite Lavender, if want stricter standard will cite Pennsylvania
P was killed at work as a brakeman for D railroad company. P’s estate sues arguing there was a negligent
collision between trains. All witnesses (RR employees) but one say there was no such collision. Standout
didn’t see any collision, but while standing far away heard a crash that might have been from a collision.
Jury decides for P, Judge grants JAML.
SCOTUS: JAML appropriate as RR testimony so overwhelming/solid and testimony for P is so flimsy/
presents no evidence on the actual collision
      P’s evidence doesn’t meet the burden of production

Direct conflict in testimony would normally go to a jury but SCOTUS works really hard to say this is a
JAML situation
     Says that P’s witness is just an inference/mere conjecture, rather than direct evidence, there is not
         conflict with the testimony of the witnesses who observed the incidence

-When assessing evidence, most courts look at all the un-contradicted evidence
-One fly in the ointment -- element of credibility
     A reasonable jury could have decided that D's witnesses were not credible / that railroad men
         could have been put up by the railroad, etc.

 Erie Inconsistency w/ JAML
       o Rule 50 addresses JAML, so it strongly suggests JAML is arguably procedural thus we use the federal law
           (FRCP 50) instead of the state law in federal court
       o State courts have their own procedural rules, so in state court with federal question, if JAML is regarded
           as procedural, you follow the state procedural law.
       o BUT Lavender v. Kurn (fed law in state court) uses the federal standard for JAML (implies that its
           substantive law)
       o SCOTUS has never squarely grappled with if Lavender v. Kurn was right. Gray area.
                  Status of JAML (procedural v. substantive) is not entirely resolved

 Bottom Line:
                (1) When you are assessing JAML and whether JAML is appropriate, you cannot do so without
                identifying who has the burden of production, and the party who has burden of production
                must present evidence / cannot sit by silently on the elements on which the burden of production
                belong to him.

           o    (2) Don’t confuse simply stating the claim or even stating facts (making factual assertions) with
                putting in evidence for those factual assertions.
                      Stating facts/claim belongs to pleading phase.
                      Putting in the kind of evidence the jury could use is what you are asked for at the
                         burden of production phase.

 Appellate Review
 Rule 52: Applies when judge(s) are the finder of fact and law
                      Waiver of right to jury trial
                      Statutory right to judge
                      Appellate review
         o §51(a)(1): Judge must state findings of fact and conclusions of law separately
                     o Has to explain all findings, which makes judge’s decision more transparent than jury trial
         o §52(a)(6): Court of Appeals can review facts and law
             o Trial courts facts can only be amended if clearly erroneous
             o When judge is finder of fact, appellate court can re-open record and supplement/amend facts.

 Appellate Review:
 To obtain reversal on appeal, the error to which you are objecting and your objection must appear in the record

 Res Judicata
 -Claim preclusion : Claims can only be litigated once - Can’t bring a second claim against the same D that arises
 from the same T&O
 -FRCP8(c) defense: Must be pled or deemed waived
 -Judge-made doctrine (for Erie purposes)

 Four prerequisites for Res Judicata:
        1. Same Parties (or in privity)
        2. Any claim that was raised or could have been raised but wasn't
                  Arises from same T&O
                  §1367: Diversity (can add other claims once amount in controversy requirement met – claims’
                      amounts aggregate) / Federal claim (can tack on state claims)
        3. Final judgment must have been rendered – SCOTUS rejects or Time to appeal has passed
        4. Judgment on the merits
                  NOT: Dismissal for procedural purposes
                  Full trial with judgment, Summary Judgment, FRCP 12(b)(6) dismissal, Validated Settlement,
                      Judgment as a matter of law
                  Default (subject to availability of collateral attack if basis of attack is lack of PJ)
                  Voluntary dismissals (FRCP 41) usually given RJ effect the second time around – Judge has
                      discretion to say whether initial dismissal is on the merits or not

 Policy behind res judicata
             1. Judicial efficiency - Benefits of consolidation and resolving an issue all at once
             2. Value of repose - Gives parties security in a judgment w/o fear of endless series of attacks
             3. Fairness – Everyone gets one chance to be heard

Fetter v Beale
Facts – P brought an action for battery and won. Part of his skull then fell out so he brought a second suit
for further injury resulting for the same battery.
Holding -- The second action is barred.
      Jury in the first action considered the nature of the wound and gave damages for all that had been
          done to P. The recovery in the first action covers recovery of the second as well
      Res judicata: The issue has already been litigated/damages allocated/that’s the end of it
-Merger: New case merged into Plaintiffs previous victory so case can’t be re-brought
-Bar: Defendant can use previous judgment to bar bringing a new case on same issue

-Now: New developments can be brought as a new case

 Ticor Title Ins. Co. v Brown

 -Classes certified under FRCP 23(b)(1) and (b)(2), which do not allow opt out. Opt out right would exist if
 action was certified under Rule 23(b)(3), which permits opt out.

 -SCOTUS: Even if the previous case wrongly determined which class of Rule 23(b) this action fell under,
 the court's determination was conclusive.
       Re-opening/re-deciding FRCP23 application not allowed under res judicata, so the ability to use
          FRCP as a means of imposing opt-out requirement for settlement is no longer available.

Rush v. City of Maple Heights – CE, RJ, and SD in one case
-You can’t split claim for personal injury and property damage for same T&O

Facts: Motorcycle accident in which P was injured. First action for property damage P won. In second action (for
personal injury) trial court awarded damages and held that issue of negligence was barred by CE by first lawsuit
Holding: Reversed - Second Action barred altogether by Res Judicata

Reasoning: Majority rule is that to avoid multiple litigations/expense, damages from a single tort must be sued for
in one action
-Vasu case (precedent) - Tort claims can be split for damages to person and property + insurer can bring a separate
claim for damages it had to pay insurance for
      Stare Decisis: Binds a court to its prior precedent/a lower court to the precedent of the court that reviews it
      To avoid SD, court says first reason was dicta (not obligated to follow) and second reason was holding

Jones v. Morris Plan Bank –RJ applies to claims that could have been brought but weren’t

Facts: Bank sued P for two past due car payments. Contract had acceleration clause, (accelerated all payments if a
single loan payment was missed). P defaulted again, D re-possessed the car. P brought action for conversion of the
car, alleging RJ on issue of payment.
Holding: RJ applies.
Reasoning: After first default, all payments became due. By only suing for two D essentially waived claim for rest
of payments and so the title to the car passed to P
      Claims were brought or could have been brought at time of the first lawsuit = same T&O (same contract)
          so RJ applies

Federated Department Stores v. Moitie – For systematic justice, RJ should be strictly applied

Facts: First action (7 Ps) dismissed for not meeting antitrust law requirements. 5Ps appealed. Moite/Brown instead
brought second case for same claim in state court, it was dismissed for RJ and MB appealed.
     SCOTUS decided another case which changed how antitrust laws were interpreted that allowed the initial
         case to fall under antitrust laws. The first case was still pending, so it was remanded to be re-considered
         under new law. 9th Circuit made exception to RJ for Moite/Brown case.

Holding: Reversed
SCOTUS: Strictly applies RJ
    Judgments can’t be re-opened; doesn’t matter if they were wrong
    Justice is finality/an end to litigation / people taking responsibility for their actions (decision not to appeal)
    Even-handed application of a doctrine is what does justice, not a case-by-case assessment

Collateral Estoppel
-Precludes: Issues of fact / issue of fact applied to law
      Issues of abstract principles of law affected by stare decisis (precedent)
-Same issue, but new T&O
      Not estopped from litigating an issue when a new legal standard applies to the issue
              o Intervening change in law within the state
              o Litigating in a different state/circuit with a different/more demanding standard

o Same or different parties
       At least one party must be common to both actions
       CE can only be used against a party that was present in the prior action (due process)
o Actually litigated in first action
       Issue that was expressly brought up and was in dispute/the court grappled with and decided one way or
        another - can’t be a fact that was conceded
                      o Unclear if the issue has to be decided explicitly or implicitly
o Necessarily decided - Arises when jury is the fact finder
       If subsidiary issue has to have been decided a certain way to have reached the verdict, we know how the
        subsidiary issue was decided based on the verdict even if the decision on the subsidiary issue is not
       If can’t determine, none of the claims get CE
o Necessary to the judgment - Arises when judge is factfinder
       No CE when judge provides alternative grounds for the decision
       Reasoning: When judge gives alternative sufficient grounds for the judgment, judgment likely to be
               Judgment is unlikely to be appealed, as an appeal must overturn both grounds to win
               Reduces possibility of correcting errors

Mutual CE was accepted by courts before non-mutual (and defensive non-mutual accepted before offensive non-

Defensive- Mutual
     Used to repel liability (used by D against P)
     E.g. After court rules that D has an easement in T&O 1, in T&O 2 D can argue that he has an easement and
        P is estopped from denying the easement because of CE

     E.g. After court rules that D does not have an easement in T&O 1, in T&O 2, D is estopped from raising
        the issue of easement as a defense

Defensive Non-Mutual
     CE used as a shield by a new D against a veteran of a prior action
     E.g. Court decides that A does not own the land in T&O 1. When A sues C for trespass in T&O 2, C can
        defend with CE as court already decided that A does not own the land (A already had opportunity to litigate
        the issue of ownership)

Offensive Non-Mutual -Discretionary
     CE used as a sword by a new P against a veteran of a prior action
     E.g. Shareholder X sues company D for securities fraud. Court agrees that there was fraud. Other parties
        sue company D for securities fraud. D denies fraud, other parties argue that D is estopped from denying
        fraud by CD.
-Concerns with offensive non-mutual CE:
     Sideline sitting: Encourages people to wait and see what happens in initial case before suing rather than
        consolidating lawsuits - Encourages waste/exploitation

         Asymmetry: D can be punished multiple times by multiple lawsuits - cannot use victory in Case 1 against a
          new party in a new lawsuit, but new parties can use D’s defeat in Case 1 against D in new lawsuits
         Blindsiding: P chooses forum, which could disadvantage D. D could litigate passively unaware that
          piranhas are waiting to re-litigate if case is found for P

Cromwell v. County of SAC – To be precluded by CE, the issue must have been actually litigated in the 1 st action

Facts: First Case: Coupons for interest (can be bought/sold) on bonds. Court didn’t allow Smith to collect:
    1. Bonds fraudulently issued
    2. To get value of fraudulent bonds, must have purchased bonds for value before they matured
    3. Particular coupons in this case weren’t acquired for value
Second Case: Different coupons but from same bonds
    1. Estoppel on issue of bonds being fraudulently issued (same issue as Case 1/already decided)
    2. Law to get value of fraudulent bonds remains the same (Stare Decisis)
    3. Particular coupons- No estoppel. These are new coupons and their validity (whether they were purchased
         for value) hasn’t yet been actually litigated

Russell v. Place – To be precluded by CE, must be able to determine specific issue judgment was rendered on

Facts: P accused D of patent infringement, D raised several defenses to show patent invalid. P wins Case 1 (can tell
that it was necessarily decided that patent was valid/ infringed). Second case for infringement of same patent by
same parties.
Holding: CE doesn’t apply
Reasoning: Court: Patent has two sections - Case 1 could have been decided with either of the two sections or both
being infringed (don’t know which)
      Need to know the precise question that was raised and determined. If can’t tell what issue judgment was
          based on, all the issues are open to new contention

Bernhard v. Bank of America (CA Supreme Court) – Mutuality is not required for CE

Facts: First action: Probate hearing brought by Bernhard over whether money transferred to Cook was his or the
estates – Court said money was Cooks.
      Second action: Bernhard become administrator of estate and sued new party BofA (bank where Cooks
          money held). BofA was not a party in the first action (Bernhard was).

Traynor Holding: Allows non-mutual CE
(1) No due process problem because party against whom CE is being asserted was present in prior action and had a
full and fair opportunity to litigate the issue
(2) Non-mutual CE already used in master-servant situations (can’t sue servant and then master)
(3) Wastes judicial resources to allow people to re-litigate the same issue more than once
(4) Unfair if contradictory results occur from multiple litigations of the same issue (and diminishes respect for/
integrity of justice system)

  Blonder-Tongue Labs v. University of Illinois – SCOTUS allows defensive non-mutual CE

  Facts: Univ owned patent for antenna. First case: Univ sued D, D said patent invalid and won. Second case:
  Same action against a different alleged infringer (new D)
  Holding: SCOTUS recognized defensive non-mutual CE
       Requiring mutuality: Inefficient, wasteful, makes court system seem like a gaming table (you can keep
          trying your luck until you win)
       Affirms that CE cannot apply to a party not present in the first action (due process)
       Goes into specifics of patents: patent suits very expensive to litigate (non-mutuality would save courts $)
       Element of discretion: Court can determine if first case was truly fair (this concept has been eroded)

Parklane Hosiery v. Shore - Offensive CE is not absolutely barred but no automatic right either- matter of
discretion / case by case determination

Facts: SEC sued D for false/misleading merger statement and won. Shareholders filed action for same issue
(offensive CE – new P using adverse determination in prior action against veteran D).

Holding: Offensive CE allowed in this case as SEC wouldn’t allow Ps to join the first lawsuit
-Problems with Offensive CE:
    o Doesn’t promote judicial efficiency (promotes wait and see/sideline sitting behavior)
    o Abuse: Multiple Ps can sue D for same issue in different lawsuits and D can’t use defensive CE
         since Ps are all different
    o Unfairness: P chooses forum, D may be in bad position to litigate
-Factors to look at when determining if Offensive CE allowed
    o Was case fully and fairly litigated – procedural obstacles/fairness of the forum
    o Was there a lot at stake in first action/did D know of potential liability from other PS
    o Could P have joined the prior action
    o Prior inconsistent judgments (D won in a prior case)

Martin v. Wilks - No barr to someone who was a stranger to the first action bringing a collateral attack

Facts: First case: Black firefighters discrimination lawsuit- settled by consent decree which was turned into
a judgment (City had to meet hiring/promotion goals for blacks). As a result, white firefighters not
promoted (no role in first action). Second case: Whites challenged terms of consent decree. City said
precluded from suing by CE

Holding: Lawsuit not barred by CE
SCOTUS: Party not bound by litigation to which they were not a party
   o Mandatory intervention/joinder of Ps not required
   o Party that chooses not to intervene/join, doesn’t waive their right to bring a separate lawsuit
   o FRCP 19 puts burden on parties in original action to join third parties if without third party issue
       before court cannot be further resolved
           o Burden on parties already present to join necessary parties, burden not on third parties

-Note: Money judgments remedies don’t affect other parties (unless amount available is limited); Decree
judgments can affect third parties

Antrim Mining v. Davis – Consent decrees can only bind parties to the decree

Facts: First Case: Consent decree between Antrim and Environmental NGO had a zipper clause saying the
decree binded all parties and all potential parties and foreclosed all future claims.
    o Second Case: D (PA Environmental Secretary) sent Antrim compliance orders to clean-up the
         same pollutants mentioned in the consent decree.

Holding: D not bound by the consent decree
   o Parties to an action can’t decree that the rights of non-present parties are foreclosed
   o Zipper clauses are null and void
   o Non-parties can never be bound

 Collateral Attack
 Attempt to undermine/re-open/void a judgment after it has become final through a second, separate proceeding
     o Distinguished from direct attack (attacking judgment during appellate process)

         §1738: State to Fed.
              o Acts, records and judicial proceedings shall have the same full faith/credit in every court within
                   the US as they have by law or usage in the courts of such State from which they are taken
                         Federal courts must respect state court judgments/ treat as final
         Article VI: Fed to State (Supremacy Clause)
              o The Constitution and the Laws of the US shall be the supreme law of the land; and judges/laws in
                   every state shall be bound thereby
                         State court must respect decisions of federal court/treat as final
         Article IV: State to State
              o Full faith/credit shall be given in each State to the Acts, Records, and judicial proceedings of every
                   other state
                         State court must respect decisions of other state courts/treat as final

 When is a judgment final?
             i.  The highest court in the jurisdiction comes to a decision
            ii.  You don't take the case all the way, but you run out of time to appeal

 -Exception to finality rule (collateral attacked allowed if):
      First Restatement of Judgments: (1) Was lack of SMJ clear (2) Was or was not SMJ actually litigated
      Second Restatement of Judgments: Was lack of SMJ clear

Des Moines Navigation & Railroad Co. v. Iowa Homestead Co. – Collateral attack not allowed on final
judgments, even if they were incorrectly decided or didn’t have SMJ.

Facts: First case: P sued D to recover state taxes in federal court on diversity. D won. Neither side
objected to jurisdiction. Second Case: P sued D in IA state court for same taxes, claims no SMJ in first
Holding: Prior judgment was a bar to second action (Finality > Correct SMJ)
Reasoning: First case didn’t have SMJ but SMJ issue was never addressed in the appellate process (which
was the correct time to address/correct). As Case 1 was heard/decided on its merits, Case 2 is barred from
being reheard by res judicata.

Joinder of Claims
Rule 18
     A party may join as many claims as it has against another party (related or unrelated, federal or state law)
           Claims conditional on satisfying jurisdictional requirements
           Very permissive
     Must join related claims from same T&O or its waived under res judicata

Rule 13 – Counterclaim and Crossclaims
-Counterclaim is a sword, not a shield, for the D
     (a) Compulsory counterclaim
             o (1) Must bring all of the counterclaims you have at once
                       (A) Claims that arise from the same transaction and occurrence (T&O)
                                Codification of res judicata – must be joined or deemed waived
             o (2) Exceptions
                       (A) Need not include a claim if, when the action was commenced, it was part of another
                          pending action
     (b) Permissive counterclaim
             o May assert any claim against an opposing party not arising out of the same T&O
     (g) Crossclaim Against a Coparty
                       A pleading may assert crossclaims against a coparty that arise out of same T&O or
                          relates to property that is the subject matter of the action.
                       May assert that coparty is liable for any/all of the claim
                       Must relate to the same T&O (unrelated cross-claims not allowed)
                       Permissive: No crossclaim is ever waived for failure to assert it

Joinder of Parties

Rule 14: Third-Party Practice
14(a): When a Defendant may bring in a third party
-There can be no rule 14 joinder if court does not have jurisdiction over those parties
      (1) D may bring in third-party defendant who may be liable to him for some or all of P’s claims
      (2) Impleaded party (Third Party Defendant) may assert counterclaims/cross-claims, join all claims arising
         out of same T&O, and implead new D’s
              o B bringing in C is permissive
              o Once C comes in, there is mandatory stuff
                        C must assert defenses / counter-claims/cross-claims against B or deemed waived
                        C may assert defenses, counter-claims and cross-claims against A
      (3) Original P may assert claims directly against impleaded third-party defendant that arise out of the same
         T&O as the original claim
                        res judicata does not apply if P doesn’t assert an unrelated claim against a third party
        (4) Any party may more to strike, sever, or try the third-party claim separately
      (5) Third-party defendant may use FRCP 14 against a nonparty who is/may be liable to them for all or part
         of the claim against them
(b) P may implead a third party only if D asserts a counterclaim and 14(a) would allow the D to bring in the third
party under the same circumstances

 Rule 19: Required Joinder of Parties
 19(a): Persons Required to be Joined if feasible
      Requires ―necessary‖ parties to be joined if it will not deprive the court of SMJ.
      Parties are necessary when, in their absence:
               Complete relief not possible
               Protection of that party’s interest would be impaired
               An existing party would incur inconsistent obligations
 19(b): When joinder is not feasible
      If joinder of a ―necessary‖ party is not possible: can proceed without the party OR dismiss the whole case if
          party is indispensable (dismissal is without prejudice)

Temple v Synthes Corp.
Facts - P (MS resident) underwent surgery in LA hospital/doctor. Device in his spine, made by PA
company, broke off inside his back. P filed suit against manufacturer in District Court and against doctor/
hospital in LA state court. Synthes filed motion to dismiss P's federal suit for failure to join necessary
parties (doctor/hospital) pursuant to Rule 19.
Holding - Joinder of joint tortfeasors is not compulsory under Rule 19 (Doc/hospital not necessary/required
-Even if FRCP 19 did apply, Court should consider19(a) and if parties mandatory first, then consider 19(b)
and if the parties be joined (only go to 19(b) if there’s an obstacle to joinder)
      Doc/Hospital would be 19(a) parties (required to be joined and joinder is feasible) not 19(b)
               o Joinder was feasible – no PJ or SMJ issues would have been created by joinder
-Synthes should have joined doc/hospital under Rule 14 (third party defendant)

 Rule 20: Permissive Joinder of Parties
 - New parties must meet jurisdictional requirements + Parties have to relate to same T&O and have a question of
 law/fact in common
 -Always permissive (don’t have to join claims against multiple defendants, can split claims and litigate separately)
      (a)(1) Multiple P’s can join in one action if:
                They assert right to relief arising out of the same T&O AND a question of law/fact common to all
                   P’s will arise in the action
          (a)(2) Multiple parties can join as Ds if:
                They assert right to relief arising out of the same T&O AND a question of law/fact common to all
                   D’s will arise in the action
      (b): Protective measures: Judge has discretion over joinder

 Rule 21: Misjoinder
      Misjoinder is not grounds for dismissal. The court can restructure the lawsuit on motion or on its own.

Rule 23 - Class Action
Settlements/judgments that result in monetary relief have a limited amount of relief so it’s better if all claimants are
in a single suit so that the limited funds can get distributed
 (a) Prerequisites
      Numerosity -- Class is so numerous that joinder of all members is impracticable
      Commonality- Class members must have elements of legal issues/facts in common
      Typicality – Claims and defenses of representatives are typical of the class.
      Representative parties will fairly/adequately protect the interests of the class
 (b) Types of Class Actions
      (1/2) No opt-outs:
               o Usually relief is an injunction (Give relief to one – then would give relief to all- so all parties
                    should be involved)
                               Ex: Prisoners suing for heat in a prison
      (3) Opt-outs:
               o     Usually relief is monetary (which is fully divisible)

-§1332(d): Governs SMJ over class actions
     Minimum Diversity Requirement: Just representative has to be diverse with the company
     Amount in Controversy: $5 million – Claims of individual class members are aggregated (d2/d6)

  Ticor Title Ins. Co. v Brown – Class actions certified under Rule23(b)(3) permit opt outs, while actions
  certified under Rule 23(b)(1) and (2) do not

  Facts – Antitrust federal class action suit is being brought for a second time by members of the class who
  wanted to opt out of the first action (where there was injunctive and monetary relief) but were prevented based
  on District Courts reading of FRCP 23. P argued that not giving members the right to opt out violated their
  Constitutional right to due process.

  Holding– SCOTUS declines to decide

  Constitutional question does not matter if class members have a right to opt out under the FRCP 23(Statutory
  question could obviate need to decide constitutional question )
                Opt out right would exist if action was certified under Rule 23(b)(3), which permits opt out
                            But class was certified under Rule 23(b)(1) and (b)(2), which does not allow opt out
                             and re-opening/re-deciding FRCP 23 application not open to SCOTUS under res
                Two options for the Court
                        i.   Lack of opt out is decreed by FRCP – could result in a mistake
                                   Would approve action that neither Court nor Congress would think
                       ii.   Lack of opt outs not decreed by FRCP
                                   May announce a constitutional rule that is good for no other federal class
                                      action, thus hypothetical

  O’Connor Dissent: Court should have decided issue presented
      Problem presented in case is ongoing: Courts are confused about appropriate section of FRCP23 for
        certifying class actions with injunctive and monetary damages
      Problem affects many people: Under Ninth Circuit ruling, class members who don’t like results in
        b1/b2 certifications can start lawsuits over

 Rule 24: Intervention
 -Permissive: never required to join lawsuit or lose rights; may come in OR may stay out and bring a separate suit
         (a) Intervention of Right – Court must permit anyone to intervene:
                When a federal statute confers an unconditional right to intervene
                When the applicant claims an interest in the subject matter and the interest might be impaired if
                   they’re not allowed in
                                  Intervening party must have interest in the property/transaction at issue
                                  Interest must be in danger of impairment
                                  Other parties must be unlikely to represent your interests
      (b) Permissive Intervention - Court may permit anyone to intervene if:
                The intervening party has a claim or defense that shares a common question of law or fact with
                   the main action
                There is a federal statute that gives a conditional right to intervene

 Rule 41: Voluntary and Involuntary Dismissal
     o (a) – Voluntary - Sought by the party initiating the lawsuit
                P may abandon the lawsuit any time before the other party has filed an answer or a motion, or by
                   permission of the parties at any time
                       Without prejudice for first time, otherwise with prejudice
                Wanting to file in another place because the statute of limitations has run is a perfectly good
                   reason for using voluntary dismissal
     o (b) - Involuntary
                2 categories:
                       Failure to prosecute - not taking the natural, normal steps to move the case forward
                               o Sometimes a mere delay or neglect/delay by a laaywer is sufficient
                       Failure to comply with an order or ruling of the court
                Operates as an adjudication on the merits (with prejudice) except:
                       Lack of jurisdiction
                               o Determined to be anything to do with jurisdiction (service, etc.)
                         Lack of venue
                       Failure to join a necessary party under 19
              Courts have a lot of discretion to determine what is failure to prosecute.

McCants v. Ford
Facts: P sued D for injuries in AL. After one year of discovery, D raised AL statute of limitations based on discovery. P
asked court to voluntarily dismiss case under FRCP 42 (a)(2) so she could re-file in a state w/ longer statute of limitations
Holding: Granted. Dismissals without prejudice to re-file are freely granted except in cases of abuse.
          o Trying to get a longer statute of limitations is not an abuse.
          o Court has wide discretion to accommodate cases like this

 Messenger v. United States: Delay alone can be interpreted by a judge as a failure to prosecute

 Link v. Wabashed Railroad Co: Lawyer’s failure to attend a pretrial conference can be interpreted by a judge as a
 failure to prosecute

-Goal: Want the case to turn on legal issues, don’t want one side to win because they surprised the other side or had
better access to information
      Way of winnowing down case to actually disputed issues
      Fertile ground for harassment/strategic behavior

Rule 26(a) Overview of Required Disclosures
     What can be discovered
     If someone is going to be at trial, the other side can get everything about them
     Don't want any surprises at trial
Rule 26(a)(1): Initial Disclosures
     all IDs of individuals likely to have discoverable information
     all documents to be used at trial
     computation of damages claimed
     Insurance agreements
     Anything to be presented at trial
Rule 26(a)(2): Disclosure of Expert Testimony
     ID, qualifications of planned experts and written reports of such experts
Rule 26(a)(3): Pretrial Disclosures
     ID of witnesses party expects to be present
     Evidence to be offered
Rule 26(b)(1): Scope of Discovery
     Discovery allowed for any non-privileged matter relevant to a claim or defense
     Not limited to admissible evidence, but has to be calculated to lead to admissible evidence
     If show good cause, can discover any material relevant to the subject matter
Rule 26(b)(2): Limitations
     (A): Court can alter limit on number of deposition/interrogatories
     (B): Court’s discretion based on benefits/burden extends to electronically stored information
     (C): Court may limit discovery if:
                  Discovery duplicative or could be obtained from some other source that is more convenient,
                      less burdensome or less expensive
                  Party seeking discovery had ample opportunities to obtain the information
                  Benefit/burden calculus: Burden/expense of proposed discovery outweighs its likely benefit
                           o Amount in controversy
                           o Parties’ resources
                           o Importance of the issue at stake to the overall case
                           o Importance of the proposed discovery to resolving the issues
FRCP 26(b)(3): Trial Preparation Materials not Discoverable
     (a) Materials prepared in anticipation of litigation/for trial (prepared by or for party and their close
        associates) not discoverable
             o Things produced in ordinary course of business not protected
             o Can be obtained if other side shows has substantial need/cannot without undue hardship obtain by
                  other means
                        e.g. a photo
     (b) If material includes conclusions/opinion regarding the litigation, document must be protected – absolute
             o Potential for redaction/selective omission for the documents
FRCP 26(b)(4): Experts
     (A) Experts whose opinions may be presented at trial may be deposed
     (B) Expert who has been employed in anticipation of litigation and who is not expected to be called as a
        witness at trial may not be reached by interrogatories or depositions

               o   (ii) May be accessed if party can show exceptional circumstances so that they cannot obtain
                   facts/opinions on the same subject by other means
      (C) Party seeking to discover information from the other side’s expert must pay expert/ if can get to non-
         testifying expert, must pay part of other side’s fee for that expert
 FRCP 26(b)(5): Claiming Privilege
      Privileged information can be maintained if the party:
              o (i) Expressly makes the claim
              o (ii) Describes the nature of the undisclosed things
 Rule 26(c): Protective Orders: Courts can limit/deny discovery through protective devices
      Codifies common law standard that discovery shouldn’t be used to inflict undue burden on the other side.
      Allows judge to compare hardship to the party against whom discovery is sought with the hardship to the
         party seeking discovery if discovery is denied
      Considers nature of hardship and magnitude, giving more weight to interests that have a social value than
         purely private interests
 Rule 26(d): Sequence and timing of discovery
      Methods of discovery can be used in any sequence UNLESS court orders otherwise for parties/witnesses
         convenience and in the interests of justice
 Rule 26(e): Duty to Update
      If the party who has info learns of new info or determines that already disclosed info is incomplete they
         have a duty to update
      Ongoing / comprehensive duty
      Scheduling the pre-trial conference for discovery

Marrese v American Academy of Orthopedic Surgeons
   – Discovery must balance the interests of P and D
   – D’s interests would be better protected with mechanisms of 26(c/d): In camera review, redaction,
       bi-furcated sequence of discovery

Facts: Two orthopedic surgeons (P) sued D Academy for refusing them membership. P’s wanted all of
D’s records for how they chose members (to see if they’re denying members for anti-trust reasons). Lower
court restricted discovery: Attorneys could screen files and turn any pertinent files over to clients

Judge had options under 26(c):
    1. Judge could have examined the files himself, in camera, to determine whether info is necessary
    2. D could have redacted the names and any identifiable information
    3. Limited discovery to the two plaintiffs’ files
    4. Non-problematic discovery should occur first, then confidential discovery could occur if needed
        (not useful in this case as entire case resolves around confidential files)

Posner Holding
-Need to balance needs of P and D. D needs files for case. For academy, discovery will destroy candor in
reviewing members (falls short of Constitutional principle of freedom of association, but related to it)
-Because the district judge had better options under both 26(c) and (d) to balance P and D's interests in
discovery and because there are signs of predatory discovery in this case, the district judge's order was
-Elements of Coercive/Predatory Discovery (P’s brought fed suit after state suit dismissed)-- when
discovery is sought not to help party prevail on the merits but to coerce the opponent to settle regardless of
the merits rather than produce the documents

In camera --was done at the state level and determined the contents were relevant and disclosure was
Redacted files -- D had this option and refused it, on multiple occasions

Seattle Times Co. v Rhinehart
- Court held that discovery can only be used for discovery purposes. Can’t be published.

Rhinehart (P religious group leader), sued D for defamation and invasion of privacy. Pursuant to state
discovery rules modeled on FRCP, the trial court ordered P to identify donors/amounts contributed and to
produce a list of its members. But, the court also issued a protective order (under 26(c)) prohibiting D from
using the information for anything but the case. Both parties appealed.
Discovery is liberal, and thus, there need to be protective measures in place
               26(c) does this by allowing protective orders
               Court has tremendous latitude in restricted discovery/saying how it can be used
Where a protective order is entered in the showing of good cause as required by Rule 26(c), is limited to
the context of pretrial discovery, and does not restrict the dissemination of the information if gained from
other sources, it does not offend the First Amendment

 Discovery Mechanics
 FRCP 30: Oral Depositions – Parties and non-parties
       (a) A party may question any person (parties, third parties, witnesses) under oath
                Parties can be sanctioned if they refuse to be deposed, BUT non-parties cannot be sanctioned for
                   refusing to deposed
       (a)(2)(A) -- Ten depositions are allowed per party unless the court agrees to do otherwise or a local rule
          changes that number
          (b): Formal Requirements
                (2)To gets documents, can have other party bring. For a third party, use subpoena duces tecum
                (3) Can be video or audio recorded or transcribed
                (6) Deposition request to a corporation: Corporation must identify a person within corp. to answer
       (d) – A deposition is limited to one day of seven hours but additional time may be granted
 -Advantages to depositions: Element of surprise (little time to phrase answer / consult with consul) / interviewer can
 follow up on answers, / allow observation of witnesses (demeanor)

 FRCP 31: Deposition by Written Questions
     Authorizes the taking of depositions by written questions from parties and nonparties
            These are rarely used -- usually for foreign deponents (Rule 45 -- you go to the witness, they don't
               go to you)

 Rule 32: Using Depositions in Court Proceedings: For depositions to be introduce in court, you need a verbal

 Rule 33 -- Interrogatories (Only to Parties)
 - Written interrogatories are sent to the other party. The series of questions must be answered under oath within a
 specified time
      Can only be directed at parties
      Must be answered fully - duty of reasonable investigation
      (a) Limit of 25 (Court can grant more)
      (d) : Parties can answer by making their business records available in lieu of directly answering the
 -Benefits of Interrogatories: Duty to investigate / cheaper than depositions

 Rule 34: Discovery and Production of Property – Parties and non-parties

        (a) Party has the right to compel an opponent to produce documents and other tangible things for inspection
         and copying, and to allow the party entry to land or property in order to inspect, measure, survey,
         photograph, test or sample the property
                        Parties refusing to cooperate can result in sanctions
                        Third parties can refuse, usually must subpoena
                        Many attorneys combine 33 interrogatories with a 34 request to produce documents
        (b) Procedure
               Prevents litigant from producing a large number of unsorted or unrelated documents
               When producing documents, duty to keep disclosed recordings in the same order they were

Rule 35: Physical and Mental Examinations
     Court order required for medical examinations -Mental/physical issue has to be centrally involved in the

Rule 36 --Requests for Admission
     Authorizes a party to serve on another party written requests to admit the truth of certain matters of fact or
        of the application of law to fact, or the genuineness of document or other evidence that may be used at trial
              Requests constitute conclusive evidence and cannot be contradicted at trial
     Another opportunity for parties to try to agree on certain facts

Any information protected under Federal Rules of Evidence 501
1. Work Product Rule
    Applies to materials prepared by/for a party in preparation/anticipation of trial/litigation
    Two parts
           i.    Qualified – Can sometimes obtain these documents if they are necessary/essential to their case
                 and can’t get the information in any other way
                       Need showing of strict necessity
          ii.    Absolute (can never be revealed) – Can never obtain that thing that discloses certain types of
                 mental processes (thoughts, strategies, analysis)
    Relates to things: Nothing stopping you for interviewing/deposing the person who prepared the information
        and asking what is in the document you can't see
           o     Difficult: Need to know what to ask / Not as convenient as seeing the product itself
2. Attorney-Client Privilege
               Matters disclosed to attorneys in the course of receiving legal advice/preparing a case
                       No privilege if 3d party is present or if the information is later disclosed to a 3d party
               Conversation is protected, but not attorney’s knowledge of the facts of what occurred
               The system really resists the deposing of/getting information from attorneys
                       If attorney learned information in course of investigating a case (i.e. by interviewing third
                           parties), attorney could technically be deposed forth that info
               Doesn’t mean you can’t get info by deposing the client
3. Other privileges
    Spousal Privilege
              o Spouse can't be forced to testify against the other
              o One spouse can’t silence the other
    Doctor/Patient
    Priest/Penitent
    Self-Incrimination
    Supreme Court has resisted expanding privilege (No privilege for journalists, accountants)

 Rule 26(b)(3)
 -Anything that is prepared by or for the other party in preparation/ anticipation of litigation is protected
               Qualified – Can get material if you make the showing of necessity
 -Anticipation of litigation:
     1. Kearse: Dissent Rule (5th Circuit)
           Doesn’t need to be a lawsuit, but event written about needs to be something that has already happened
     1. Addleman Rule (2nd Circuit Rule)
           Even if a primary purpose of a document is business-planning, if one purpose was assessing possible
              legal consequences of the action, then it can come under the WPR
     3. 5th Circuit Rule
           Documents must primarily or exclusively be prepared in anticipation of litigation (but doesn’t need to
              be in-process lawsuit)

Hickman v Taylor
     – Work Product Rule: Absolute (always protects attorney’s thoughts, opinions and strategies) and
          qualified (protected work unless necessity is shown)
Tug boat sank. D (tug boat owners), in anticipation of a lawsuit, hired a lawyer who took depositions of the
surviving crew members and other witnesses. When one survivor of the dead crew members brought suit,
his lawyers (P) filed interrogatories requesting all of the written / oral statements acquired by D’s lawyer.
An attorney is protected by the work product rule and is thus not required under Rule 26 to produce
written statements concerning the case that they prepared, unless some necessity can be shown.
      Materials that reveal analysis/thoughts/legal strategy, can never be revealed
      Here, no necessity for any of the information to be revealed (P’s lawyer can interview witnesses)
          so information does not have to be provided
Two concerns:
     Chill– Lawyers will stop recording their thoughts, which inhibits their ability to do their job
     Exploitation -- One side can wait around and then just get other side’s research/analysis (and not have
     to pay for that work)

UpJohn Co. v United States
     – All corporate employees protected by attorney-client privilege
     – Work product rule applies to work created before litigation begins
After improper payments to foreign officials discovered, Upjohn’s General Counsel sends questionnaires to
managers to find more information then makes an internal report. IRS issues summons to get report
prepared by Upjohn on findings. P declined, saying the documents were protected by attorney-client
privilege and constituted the work product of attorneys.

-Attorney-client privilege:
     Extends to corporations as well as individuals / To rank & file employees (not just senior
              Restricting privilege to ―control group‖ would hobble attorneys job (need info from rank
                  and file and may need to provide advice to them as well)
     Protects exchange of information and the giving of legal advice
-D cannot claim necessity to overcome the privilege because the documents requested are further
protected under the "mental impressions" clause of 26(b)(3).
     Re-affirms that documents revealing attorney thoughts are absolutely protected but the underlying
        facts are not
     WPR applies pre-litigation/when investigating events that may results in litigation, not just for in-
        progress lawsuits

 Categories of experts (Rule 26(b)(4))
 1. Experts who will testify at trial
              o Full discovery allowed
 2. Non-testifying/consultative experts
      Deposition/ interrogatories allowed only if facts/opinions cannot be obtained in any other way
              o Must be retained or specially employed by the other party in preparation for litigation/trial
              o Must not be expected to be called as a witness
              o Must show necessity to get to depose expert
      Doesn’t reference documents (some courts say this means can never get a report prepared by non-testifying
         experts others say can get if you show necessity)
 3. Others – Not Protected
      Bystander/Observer experts – Someone not employed by either party, but happens to be around when
         situation occurs
      Employee experts – Long-standing employee or agent of the party (no specifically retained for litigation)
              o However: their product would be protected by WPR
      General experts – Have general knowledge about something pertinent/applicable to the litigation but no
         specific information about the particular events of the lawsuit
              o Can’t subpoena, have to pay to speak to

Perry v WS Darley & Co.
     – Names and reports of non-witness experts protected by Rule 26(b)(4)(B)
     – Court allows retroactive protection of experts (probably weren’t experts until after they
         investigated the accident) but Wax says they should have been treated as witnesses
P injured by fire-truck pump, sued D (who manufactured the pump). D wanted access to P’s expert who
was at the scene of the accident. P refused to disclose the names, said information constituted privileged
communication/work product. D argued that experts are potential witnesses who have knowledge of
relevant facts.
Rule 26(b)(4)(A) and (B)
               Parties are required to produce names and testimony of experts who WILL be called as
                   witnesses in trial under 26(b)(4)(A)
               BUT, are not required to do the same for experts who will NOT be called as witnesses in
                   trial under 26(b)(4)(B), UNLESS some special showing of necessity by adverse party
Because the experts will not be witnesses at trial + no showing of exceptional circumstances was made by
D, P is not required to provide their names or reports under rule 26(b)(4)(B).

 Experts Test – 26(b)(4)
 Are they an expert?
     1. If YES, are they testifying?
              a. If YES, no protection – 26(b)(4)(A)
              b. If NO, are they retained or specially employed by the party in anticipation of litigation?
                       i. If YES, can the opposing party make a showing of exceptional circumstances/necessity
                          (Rule 26(b)(4)(B))?
                                1. If YES, no protection
                                2. If NO, then protection
                      ii. If NO, then no protection unless they are a general expert under 45(c)(3)(B)(ii)
     2. If NO, then no protection

Rule 45 – Subpoenas

(a) In General
      (a)(1): Subpoena contents
      (a)(2): Strict limit on what court a subpoena can issue from
              o (A/B/C): Subpoena for attendance at a trial / deposition / production or inspection has to issue
                  from district court where trial to be held/deposition to be taken / production or inspection to be
(b) Service
      (b)(1): Have to pay witnesses
      (b)(2): Where subpoena can be served at any place:
              o (A) Within the district of the issuing court
              o (B) Outside the district but within 100 miles of the location of deposition/trial/production or
              o (C) Within state of the issuing court is allowed by a state statute or court rule
              o (D) The court has authorized as provided by federal statute
(c) Protecting a Person Subject to Subpoena
        (c)(1): Affirmative duty to minimize expense/duty on third party witnesses
      (c)(2): Third parties have right to object to commands to produce materials/permit inspection
      (c)(3)
              o (A) Quashing or modification required
                        If would require traveling over 100 miles from where the person lives or does business or
                           disclosing privileged material or imposes an undue burden
              o (B) Subpoena may be modified:
                        (i) Protection of a trade secret
                        (ii) General Expert: Requires disclosing an un-retained experts opinion or information
                           that does not describe specific occurrences in dispute (their general knowledge)
                                 Can’t subpoena (have to pay)
                        (iii) A third party has to travel more than 100 miles to attend trial
              o (C) Instead of quashing or modifying a subpoena, court can order appearance if serving party
                  would otherwise face undue hardship and agrees to compensate subpoenaed person
(d) Duties in Responding to a Subpoena
      Protects person producing Documents/Electronic Records
              o Documents can be produced in place where documents are held or are being sought


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