connecticut car accident lawyer by jolinmilioncherie

VIEWS: 6 PAGES: 64

									Goals:
        Move to more functionalism
        Avoid strategic behavior (forum shopping)
        SMJ jealously guarded
        Finding the right answer
        Judicial efficiency

    FRCP (enacted in late 1930s) applies to every case in the federal ct. not just for case arising out of federal law
    Conformity act (1872): Congress passed act to tell fed ct to conform their procedures to that of state where they
     are sitting.

I.   Federal Court System
         A. US district Ct (94)
                1. for diversity cases, based on state law
                             a) State Sup: mandatory authority.
                             b) Lower stat cts: persuasive authority
                2. federal law:
                             a) Sup Ct: mandatory
                             b) Ct of Appeals: mandatory in same circuit
         B. US Ct of Appeals (13)-Circuit Ct
                1. Reviews decision by US District Ct
                2. Created in late 1800s, to take pressure off Sup. Ct
         C. Sup Ct
                1. review decision made by fed courts
                2. review decisions made by state cts, on federal law (§1267)
                             a) by statute, Sup Ct technically has power to hear state law cases but will probably
                                 refuse, and defer to State Sup Ct. (example of Mandate v custom)
                             b) by practice, will only hear case from State Sup Ct
         D. limited SMJ: presume they cannot hear case unless there is positive grant of authority
         E. nothing in Art III that limits federal cts from reviewing stat court decision. However, in practice, only
              Sup Ct does this
II. State Court System (51, including DC)
         A. Names of ct varies with state
                1. State Circuit/Trial Ct
                2. State Ct of Appeals (some states don’t have a middle level)
                3. State Supreme Ct
                             a) Final word on state law of that state.
                             b) If no precedent at state Sup Ct level, look to lower state ct CL. If none, then look to
                                 ‘first cousin’
                             c) Has no power to review fed ct decision on state law
                4. ‘General Jurisd’: has power to hear any case that arises under law from ANY source (Iowa can
                     hear state based on Swiss lw)
         B. By statute, state ct owed no deference to federal ct, even on federal question. However, in practice,
              often take guidance from fed courts
         C. State ct only owes deference on federal question, to US Sup Ct
         D. Deference to prior decisions in the same level. Some states require mandatory adherence. It varies
III. Concurrent Juris
         A. Sup and district, both has jurisd over case (ie. In cases with ambassadors)
         B. both state and fed, of ct have juris over case.
         C. More than one states can have juris over case (ie, Dispute is over river)




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IV. Burden of proof
        A. Burden of pleading
              1. Party who has burden of pleading usually also has burden of persuasion, although not always the
                    case (like contr neg example)
        B. Burden of persuasion
              1. burden to convince triers of facts that what you say is true.
              2. If 50-50, who ever has burden of persuasion looses
              3. P: usually have burden of persuasion to prove cause of action
              4. D: usually has burden of persuasion on defenses
              5. for state cause of action, who has burden of persuasion is defined by state law
        C. Burden of production: threshold requirements: does party have enough evidence that if jury accepted
            all of them as true, party will win.
              1. standard use for SJ, JMAL
V. Level of Proof
        A. preponderance of evidence (civil), like a tie-breaker
              1. a little bit more than 50%.
              2. If there is 50-50, then D wins
        B. beyond reasonable doubt (criminal)
        C. clear and convincing evidence (defamation, fraud cases)

                                     Subject Matter Jurisdiction
I. the power of a ct to adjudicate a case. whether the ct has right to hear the TYPE of case
II. SMJ can NEVER be waived
III. Constitution/Statues
        A. Article III,
                1. Section 1: Created Supreme Ct, allowed Congress to ordain and establish only lower Courts
                    when desires
                2. Section 2: All Federal Cts shall have power over subject matters of Constitution, Treaties, US
                    Laws. (§1331 further defined later)
                           a) All Fed Cts has SMJ for
                                    (1) Ambassadors
                                    (2) Public Ministers and Consuls
                                    (3) Admiralty and maritime jurisdiction
                                    (4) Cases where US is a party
                                    (5) Cases between 2 or more states
                                    (6) Cases b/w State and citizen of another state
                                    (7) Cases b/w citizens of different state(§1332 further defined later)
                                    (8) Citizens of the same state claiming lands under grants of different states
                                    (9) State/citizen of that state and foreign states/citizens of foreign states
                           b) Sup Ct. has original jurisd
                                    (1) Over Ambassadors
                                    (2) Public ministers and consuls
                                    (3) State is a party
                           c) Sup Ct. has Appellate Jurisd over all other matters
        B. §1251: Original Jurisd of the Sup Ct
                1. original and exclusive jurisd: cases between 2 or more states
                2. original but not exclusive jurisd:
                           a) Ambassadors, public ministers, consuls
                           b) US and a state
                           c) State against citizens of another state
        C. §1257: Sup Ct may grant certiorari to State Sup Ct if about federal question
        D. §1346: Dist Ct has exclusive jurisd on claims againt US caused by negligence of gov’t employee
        E. § 1653 Amendment of pleadings may be made when required, in trial or appellate ct to show jurisd




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IV. Case
         A. Marbury v. Madison (Sup Ct, 1803)
               1.  Establishes the principle of judicial review – acts of Congress can be decided unconstitutional
                   by Court.
               2. P wants his commission, as promised by President Adams, from the secretary of State (who
                   works for President Jefferson)
               3. P want Sup Ct to issue writ of mandamus to force Madison to deliver commission (Jud. Act of
                   1798 gave Sup Ct. right to issue write of mandamus)
               4. Sup Ct: Chief Justice Marshall
                          a) Does P has right to commission: yes
                          b) What is the remedy?” writ of mamandus
                          c) Is remedy something Sup Ct has power? No
                                   (1) Art III, section 2: states that Sup Ct. has jurisd. Over (…), and t/f also
                                        implied that Sup Ct has jurisd over NOTHING ELSE. It has appellate jurisd
                                        over other things. Negative pregnant
                          d) Mandamus is t/f unconst.
         B.   Capron v. Van Noorden (Sup Ct, 1804)
               1. P sued under state law (trepass on the case) and won in Fed District Ct
               2. P’s claim never mentioned what state P resides in
               3. P appeal to Sup Ct, on grounds that Fed. District Ct should not have even heard the case and t/f
                   the case should be dismissed (there by allowing P another chance at trial)
               4. Sup Ct: P. a case will be dismissed for lack of SMJ even it has be trialed and P made the
                   mistake of bringing case to federal ct
               5. Case later codified by
                          a) Rule 12(h)(3): by either suggestion of parties or sua sponte, ct may dismiss for lack
                               of SMJ
                          b) Rule 8(a): P’s complaint must state Ct’s juris

                                                     Diversity
I.  Constitution/Statues
        A. Article III, Section 2: Gives federal courts jurisdiction over “controversies between the citizens of
             different states.”
        B. § 1332 Diversity of citizenship, amt in controversy
               1. statutory grant does not reach full limits of Art III
               2. (a) District Ct-original juris. Over matters > $75,000 AND
                            a) (1) b/w citizens of different states (small ‘d’, everything else is capital ‘D’)
                            b) (2) citizens of State and foreign citizens
                            c) (3) citizens of different states where foreign citizen is add’l party
                            d) (4) foreign state as plaintiff against US citizen
                            e) for the purpose of diversity, alien admitted to the US for permanent residence
                                 =citizen of the state alien is domiciled
               3. (b) if in the end, plaintiff gets < $75,000, exclusive of interest and cost, then ct may deny cost to
                    plaintiff and can even impost cost onto plaintiff
               4. (c) when dealing with diversity
                            a) (1) Corporation is citizen of state where
                                      (1) Where it was incorporated
                                      (2) Principal place of business (only 1 place allowed)
                                      (3) For insurance companies, also state of the insured party
                            b) (2) Legal representative should be in the same state as the
                                      (1) Decedent
                                      (2) Infant
                                      (3) Incompetent
        C. § 1345 Orig Jurisd when US is P
II. For diversity of citizenship of person: CL
        A. Place of domicile when suit is filed
        B. if status is questionable, look to last place of domicile
        C. party changes domicile when take up residence with the intention to remain there

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III. min contr requirements
         A. Rule of Aggregation: allow adding $ if claims against same D
                1. ex: A->B for $50,000, then A adds to that claim against B, another claim for $50,000
                2. ex: A->B for $80,000, then A adds to that claim against B, another claim for $20,000
                3. DOES NOT MEET REQUIRMENT:
                           a) A->B for $50,000. in same suit, A->C for $20,000.
         B. Patterson case: NOT call the rules of aggregation there!! Where multi-P, tried to add claim $ together
IV. Cases
         A. Strawbridge v. Curtis
                1. Ct decided diversity requires Complete diversity
                2. If there is a party from the same state in both P and D, then can be brought up in state court
                3. Result in Common law, that limit fed. Diversity jurisd
         B. Mas v. Perry (5th Cir., 1974)
                1. D (LA domicile) appeals on ground of lack of SMJ
                2. P was a citizen of France, and under CL, his wife would also be considered a citizen of France
                    and thus a citizen of no state (outside of the reach of § 1332 –allows for suit with foreign
                    CITIZEN only).
                3. Court suspends CL rule:
                           a) When husband is an alien, the CL rule that wife follows domicile of husband no
                                longer applies.
                           b) Since the last domicile of Mrs is in MI, there is complete diversity
                4. Note: 1331(a) rule about alien considered domiciled at state of permanent residence was
                    enacted in 1998.

                                             Federal Question
I.  Constitution/Statutes
        A. Article III, Section 2: Gives federal courts jurisdiction of “cases arising under this Constitution, the
             Laws of the Us and Treaties made”
        B. § 1331: Federal Question (enacted in 1875)
               1. original jurisd over cases arising under Constitution, US laws or treaties
               2. apply only to cases where cause of action arises is in federal law
        C. § 1337 District Ct has orig Jurisd when dealing with Commerce and antitrust regulation
        D. § 1338: District Ct has orig Jurisd when dealing with Patents, copyrights, trademarks
        E. § 1343: District Ct has orig Jurisd when dealing with Civil Rights and elective franchise
II. Test
        A. ‘arising’ under fed law, Art III, 1331
        B. ingredient test, ‘but-for’ test
               1. ‘but-for’ existence of the party, look at charter and language that created entity, (Osborn)
               2. make sure issue in case was specifically granted in statute, otherwise, there may be no jurisd
                   (Harms)
        C. Meaning and application, do you have to apply federal law to reach decision.
               1. there a private cause of action underlying federal question or claim (test from Merell Dow)
                          a) Is there an express cause of action
                          b) Is there an implied cause of action (test from cort v ash)
                                   (1) Is P one of the class for which benefit the statute was enacted?
                                   (2) Did legislative intent to create private cause of action?,
                                   (3) Is it consistent with the underlying purpose of the legislative scheme?
                                   (4) Is the cause of action traditionally relegated by state law?




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III. ‘arising under’ federal law:
          A. Holmes’s cause of action: when fed law creates cause of action. (Art III, § 1331)
          B. Ingredient or ‘But for’ theory:
                1. A case “arises under” federal law if “but for” the federal law, there would not be jurisdiction
                     (federal law must convey Constitutional power) - more expansive than Holmes - too
                     expansive.(§ 1337, § 1338, § 1343, etc)
                2. parties: where fed gov, or agency is concerned, or fed. Chartered private entitle (bank of the US,
                     red cross, amtrack, etc) (Osborn)
                3. entities or property: federal law grant cases: fed gov gives a grant of land to a person, under the
                     fed. Homestead act or copyright. (Harms)
                4. Osborn v. Bank of the U.S. (Sup Ct, 1824)
                            a) Bank of US sue OH state tax auditor from collecting tax that P alleged was
                                 unconstitutional
                            b) Ct:
                                      (1) Congress expressly given power to the Bank to sue and be sued in fed ct
                                      (2) Federal law is an ingredient making the suit against the bank possible (“but
                                           for” federal law, would not have bank).
                                      (3) Congress has broad power to confer SMJ over cases which conceivably
                                           involve federal questions
                5. Harms v. Eliscu (2nd Cir., 1964)
                            a) Although subject is about copyright, but in reality about K about allocating that
                                 copyright
                            b) Ct: Friendly
                                      (1) No arising under: since after the copyright was created under federal law,
                                           anything after that, of which the parties are fighting about ahs to do with
                                           state K law
                                      (2) If case was about copyright infringement, then would be arising under in §
                                           1338
                                      (3) Cause of action alleging assignment of copyrights does not arise under
                                           the Copyright Act fo proposes of SMJ
                            c) Note: If § 1338 contain explicit language (to sue and be sue) like the grant in
                                 Osborne, then this would have been met the ‘but-for’ test
          C. Meaning and Application test
                1. A case “arises under” federal law or the Constitution if a federal law or the Constitution must be
                     interpreted or applied by the court in the course of resolving a case.
                2. Flows from the need for expertise/uniformity in interpreting federal law
                3. Smith v. Kansas City Title (Sup Ct, 1921)
                            a) Shareholders sued to enjoin corporation from investing in federal bonds on ground
                                 that act of Congress authorizing bonds was unconstitutional.
                            b) Cause of action was state-created (securities law).
                            c) However, a determination of federal law was necessary to answer the state law
                                 questions (Meaning and Application Test) – w/in scope of § 1331.
                            d) Such a federal claim must not be “merely colorable,” but must rest “upon a
                                 reasonable foundation.”
                4. Moore v. Chesapeake & Ohio Ry. Co. (Sup Ct, 1934)
                            a) P brought suit under KT Employer Liability Act and claim that employer violated the
                                 Federal Safety Appliance Act
                            b) Ct: not a basis for jurisdiction, contradicted Smith (Although have to look at FSAA
                                 for analysis,)
                            c) A case of Law distinction w/o difference, ct made distinction but illogical and
                                 unreasonable.
                            d) Consensus is that Smith and Moore cannot be reconciled - the inconsistent rules has
                                 to be fixed with Merrell Dow.




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5.   Merrell Dow v. Thompson (Sup Ct, 1986)
            a) A state-law private action, which alleges a violation of a federal statute, ‘arises
                 under’ the laws of the US only if congress intended to provide a federal remedy for
                 the statutory violation
            b) Plaintiffs sue Merrell Dow in state court; Merrell Dow removes the case to federal
                 court; plaintiffs object on the ground no SMJ.
            c) Sup Ct: creates a new theory of Meaning and Application Test:
                      (1) Is there a private cause of action underlying federal question or claim?
                                 (a) Express cause of action: explicitly state in statute
                                 (b) Implied: if statute gives right w/o remedy, maybe an implied cause
                                      of action
                      (2) In this case, no jursd b/c there is no express or implied right of action.
                      (3) The Food, Drug and Cosmetic Act, the purpose of act was to enforce
                            certain standards on drug companies, not to give this group of people the
                            right to sue
6.   Cort v. Ash (Sup Ct, 1975)
            a) Shareholder suit against corporation for violating federal law regulating campaign
                 contributions – criminal statute provided no express private right of action.
            b) Court developed a 4-part test for private citizen implied cause of action deriving
                 from federal statue
                      (1) Is P one of the class for which benefit the statute was enacted?
                                 (a) No. act provided for general protection to public
                      (2) Did legislative intent to create private cause of action?,
                                 (a) Nothing to indicate that this is the case
                      (3) Is it consistent with the underlying purpose of the legislative scheme?
                                 (a) No. By letting individual use, would not deter company from using
                                      $ to influence election
                      (4) Is the cause of action traditionally relegated by state law?
                                 (a) Yes. Regulation of election and corporate law traditionally done by
                                      state
            c) There is not hard-line rule about the test. If there 2-2, then have to decide on the
                 strength of each elements
            d) Schooner Peggy Doctrine (side note):
                      (1) If between judgment and decision of appellate court, a law intervenes and
                            positively changes the rule which governs, the intervening law should be
                            applied. Doctrine of retroactivity.
                      (2) The court must make decision in light of law as it stands when the court
                            makes its decision.
7.   Bivens v. Six Unknown Agents of FBI (Sup Ct, 1971)
            a) §1983 gives citizen rights to sue state officials, but said nothing about suing federal
                 officials, t/f need to find implied cause of action for this case to be heard in federal ct
            b) Ct: found implied right of action from the 4th Amend of the Constitution – to be
                 free from unreasonable search and seizures.
            c) Black dissents: Congress should create these causes of action; the Courts should not
                 pull them out of nowhere. Congress specifically granted a statute for federal cause
                 of action against state officials, there is a reason that Congress did not create one
                 for federal officials




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                                         Supplementary Jurisdiction
I.     Jurisdiction over claims between existing parties or between existing parties and new parties, where there is no
       independent basis for federal jurisdiction if brought separately.
II.    Primary Claim: this is the claim that if looked at independently, would have SMJ in federal court
III.   Background to Enactment of §1367
            A. Res judicata creates problem of pedant claim b/c if you had to drop your state claim than this is
                 piecemeal litigation; but if you waived your right to that claim, it would be res judicata and you
                 couldn’t bring it again in state court.
IV.    Traditionally: Pre-1367
            A. Pendant Jurisdiction Claims: P in the complaint, brings another claim which lacks SMJ either b/c
                   1. it’s a state claim
                   2. does not meet amt-in-contr requirements
            B. Ancillary Jurisdiction Claims: either P or D injects claim lacking SMJ by way of counter, or cross:
                 party lacks SMJ
V.     Steps
            A. ID primary claim
                   1. does primary claim have SMJ?
                                a) If not b/c did not reach amt-in-contr amt, look at rules of aggregation (for same
                                    parties only!)
                                b) Ex: A->2 claim on B. claim 1: 50k, claim 2: 50k, not same T&O
                                          (1) primary claim: no SJM
                                          (2) t/f: although according to 1367, no supp jursid is allowed but under
                                               aggregation rules, this claim is valid under fed ct
                   2. what does primary claim sound in? federal question or diversity
            B. ID supp claim
                   1. does supp claim involve same transaction or occurrence (1367(a))
                   2. if primary claim based on diversity, does supp claim involve P joining parties under Rule 14, 19,
                        20 or 24 (1367(b))
                   3. Claim involving joinder of claims (Rule 13, 18), Can aggrregation rules be used to give sup
                        jurid?
VI.    Case: Pre-1367
            A. UMWA v. Gibbs (Sup Ct, 1966)
                   1. Pendent claim case;
                                a) P brought a federal law claim (independent basis for federal jurisdiction) and two
                                    state-law contract claims (no independent basis for federal jurisdiction).
                                b) Lower ct allowed pendent jurisd but at the end, the Federal law claim failed
                                    (judgment jnov), now only the state claim remains. Question is, is that appropriate?
                   2. Sup Ct: develops new test for pendant claim jurisdiction
                                a) Claims for which there is no independent basis for jurisdiction must arise from the
                                    same “common nucleus of operative fact.”
                                          (1) If claims arise from the same “nucleus” they satisfy the Constitutional
                                               requirement of “case or controversy”  test morphed into it being part of
                                               same transaction and occurrence.
                                b) In this case, pendant jursid granted b/c
                                          (1) state and federal law claims closely related
                                          (2) even though federal claim dropped out, it did so AFTER trial as jnov. If
                                               federal claim dropped out b/f trial, then it may be different (some cts would
                                               allow it, some won’t)
                   3. a federal ct may hear P’s state law claims, based on the doctrine of pendant jurisd, whenever
                        one claim arises under federal law and the state and federal claim derive from a common
                        nucleus of operation facts
                   4. what if district ct decided on 2 issues, then appeal, but only appeal on the one that does not have
                        fed jursid by itself. Can ct of appeals still hear it?




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     B. Aldinger v. Howard (Sup Ct, 1976)

                                      Jurisdictionally proper under 28 USC
                                      §§1331 and 1343
                                                                                         Howard
         Aldinger                                                                        (Washington)
         (Washington)               Federal claim



                          State claim – no
                          independent basis for SMJ                                        Spokane
                                                                                           County (Wash)
            1.   P
                 e1. pendant party case; federal question jurisdiction.
                        a) A->officers, under violation of civil rights act, 28 USC 1983, independent jurisd
                        b) A->county, bring in county as 2nd party, no independent jurisd (1you to sue county)
            2.   Sup Ct: NO pendent jurisdiction b/c statute does not grant right to sue county.
            3.   Pendant party jursid is ok unless congress expressively rule it out in a specific statute

     C. Owen Equipment & Erection Co v. Kroger (Sup Ct, 1978)

                        (Proper Diversity Claim)
                                                                                       OPPD
                                                                                       (Nebraska)
Kroger
(Iowa)

                                                                       Rule 14 (a)




            (No independent basis for SMJ
                                                                                     Owen
                                                                                     (Nebraska and
                                                                                     Iowa)




            1.   Pendant party case
                        a) P->diverse D, D impleads a Owen (3rd party D); P amend and asserts claim against
                            Owen
                        b) Original claim drops out on SJ, leaving P’s claim against Owen, who is not diverse
            2.   Sup Ct: No pendant jusrid
                        a) there is no diversity b/w P and owen, to allow this would violate a very important
                            diversity rule in § 1332.
            3.   Key: NO SMJ based on Pendant Party jurid if adding pendent party D would destroy
                 complete diversity
                        a) Does not mention P, but 1367(b) talks about this
                        b) Timing (initially or later) or sequence of adding parties does not matter, only the end
                            result matters, to determine whether there is SMJ




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         D. Finley v. United States (Sup Ct, 1989)


                                         FTCA Claim §1346
  Finley (CA)                                                                          United
                                                                                       States



                           State law, no SMJ                                         Other D
                                                                                     San Diego

               1.   Pendant party case
                            a) P->FAA, under FTCA (give grants federal ct juris over claims against US, but need
                                 to apply state law. independ jursid.
                            b) P->san Diego, under state law. no independent jurisd.
                2. Sup Ct: No pendent jurisd
                            a) refuses to allow pendant party jurisdiction in the absence of an express grant of
                                 authority by Congress (reversal of the presumption under Aldinger).
                            b) although Constitution would allow this to happen, it is not ok under FTCA and 1331
                                 statutes
                3. to get pendent party jurisd, statute conferring federal jurid must expressly authorize pendent
                    party jurisd
                4. Note: after this case, very confusing about pendent jurids
VII. Judicial Improvement Act of 1990
         A. Gear to restore things before Finney, preserve Kroger
         B. §1367 Supplemental Jurisdiction
                1. (a) Broad, permissive grant of authority for supplemental jurisdiction., essentially allows
                    jurisdiction to the limits of Article III.
                            a) Echoes of Gibbs - In a case with original jurisdiction over a primary claim,
                                 federal courts will have supplemental jurisdiction over all claims that are part of the
                                 same “case or controversy” (transaction or occurrence).
                            b) Involves claims between two parties or additional parties (intervening or joined
                                 parties).
                2. (b) restricts a bit from power given in (a)
                            a) In diversity suits under § 1332, no supplemental jurisdiction over when exercising
                                 SMJ would destroy diversity:
                                      (1) claims by plaintiffs against persons made parties under
                                                (a) Rule 14, (4rd party joinder)
                                                (b) 19, (joinder of persons necessary)
                                                (c) 20, (permissive joinder of parties)
                                                (d) 24 (intervention)
                                      (2) claims by persons proposed to be joined as plaintiffs under Rule 19, or
                                           intervene as plaintiffs under Rule 24;
                            b) Amount in controversy rule remains unchanged.
                            c) Doesn’t include claims by 3rd party P and 3rd party D.
                3. (c) Grants courts discretionary power to decline supplemental claims:
                            a) If claim involves a novel question of state law.
                            b) If supplemental claim substantially predominates over primary claims over which
                                 there is independent basis for jurisdiction.
                            c) All claims with jurisdiction have been dismissed.
                            d) Exceptional circumstances with compelling reasons.
                            e) Note: Codifies the discretionary factors identified in Gibbs. Supp Jurid is not a right
                                 to P, something that is granted by ct if ct decided that it is a good idea
                            f) Implied: if ct decline to exercise supp jursid
                                      (1) Ct should split claim and send back only dismissed supp claim
                                      (2) Must keep primary claim
                                      (3) Exception: Colorado River abstention doctrine
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              4.   1367 (d) Tolls (pauses) the statute of limitations while supplemental claims are pending in
                   federal court, Clock will start again when claim is dismissed
                           a) In add’l, get 30 days to refile state claim
VIII.   Case: Post 1367
        A. In re Abbott Labs (Fifth Cir., 1995)
              1. Class action case filed in state court in LA, removed to federal court by the D on diversity
                   jurisdiction.
              2. Ps seek to remand to state court for lack of SMJ.
                           a) Defect in diversity - Class representatives’ claims met the amount in controversy
                               requirement (with attorney’s fees), but the claims of the class members did not
              3. Ct:
                           a) Zahn had held that the claim of each class member must meet the amount in
                               controversy requirement.
                           b) However, Effect of § 1367
                                    (1) § 1367(a) gives unnamed class members jurisdiction riding in on the
                                        primary claim of class representatives.(arise out of same T&O)
                                    (2) § 1367(b) does not take this jurisdiction away - Rule 23 (class actions) is
                                        not listed.
                           c) Therefore there is supp jurisd over class members. § 1367(a) gives power, but §
                               1367(b) does not take it away
                           d) effectively overruling Zahn.
        B. Leonhardt (10th Circuit, 1998) - did not agree with Fifth Circuit:
              1. Held Congress did not intend to change the Zahn rule when a plaintiff can bring an initial suit
                   under Rule 23.
              2. § 1367(b) only applies to people added to a case.
              3. Literal reading of § 1367 preserves Zahn., each supp claim must meet amt-in-contr requirement
              4. This questions remains unresolved
        C. Patterson (Kansas District Court, 1993)
              1. Three KS plaintiffs sue an OH defendant; two of the KS plaintiffs claims are less than the
                   amount in controversy requirement.
              2. Can these two claims ride the third, sufficient claim into federal court?
              3. Ct: allow for Supp Jurid
                           a) Pre-§ 1367, these claims could not get in: these are not the same parties so
                               aggregation rules do not apply.
                           b) However, today, there is 1367
                                    (1) 1367(a) allows supp jurid
                                    (2) 1367(b) does not apply since claim was brought together in the original
                                        suit. The parties were not added later
                                    (3) this is wrong reasoning.
              4. Problem: This is against what Kroger said, where only the end picture matters. Using the
                   Patterson logic then, as long as party start claim together, then can destroy diversity. This is not
                   what the ct intended.
              5. Correct reasoning: literal reading of 1367(b), only extends to cases where
                           a) P is joined by 19, 24
                           b) D is joined by Rule 20
                           c) P joined by 20 (as in this case) is allowed




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                                                     Removal:
                                      D remove case from state to federal ct
I.   Purpose
        A. the purpose of Removal jurisdiction is to protect the D from out of state biases and to protect the D’s
               federal rights and interests
        B. P is master of the complaint; gets to pick the forum and manage the lawsuit;
                1.   removal is one of the big exceptions b/c it lets the defendant second guess the forum (fed v.
                     state) that P has chosen.
                2.   the second guessing sets off a whole set of strategic counter moves on the part of the P to defeat
                     the D changing the forum.
                3.   the courts haven’t’ dealt with these cases in a consistent manner;
II. Statutes
        A. §1441: Actions Removable Generally:
                1.   (a) A case can be removed to federal ct if it could have been brought in federal court in the first
                     place
                             a) majority has interpreted to mean that in cases of multi-Ds, ALL Ds must agree to
                                  remove
                             b) removal is subject to the well-pleaded complaint rule; (an anticipated federal
                                  defense, cannot be the basis for removing the claim) (Shamrock)
                 2. (b) In diversity cases, the action may be removed only if no defendant is a citizen of the state in
                     which the action is pending
                 3. (c) If a separate and independent claim or cause of action where 1331 confer jursid is join with
                     non-removable claims, entire case may be removed and distr ct may determine entire case, or at
                     its discretion, remand all matters to state ct
                             a) this is pretty much dead b/c the Sup Ct held that ‘separate and independent’ =
                                  unrelated to same T&O in American Fire and Casualty. So this section would never
                                  apply to a case, b/c there would be no supp jurisd since it has to be same ‘nucleus of
                                  fact’s
                 4. (d) If against foreign state, may be removed by foreign state to dist ct. upon removal, tried w/o
                     jury
                 5. (e) - An action removed from a state court that had no jurisdiction to hear the case is not
                     precluded from being heard in federal court
        B.     §1442: Federal officers sued or prosecuted. If D is US, agency, or offical of US, can remove to
               federal ct
        C.     § 1446- Procedures for Removal
                 1. D(s) must file notice of removal in federal district court.
                 2. All Ds must agree on removal.
                 3. Must be filed within 30 days of receipt of claim.
                             a) Subject to wavier rule. if not file w/in 30, D’s right to remove is waived
III. Test
        A. apply 1367 to determine if there is supp jurid
             1. if there is supp jurisd, then may remove to federal ct
             2. if there is no supp jurisd, then cannot remove to federal ct
       B. Is D from state where claim is brought?
       C. Do all Ds agree to remove?
       D. for impleader:
             1. A->B, B->C
             2. Majority rule: 3rd party D(C) not counted as D for purpose of state reside rule. So even if 3 rd
                 party D is from the state where claim is brought, case can still be remove. This is still a gray
                 area.
             3. However, if A->C, now C is a D, and the state where reside rule applies
IV. Shamrock Oil & Gas Corp. v. Sheets (Sup Ct, 1941)
       A. P may not remove a state-court action to federal ct, even if D brings counterclaim that satisfies the
           requirements for federal jurid
       B. Court held that plaintiff could not remove based on a federal counterclaim.
       C. Plaintiff having submitted to the court’s jurisdiction.

                                                                                                                      11
                                 Defeating Removal Jurisdiction:
I.   Ways P can defeat a removal
         A. Claim amount in controversy less than $75,000.
              1. Distinction between pre-removal and post-removal by amendment.
              2. Pre-removal - Plaintiff is the master of his complaint.
              3. Post-removal - Looked at with skepticism by the courts.
         B. Additional parties
              1. Under a primary federal question claim, §1367(a) gives jurisdiction to pendant state law claims -
                   adding parties really doesn’t defeat removal
              2. Under diversity claim, joining a party who a citizen of the state in which the action is brought
                   can defeat removal under §1441(b).
         C. Additional claims
              1. Adding a claim that does not have supplemental jurisdiction under §1367 can defeat removal of
                   the entire case.
         D. Dropping federal claim.
              1. See Cohill below, giving courts authority to remand in this case if fed claim is dropped
         E. Add fictional/insubstantial/unnamed parties
              1. Subject to the “Real Parties in Interest” Doctrine
              2. Rose v. Giamatti (S.D.Ohio, 1989) - Citizenship of nominal parties may be disregarded for
                   purposes of diversity of citizenship.
II. Statute
         A. § 1447 - Procedure After Removal Generally (remand)
              1. Upon filing of notice, case is deemed removed.
                           a) State ct has no more jursid, federal ct has presumptive jursid
              2. An improperly remanded case must be remanded to state court.
              3. Two grounds for remand specified in statute:
                           a) Defect in the removal procedures. (failure to notice party of removal or file w/in 30
                                days)
                           b) Lack of SMJ (never waive right to remand under this ground).
              4. (c): Motion for remand must be filed within 30 days. If anytime b/f final judgment, discover
                   there is no SMJ, may remand at any time
              5. (d), orders to remand are not reviewable on appeal, except for cases under 1443 (civil rights
                   cases)
                           a) asymmetry in reviewability provision
                                    (1) Denials of orders to remand can be appealed and reviewed –. (interlocutory
                                          appeal)
                                    (2) P can get decision to remove reviewed
                           b) Reasoning: decision to remand is ‘final’ aspect to the fed ct, to allow review would
                                slow things down. Removal is reviewable b/c it’s about a decision of whether case
                                stays in state ct, where action is already in progress
              6. (e) if after removal, P seek to join add’l D whose joinder would destroy SMJ, ct may deny
                   joinder, or permit joinder and remand action to state ct what about joining other Ps?
              7. No mention of dismissal anywhere in this rule. can do it in CL?
III. Thermtron v. Hermansdorfer (Sup Ct, 1976)
         A. Ct cannot remand a properly removed case (base on diversity) just b/c docket is full, need a reason
             authorized by removal statute
         B. Sup Ct:
              1. remand was only authorized in two cases (above).
              2. held that §1447(c) and (d) must be read together, allowing for review of remand orders on
                   grounds not specified in 1447.




                                                                                                                12
IV. Carnegie Mellon University v. Cohill (Sup Ct, 1988)
       A. P brought suit in state court, D removed to federal court based on federal question jurisdiction.
       B. P later dropped federal question claim and sought an order to remand the case to state court. All
            that’s left is tail wagging the dog.
       C. Situation similar to Gibbs, where ct has discretion under 1367(c) to grant or not grant supp jurid.
       D. Ct has 3 choices
              1. remand state claims to state ct
              2. keep state claims
              3. dismiss case
       E. Sup Ct: remand is ok
              1. held that remand of these cases is allowed for reasons of efficiency, fairness are other
                   grounds for remand  kind of like pasting 1367c onto 1441-1446.
              2. distinguish from Thermtrom b/c there, ct has no authority to decline to hear removed case.
                   Diversity is not discretionary. Here, it is not diversity case.
       F. Note: this case was before 1367(d), and SL had ran, P could not re-file in state ct

                                           Personal Jurisdiction
 how does PJ relate to supp jurisd?
I. Purpose:
         A. whether the ct has exercising power over the party involved, to summon party into ct and to subject
             party to force of its judgment
         B. Exists to protect defendant, who may waive this. By appearing in ct, with no personal jurisd, defendant
             waives this right. T/f, after trial is over, cannot appeal on this ground
II. Two requirements for assertion of personal jurisdiction:
         A. Power over the Person - Abstract power of the sovereign to bring parties before it and bind them.
         B. Perfection of Power over the Person - Court must take steps to assert their power over the parties.
               1. service of process.
               2. notice and opportunity to be heard.
               3. great depends on the kind of PJ exerted (in persona, IR, QIR)
III. domicile does not matter in PJ. It is what underlines domicile, the degree of activity w/in state is the key to PJ
IV. 3 kinds of person jurisd
         A. in personam: GOLD STANDARD
               1. jurisd over person
               2. full extent of liability for the matter
         B. in rem:
               1. jurisd over property of the individual
               2. cause of action is the property
               3. Forfeiture by definition is an IR proceeding
         C. quasi in rem:
               1. jusrid over property
               2. seizure of property is basis for jursid
               3. damages limited to value of property
V. Constitution/Statues
         A. 14th Amend: Due Process Clause: no state may deprive any person of life, liberty, or property w/o due
             process of law
         B. Rule 4: Summons
               1. (a) Form; content of summon
               2. (b): Issuance:
               3. (c): Service with complaint; by whom made: service may be made by another who his not a
                    party >18 years old, attorney is OK
               4. (d): Waiver of service; duty to save costs of service; request to waive:
                           a) (1) waiving service of summon does not waive SMJ, PJ or venue
                           b) (2) creates a duty to avoid costs, so you have to have a reason not to waive. D has 60
                                 days to reply (instead of 30) if waive service




                                                                                                                    13
               5.  4(e): service on individual, you can deliver the papers anywhere; unless otherwise provided by
                   federal law;
                           a) serve according to the law of the state where Dist Ct is OR
                           b) where service is effect OR
                           c) deliver copy with D personally, leave copies at D’s home in hands of someone of
                                suitable age who lives there, or copy to agent authorized to receive summon by law
               6. 4(f): service upon individuals in foreign countries
               7. 4(h): Corporations:
                           a) parallel to 4(e) OR
                           b) deliver to officer, agent authorized by law, mailing to D corp
                           c) Hellenic Challenger interpretation
                                     (1) service can be to an agent who stands in a position to render it “fair,
                                          reasonable and just to imply the authority on his part to receive
                                          services.”
                                     (2) Must reasonably expect that deliver to that person would come to the
                                          attention of individuals who handle litigation  flexible standard.)
               8. 4(k): Territorial Limits of Effective Service: (in personam only)
                           a) (1) Service of summon and waiver of service is effective for PJ if D is :
                                     (1) (a) Subject to PJ of the court in the state where the fed court who issued the
                                          summon is (long arm statute)
                                     (2) (b) bulge rule
                                               (a) party joined by Rule 14 (3rd party) or 19(joinder of persons
                                                    necessary for adjuctation), no need for min contact, just has to be
                                                    served <100 miles from where summon issued (w/in the US)
                                               (b) note:
                                                         (i) some ct held that you still need min ct even though there
                                                              is the bulge rule
                                                         (ii) if state has short-long arm, then can use this to get PJ
                                     (3) parties subject to interpleader jurisd.
                                     (4) (d) when authorized by US statue
                           b) (2) Omni provision
                                     (1) even if D is not subject to general jurisd. of state, as long as D has sufficient
                                          contact with the US (as a whole, no need for particular state) to
                                          constitutionally support jurisd. and case arises under federal law (not based
                                          on diversity), then there is PJ
                                     (2) D can now be sue in any state
                                     (3) note: only use this if D cannot be sue in any state
               9. 4(m): Time Limit of Service: w/in 120 days of filing complaint. If not, dismiss w/o prejudice or
                   ct may extend service time
               10. 4(n): Seizure of Property (IR and QIR)
                           a) (1) - Allows IR and QIR jurisdiction if a federal statute so provides.
                           b) (2) - Allows state law (of where court sits) to be used to assert IR or QIR jurisdiction
                                in federal court.
                                     (1) Can only be used if you cannot obtain in personam jurisdiction
                                     (2) Can’t argue it’s too expensive, must be impossible/not feasible (i.e. you
                                          can’t find a defendant).
                                     (3) Prop. seized must be in the judicial district where court sits.
                                     (4) If state long-arm statute is short (for in personam), this rule allows QIR
                                          jurisdiction to the limits of Shaffer (minimum contacts for IR & QIR).
VI. Factors to consider when choosing where to sue (what state):
        A. Substantive law (i.e. statute of limitations).
        B. Strength of a state’s long-arm statute (how easy will it be to assert jurisdiction over the defendant?).
        C. Is the forum seen as pro-plaintiff or pro-defendant?
        D. Convenience to the plaintiff (close to home?).
        E. Easier to establish defendant’s minimum contacts?
        F. Where are the witnesses and the evidence?
        G. Removal concerns.


                                                                                                                       14
VII. Omni v. Rudolf Wolf (1987)
        A. D has sufficient contact with LA, so constitutionally, LA can exert PJ over D
        B. However, LA has short long arm statute and doe not reach D, British investor
        C. Ct held that LA has no PJ b/c of short long arm. D could not be sued anywhere
        D. Congress became worry: if foreign party does not reach min contact test for ONE state, but does meet
             min contact as an aggregate with all states added up, then there is windfall
        E. Created Rule 4(k)(2)
VIII.   Ways to attack PJ
        A. Special appearance:
               1. D only in ct to contest PJ. Does not mean consent
               2. Every state allows this
        B. Limited appearance:
               1. In IR and QIR cases, D come in and trial case on the merit.
               2. Damages limited to the extent of your property.
               3. Adopted only in a few states but the trend is increasing

D’s Response to the Original Suit     Action in the Rendering Court          Action in the Enforcing Court
D appears, defends on merits, and     Enters judgment for P                  Must Enforce judgment, D has
loses                                                                        waived his PJ objection
D makes a special appearance or       dismisses action for lack of PJ;       If original suit dismissed, no
a 12(b)(2) motion; Court agrees       order proper service to cure           judgment to enforce. However, P
that it lacks jurisdiction            jurisdictional defect                  may file a new suit in a court that
                                                                             has jurisdiction over D
D makes special appearance or         Enters judgment for P                  enforce judgment b/c D already
12(b)(2) motion;                                                             litigated the rendering court’s
                                                                             jurisdiction and lost
Court upholds jurisdiction;
D loses on objection to               In most states, appellate court        If jurisdiction upheld on appeal,
jurisdiction;                         may review decision that               or objection waived by defense
                                      jurisdiction was proper;               on merits, must enforce the
Defends action on the merits;                                                rending court’s judgment
                                      a few may treat defense on merits
Loses; Appeals                        as a waiver of the jurisdictional
                                      objection
D defaults, contests jurisdiction     Enters default judgment for P,         If 1st ct has no PJ: refuses
in enforcing court                    unless lack of jurisdiction is clear   enforcement
                                      from the complaint
                                                                             If 1st ct has PJ: enforce the
                                                                             judgment. D cannot contest
                                                                             merits of the 1st action since he
                                                                             defaulted
D defaults, denies liability on the   Enters default judgment for P,         Enforces the judgment; full faith
merits in the enforcing court         unless lack of jurisdiction is clear   and credit clause precludes
                                      form the complaint                     reexamination of merits, settled
                                                                             by default


Traditional Basis for Personal Jurisdiction
I. Formal, geographical, territorial, physical presence, authority of sovereign.
II. Based on the notion that the jurisdiction of a state’s courts extends to the borders of the state and no further.
III. Traditionally, for PJ to be asserted by a court, one of the three was required:
         A. Citizenship in the state (domicile)
         B. Physical presence in the state.
         C. Consent of the out-of-state party.




                                                                                                                        15
IV. Tickle v. Barton (Sup Ct of WV, 1956)
        A. P was injured in an accident in WV, but the D car driver was a resident of VA.
        B. P serves process on D when he is physically present in WV. However, it was questionable where D was
              ‘tricked’ into coming into WV b/c of a ‘banquet’
        C. Traditional rule: power of the ct extends to the border of that ct’s sovereign geographical area and no
              further. The minute you go over border, the ct has no power to reach over and summon you.
        D. Ct: held: service of process on a person who has been enticed into a jurisdiction by fraud is not valid
V. Pennoyer v. Neff (Sup Ct, 1877)
        A. define theory of PJ. Every state possess exclusive jursid and sovereignty over person and property
              w/in its border. Ct of that state may enter judgment against non-resident only if he is perseonally
              served with process while w/in state, or if he has property w/in state, if that property is attached b/f
              litigation begins
        B. Action #1:
                 1. Mitchell sues Neff for attorney fees in Oregon Court.
                 2. QIR PJ (case was about attorney fee, not property), Neff’s property w/in state was used to satisfy
                      judgment
                 3. State statute allows jurisdiction based on seizure of prop. in the state coupled with notice
                      published in newspaper.
                 4. Notice of suit is published in newspaper but property was never seized (attached)
                 5. Mitchell won and got property to satisfy judgment
        C. Action #2:
                 1. Neff sues Pennoyer in federal court to quiet title – action in ejectment.
                 2. Neff collaterally attacks Action #1 on the basis that the court lacked PJ.
                 3. Procedural defect (not seizing prop.) did not perfect PJ, t/f action is null and void
        D. Sup Ct: Neff, will not enforce judgment of Action #1
                 1. Court argued notice is given to owner by seizing of prop. - prop. owners are assumed to be aware
                      of what happens to their prop..
                 2. Without this seizure, Neff was deprived of notice and opportunity to be heard, which Court says is
                      a Constitutional due process right
                 3. Have to protect due process rights of the individual who owns the property  novel idea.
                 4. Shift from reliance on formal concepts to more functional purposes.
                 5. QIR and IR jurisdiction are acquired by seizure + posting/publication.

                                Modern PJ and Long-Arm Statutes
I.   Modern theory
          A. Increase mobility and revolution in commerce (corp does biz across state lines) lead to a different
              approach to PJ
          B. Shift to more functional
                1. functional, contacts/relational, non-intentional/non-geographic “rights” - burden on the D,
                      fairness
                2. Principle of where a person was gave way to the principle of whether there was a relationship
                      between the person and the jurisdiction.
                3. Convergence of the perfection power for all 3 kinds of PJ
          C. These considerations were constitutionalized under the Fourteenth Amendment’s Due Process Clause.
II. Expanding PJ
          A. States resort to “legal fictions” to establish PJ over nonresidents, while maintaining the traditional
              notions of jurisdiction (i.e., presence and consent).
          B. Constructive Consent: Parties were deemed to “consent” to personal jurisdiction by driving in the
              state. (Hess)
          C. Consent to appoint state registrar as your agent for receiving process (your agent is thus present in the
              state).
III. Int’l Shoe was the first case that established the “modern” standard for personal jurisdiction.
          A. ‘min contact’: mainly with corporation, but can be used for individuals as well, though rarely




                                                                                                                    16
IV. After Shoe, states began to pass ‘long-arm’ statute
          A. Long arm statutes allowed states to expand the reach of their courts in asserting personal jurisdiction.
          B. Some stats have ‘short’ long-arm statute that does not reach as far, does not reach to the limits of the
              constitution allows
          C. types
                1. Single Action Statutes: point to a single act (committing a tortious act in the state) and provide a
                     rule for service of process.
                2. Single Activity Statutes: “doing business” in the state.
                3. Omniibus or Laundry List Statutes: list of acts or activities that will give PJ
                4. Omnibus “Catch-All” Statutes: Allow jurisdiction to the limits of Constitution.
V. 2 step process for long arm statute to get PJ
          A. read statute, to see what the statute authorizes
          B. decide if statute is w/in the full extent of what the constitution allows (conforming with due process)
VI. to determine whether there is min. contact
          A. Reciprocity (International Shoe)
          B. Undue burden on defendant (International Shoe)
          C. Foreseeability (Gray)
          D. purposeful availment
                1. stream of commerce (gray)
                2. single act (McGee, Hanson)
          E. Systemic or forum-specific factors (Gray & WWV)
                1. is this forum a good place to litigate?
                2. Evidence/witnesses?
                3. Interest state has in providing a forum for vindication or protection of its citizens rights?
VII. Hess v. Pawloski (Sup Ct, 1927)
          A. Massachusetts law provided that operation of a motor vehicle on roads in the state deemed equivalent
              to appointing registrar as your agent.
          B. D, by voluntarily driving in state, gives consent to this
          C. Court upholds the Constitutionality of this method.
          D. PJ may be acquired by enactment of a non-resident motorist statute that implied consent to submit
              to state’s jursid by using the highway
VIII.         International Shoe v. Washington (Sup Ct, 1945)
          A. Facts:
                1. Intl Shoe, a DE corporation with HQ in St. Louis, had salesman operating in Washington state,
                     but no offices, etc.
                2. State sued to collect taxes from corporation.
                3. Intl Shoe makes a “special appearance” to contest jurisdiction
                4. Shoe argues its activities in state do not amount to presence.
          B. Sup Ct:
                1. Created “Minimum Contacts” test
                             a) These minimum contacts must be such that “traditional notions of fair play and
                                  substantial justice" are met.
                2. 2 elements
                             a) undue burden on D: burden in defending in this forum and D’s fair expectations of
                                  being sued there
                             b) Reciprocity - D took advantage of and invoked the protection of the laws of the state,
                                  so it must also meet such obligations.
                3. Create Taxonomy/Classification System for PJ
Continuous and systematic contacts and cause of            Won’t rule out PJ (if activities were sufficiently
action is unrelated to contacts:                           continuous and systematic - General Jurisdiction).
Continuous and systematic contacts and cause of            PJ (Specific Jurisdiction)
action arises from these contacts:
Isolated substantial contacts, not systematic or           look at individual basis for PJ
continuous
sporadic, casual, single act and cause of action           No PJ
unrelated

                                                                                                                    17
IX. Gray v. American Radiator (Sup Ct of IL, 1961)
       A. Stream of commerce case
       B. Introduces concept of purposeful availment in determining minimum contacts - defendant voluntarily
             injected his product (valve) into the stream of commerce D contests jurisdiction on two grounds:
               1. Long arm statute does not apply to it (tortious act did not occur in state - manufacture of the
                    part occurred elsewhere).
               2. If statue does apply, then statute is unconstitutional for going to far to granting authority to
                    assert PJ (single act).
       C. Court: holds that minimum contacts exist where the maker of a product injects that product into the
             stream of commerce for ultimate sale in another state; not unreasonable to hold maker responsible in
             that state.
       D. foreseeability
               1. D could have easily foresee that its product would end up in IL and what will happen to it there
               2. deliberate line of sales
       E. Good idea to have case in IL b/c
               1. state has interest in protecting its citizens
               2. witness and evidence most likely in IL. Increase efficiency of adjudication
       F. Today, Gray comes to stand for the outer limits of PJ in ‘min contact’
X. McGee v. International Life Insurance Co. (Sup Ct, 1957)
       A. Single contact case
       B. State may exert PJ if there was a single contact with state if that contact was what gave rise to case
             and was deliberately directed toward the state (purposeful availment)
       C. P in CA suing his insurance company in TX
       D. Insurance company claim there is not PJ b/c the only contact was the mail exchange b/w P and D
       E. Ct:
               1. Single or isolated contact (contract)
               2. continuous activity on this one policy
               3. Purposeful availment: D reach out to P in CA to get his biz
       F. Court also weighs systemic factors:
               1. CA has an interest in seeing rights of its citizens protected
               2. Witnesses most likely in CA .
               3. Plaintiffs at a disadvantage if following insurance companies to sue.
XI. Hanson v. Denckla (Sup Ct, 1958)
       A. Single contact case
       B. Donner created trust with D
       C. Donner moves to FL and changes beneficiary of her trust
       D. 2 actions start simultaneously
               1. Action #1: P, beneficiary, sue D in FL, judgment for P
               2. Action #2: P sue D in DE to settle rights and duties under the trust,
                           a) P collateral attack on 1st action
                           b) Ct held that there was no PJ in 1st action, t/f judgment void
       E. Sup Ct: no PJ
               1. D did no business, advertise, offices, etc. in FL.
               2. K was unilateral - non-purposive availment by D, t/f no foreseeability
               3. state may not exerice PJ over D if D’s contacts with the state are neglilgible and non-
                    deliberate




                                                                                                               18
                                                   Specific Jurisdication
I. cause of action arises out of the event in the forum
II. Elements: Min contact + consideration of other factors
        A. “Traditional notions of fair play and substantial justice” (International Shoe).
        B. Reciprocity - Defendant has availed himself of the protection of the state’s laws and should therefore
            be subject to them as well. (Burger King)
        C. “Undue burden” on defendant.
        D. “Purposeful Availment” (Gray) or “Purposeful Direction” in stream of commerce cases (WWV).
        E. Systemic or forum-specific factors: (WWV) (+/- factors)
              1. Interest of forum state in providing redress for its citizens.
              2. Convenience to plaintiff and efficiency for P
              3. Other states interests in effective resolution of disputes and promotion of social issues.
        F. Foreseeability - Defendant must have a reasonable expectation of being haled into the forum state’s
            courts (WWV - no, Burger King – yes, choice of law selection clause).
        G. Defendant need not enter the state to have minimum contacts (business dealings).
        H. Actions taken outside the state (tortious act or business activity) can satisfy minimum contacts
            requirement-case, (Gray)
III. World-Wide Volkswagen v. Woodson (Sup Ct, 1980)
        A. Stream of commerce case
        B. to get PJ, D must have chosen to have some contact with that state, consideration of fairness,
            convenience, and the interest of the state in having that litigation in its state
        C. Facts:
              1. Plaintiffs purchase car in NY, drive it through OK where they are in an accident and car’s fuel
                   tank explodes.
              2. File products liability suit in OK naming WWVW, the distributor and a NY corporation with no
                   business in OK, as D
              3. D contested no PJ on the ground that it had no minimum contacts with OK and that assertion of
                   PJ violated their due process rights under the 14 th Amendment.
              4. OK Supreme Court held that OK long-arm statute did provide authority for this assertion of
                   jurisdiction;
        D. Sup Ct: no PJ
              1. Minimal contact: Foreseeability is a key concept in this case
                           a) Plaintiffs argue it was foreseeable to defendants that the car, being mobile
                               instrument, could end up in OK.
                           b) Like Gray, this is a unilateral action, but it is on the part of the plaintiffs; no
                               purposeful availment
                           c) “Purposeful direction” to the forum state is the standard here.
                           d) no foreseeable that D could reasonably expect to be haled into court in OK since all
                               its sales was in the Northeast region
                           e) Gray is distinguished
                                    (1) as sale in NY was the last stop on the “stream of commerce train” -
                                         plaintiffs then took car to OK.
                                    (2) Random migration of the item. Gray had a ‘normal’ flow
              2. add’l systemic and forum-specific factors of test.
                           a) Defendant’s burden in defending in forum state.
                           b) Plaintiff’s interest in convenience and efficiency.
                           c) Interests of the forum state.
                           d) Interest of the states together - most efficient administration of justice and furthering
                               fundamental social policies.
              3. These factors above can act as:
                           a) “Plus” factor - boost minimum contacts over fairness threshold.
                           b) “Minus” factor - sufficient contacts, but not “fair.”




                                                                                                                     19
IV. Keeton v. Hustler Magazine, Inc. (Sup Ct, 1984)
        A. P (NY) sues D (OH corporation) in NH federal court.
        B. P chose NH because of long statute of limitations.
        C. Lower ct: no PJ b/c P did not have sufficient contact with state
        D. Sup Ct: reverse
              1. no requirement that P has minimum contact for PJ
              2. correct test is to look at min contact for D.
              3. D sold 15,000 magazines there  substantial, continuous, and systematic. Enough min contact
                   for PJ
V. Burger King Corp. v. Rudzewicz (Sup Ct, 1985)
        A. choice of law clause in K amounts to a waiver of PJ objections.BKC, a FL corporation, sues
            Michigan franchisee in federal court in FL. (anti McGee b/c big guy is dragging poor franchisee to
            FL ct)
        B. D objects to PJ on the ground of insufficient contacts.
        C. Sup: there was PJ
              1. there was a K b/w parties that specified FL to be the choice of law clause.
              2. Clause indicates that D purposefully availed himself of FL law - satisfies the reciprocity element
                   of minimum contacts analysis.
              3. D could reasonably expect to be haled into court in FL.
              4. However, court holds that a contract with an out-of-state party alone cannot establish minimum
                   contacts - prior negotiations, contemplated future consequences, terms of contract, and parties’
                   course of dealing are all factors that add to this case.
VI. Asahi Metal Industry Co. v. Superior Court (Sup Ct, 1987)
        A. Stream of commerce case
        B. Similar to Gray - Stream of Commerce case where item gets incorporated into another product that is
            sold ultimately in CA.
        C. Asahi’s business in CA was a tiny percentage of Asahi’s total business, but supply a large volume of
            parts for CA bikes (1000s).
        D. Sup Ct: Plurality opion
        E. O’Connor: (which has become accepted):
              1. insufficient min contact
                          a) need stream of commerce plus: need more substantial contact that just the item
                               being there, like advertising, employees, agents, sales, marketing, establishing
                               channels for regular communication, developing product just for that state
                          b) not enough foreseeablility
              2. systematic factors unfavorable for a foreign corp
                          a) D is a foreign corporation, involves complication relational issues b/w countries
                          b) Not fair to have foreign corp to have to litigate in foreign legal system
        F. Note: case really deal with the facts in this case, not very useful for future cases

                                         General Jurisdication
I. cause of action does not arise out of the events in the forum
II. D has such “continuous and systematic” (Perkins) and substantial activities in the forum state that assertion of
     PJ is warranted even if the cause of action is unrelated or does not arise out of the defendant’s activities.
          A. Need more contact than for specific jurisdiction.
          B. The standard is vague.
III. Perkins v. Benguet Consolidating Mining Co. (Sup Ct, 1952)
          A. P sues D, a Philippine corporation, in an Ohio state court for claims related to her stock holdings.
          B. Court holds it would not violate due process to assert jurisdiction over the defendant in this case, as
              his activities in the forum state are “continuous and systematic” in running the company from Ohio
              while the Philippines was occupied during WWII.
          C. D’s activity in forum state is continuous and systematic, there’s PJ even on cause of action
              unrelated to that forum activity.




                                                                                                                 20
IV. Helicopteros Nacionales de Colombia v. Hall (Sup ct, 1984)
        A. P survivors of victims of a helicopter crash in Peru sue D corporation, owner of helicopter, in TX state
            court.
        B. Cause of action (crash) did not arise in/unrelated to TX.
        C. Ct: no general PJ
              1. contacts
                         a) purchase of helicopter in TX
                         b) CEO negotiated K in TX
                         c) Pilot training in TX
                         d) Payment from TX bank
              2. things that needed to happen to reach min contact
                         a) no biz operations in TX
                         b) nothing in stream of commerce
                         c) did not solicit biz there, no purposeful availment
                         d) no employee, office, property
                         e) product not used in TX
              3. In personam jursid requires sufficiently substantial and continous min contacts with the
                   forum state
        D. Brennan’s dissenting opinion
              1. activities in the forum state, but that they are “related to.” Distinction?
              2. Specific/general jurisdiction is more a spectrum than distinction, not very clear
              3. ‘but-for’ contact with TX, accident would not have happened

Other Bases for PJ
I. Power over Property (IR, QIR)
       A. Since Pennoyer, new forms of prop. (stocks, bank accounts, debts) put IR and QIR under scrutiny.
              1. New forms of prop. are mobile/move around.
              2. Difficult to say “where” this prop. is.
       B. Harris v. Balk (Sup Ct, 1905)
              1. no longer good law, b/c of Shaffer
              2. Action #1: Epstein v. Balk.
                        a) Harris owes Balk; Balk owes Epstein.
                        b) Epstein cannot obtain in personam jurd over Balk in MD, so he tries to get QIR by
                              attaching debt owed to Balk (Harris)
                        c) Epstein asserts QIR jurisd over Harris (Balk’s debt) wins a judgment in MD court
              3. Action #2:
                        a) Balk->Harris in NC court to get the debt owed
                        b) Balk collaterally attack Action #1 on no PJ grounds
                        c) NC court refuses to honor the judgment of the Maryland court on the ground that
                              MD had no jurisdiction to attach the debt as the situs of the debt was NC.
                        d) Amt of judgment is limited to the QIR property (Harris’s debt), that is res judiciata
                              b/c already trialed. Balk can bring action on the remaining balance
              4. Sup Ct: there is QIR jurisd
                        a) Situs of a debt is travels with the debtor, and is wherever debtor located
                        b) Situs of debt is the debtor. Debt goes with debtor, t/f debt is wherever Harris goes.
                              By attaching Harris, you attach debt
              5. Note: there is no relationship b/w Balk (D) and the forum, Maryland




                                                                                                                   21
        C. Shaffer v. Heitner (Sup Ct, 1977)
                1.   DE P filed (shareholder’s derivative) suit in DE court against D DE corporation with principle
                     place of business in AZ for an event in OR.
                2.   DE law provided situs of stock was DE.
                3.   Court seized the stock to assert QIR jurisdiction.
                4.   Sup Ct: no SJ
                            a) New standard for QIR jurisd
                                     (1) Traditionally, QIR and IR just requires presence at state.
                                     (2) QIR jurisdiction over D cannot be exercised unless the defendant had such
                                          “minimum contacts” with the forum state that in personam jurisdiction
                                          could be exercised over him.
                                     (3) If a direct assertion of PJ is invalid than so is an indirect one like QIR rem.
                                     (4) overrules Balk - Balk did not, but should have had, minimum contacts with
                                          MD
                                     (5) Applies the International Shoe due process standard to the assertion of
                                          QIR jurisdiction.
                            b) No min contact
                                     (1) D was never in DE
                                     (2) No state statute that assert jursid over the status of corp officers
                            c) Not a fair forum
                                     (1) No purposeful availment
                                     (2) No statute that treats acceptance of directorship as consent to jurisd
                5.   IR and QIR requires minimum contact, same standard as in personam
                6.   Note
                            a) most of the time, IR will meet ‘min contact’ since the property at issue is in state
                            b) some of the time, QIR will meet ‘min contact’
II. Presence
        A.     “tag”/transient jurisdiction - serve someone while they are in forum state.
        B.     Question of whether ‘tag’ jurisdiction is allowed is still unresolved
        C.     Most cts still try to fit case so that it meets Int’l Shoe standards
        D.     Burnham v. Superior Court (Sup Ct, 1990)
                1. D was served with divorce papers while visiting his children in CA
                2. D objected to PJ b/c there was no min contact, relied on Shaffer, all forms of PJ requires min
                     contact
                3. Sup Ct: Scalia: there is PJ
                              a) relies on the pedigree of presence to establish its validity:
                              b) the min contact test is meant to extend jurisd over the already established categories.
                                   In personam is always valid. Gold standard.
                              c) in the alternative, even if min contact is meant to be the new standard, presence
                                   satisfies test of “traditional notions of fair play and substantial justice” because it is
                                   traditional, everyone expects that-foreseesable
                4. Concurr: Brennan:
                              a) D avail himself with CA law, t/f enough for min contact
                5. Jurisdiction based on individual’s physical presence is enough for PJ, even if D has no min
                     contact with the state.
III. Consent
        A. Parties can consent to personal jurisdiction through their actions, by waiver, or by K.
        B. Consent by Law – Fiat
                1.   Constructive consent – (Hess)
                2.   Constructive presence:
                           a) Business registration laws - to do business in the state, you must register and
                                appoint an agent to receive process.
                           b) This standard is still being worked out in the courts.




                                                                                                                          22
         C. Consent by Appearance and Waiver of Objection
                1.Failure to file a motion under Rule 12(b) raising a defense of lack of PJ jurisdiction waives this
                  defense.
                          a) Insurance Corp. of Ireland v. Compagnie des Bauxites (Sup Ct, 1982)
                                    (1) D failed to comply with discovery rule, making it difficult for P to
                                         discovery info that would assert PJ over D
                                    (2) Ct: failure to comply with jurisdictional-related discovery may
                                         constitute implied consent to PJ
        D. Consent by Agreement/Contract
              1. Forum-selections clauses
                          a) set the forum for any disputes over a contract.
                          b) Forum selection clauses waive objections to PJ and venue.
              2. Bremen V Zapata (Sup Ct, 1972)
                          a) Parties (american and german company) had K with forum selection clause to have
                               all matters adjudicated in London
                          b) forum clause should be honored unless “enforcement would be unreasonable or
                               unjust, or…the clause was invalid for such reasons as fraud or overreaching.
                          c) Ct will enforce reasonable forum selection clauses, even if the clause mandates
                               jursid in a foreign ct
              3. Carnival Cruise Lines (Sup Ct, 1991)
                          a) Couple went on cruise, back of ticket says that all matters need to be adjudicated in
                               FL
                          b) Reasonable forum selection clauses are effective in imposing PJ
IV. Nation wide service process
        A. Extension of the Omni provision, allowing PJ for anyone who has sufficient min contact with the US
            as a whole, can essentially render Rule 4(k)(1)(a) useless
        B. 2 views
              1. Justice Stewart’s dissent in Stafford v Briggs suggest that nation wide service process for in
                  personam is ok
              2. Opposes: fairness is a local concept, burden on D is sensitive to distnace
        C. Ct has not decided definitively whether this is constitutional or not

                                Notice and Opportunity to be Heard
I.   Introduction
          A. Adequate notice of a lawsuit is part of due process rights. 14th amend
          B. Goal: our legal system is based on the adversary system. Beset way to get ‘right’ answer is for each
              party to present his case and help avoid error and arbitrariness; most likely to get the ‘right’ answer if
              both sides of a story are heard
          C. Components of Due Process:
                1. Power over the person (PJ)
                2. Perfection of the power over the person through correct service of process.
                3. Adequate notice (service of process to D) of the lawsuit.
                4. Opportunity to be heard.
          D. Defects in any of these factors means due process rights of a party are violated.
II. Notice
         A. Goal: provide D with adequate notice in a timely and effective fashion such that it allows D to come in
              and have opportunity to be heard
         B.   This area is very murky. No clear definition
         C.   Traditional standards
                1. Person: In personam: Personal delivery of service. Gold Standard
                2. Property: IR and QIR: seizure of property, and then some kind of notification by posting or
                    publication
         D.   Modern approach: Move towards a more functional approach




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         E. Mullane v Central Hanover Bank & Trust (Sup Ct 1950)
               1.   notice by publication fails to comply with due process where the names and addresses of the
                    parties are known and individual notice if that could have been sent
               2. NY Banking Statute: mgm’t of individual trust very expensive. to achieve economy of scale,
                    consolidate funds. Eliminated individual beneficiary rights. Statute provided newspaper
                    publication notice for any beneficiary who wants to challenge the trust
               3. P objected that such notice to beneficiaries was inadequate to afford due process under the 14th
                    amendment.
               4. Court: trad’l standard of notification is insufficient to meet due process requirements.
                            a) Regardless of what type of PJ was needed (IR, QIR, IP), must look at rights of D
                            b) created a single standard of notice: best notice practicable:
                                     (1) the standard is not that each potentially interested party actually gets
                                         notice; it is that there has to be some reasonable effort to notify them and
                                         that effort has to be reasonably geared to how hard it is to notify someone
                                     (2) incorporates balancing test: balance interest of D and burden of giving
                                         notice to every person that may have some interest
                                     (3) some will be left out. Give raise to due process by proxy. If individual of
                                         group is not represented, trust that other members of the same group will be
                                         representing that interest anyway. Ideas behind class action suits
                            c) personal service is not required for all. service depends on category
                                     (1) Group #1: identity and location known: individual mailing
                                     (2) Group #2: identity is known, location is not: best effort w/due diligence
                                     (3) Group #3: ID and Location unknown: publication suffices for notification
        F. Mennonite Board of Missions v Adams (Sup Ct, 1983)
               1. question IR seizure for selling mortgaged property for nonpayment of taxes
               2. Traditional method is seizure and publication of real property used, as in Pennoyer
               3. follow Mullane : this is not the best notice practicable; should be in hand or mail to be
                    sufficient
               4. this case has little influence. States still use IR and QIR service rules
        G. Greene v Lindsey (Sup Ct, 1982)
               1. eviction notice on front door may not be sufficient b/c in some cases, like this one where it’s a
                    housing project, notice can be torn down
               2. follow Mullane: need a more reliable method. should mail to tenants
               3. Highly fact sensitive; must look at particular details of each case.
III. Opportunity to be Heard
        A. Goals:
               1. to provide an opportunity for D to state case by a set of procedures or proceedings conforming
                    with certain standard of fairness
               2. avoid error and arbitrariness
        B. These cases are about deprivation of property in public and private cases
               1. Public cases:
                            a) Was there Jurisdiction?
                            b) Forfeiture
                            c) Government Benefits
               2. Private Law
                            a) Was there Jurisdiction?
                            b) Secure property – judgment (Connecticut v. Doehr)
                            c) Secure property for creditor’s partial interest
                                     (1) Loans/liens/mortgage/collateral
                                     (2) Purchase money loans (for anything you want)
                                     (3) Installment sale (Fuentes)
                            d) execute judgment
        C. Ex Parte Proceedings: only rely on one party; disfavored and discouraged




                                                                                                                  24
D. Fuentes v Shevin (Sup Ct 1972)
      1.  to comply with procedural due process, notice and opportunity to be heard must be provided
          prior to seizure of any protected property interest
      2. 2 similar cases where P was late in installment payments. Merchant seized property in repelvin.
          Post hearing was automatic in FL, but optional in PA
      3. due process applies to all property (household items in this case), partial and temporary
                  a) partial: P didn’t own all property. Just posessory interest
                  b) temporary: after hearing, if seizure was determined to be wrong, then P would get
                       property back
      4. inadequate procedures, which are likely to produce errors
                  a) ex-parte proceedings: only 1 side was heard. P had no opportunity to be heard.
                  b) temporal: D only get hearing AFTER property been seized. Need to have opportunity
                       to be heard before seizure
      5. Only extraordinary circumstances justify the postponement of a party’s opportunity to be heard
                  a) Directly necessary to secure important governmental or public interest, bank failure,
                       mislabeled drugs
                  b) Special need for prompt action to protect property, like a yacht
                  c) State takes action for public policy persons; person making the determination is a
                       government official responsible for justifying.
E.   Sniadach v. Family Finance Corp. (Sup Ct, 1969)
      1. Court holds that pre-judgment garnishment (seizure) of wages violated due process.
F.   Mitchell v W.T. Grant (Sup Ct, 1974)
      1. statutes allowing for attachment or sequestration w/o prior adversarial hearing do not violate
          procedural due process, as long as sufficient procedural safeguards exits
      2. Court upheld a seizure of property w/o hearing, sequestration
      3. Distinguish from Fuentes:
                  a) Creditor makes required showing before a judge, not a clerk.
                  b) Documentary proof is needed to satisfy a more narrow standard. Fuentes required D
                       to just say property ‘wrongfully detained’, here there was specific default and
                       vendor’s lien. More objective evidence
      4. still ex-parte.
G.   Mathews v Eldridge (Sup Ct, 1976)
      1. P commenced this suit after being denied continued Social Security disability payments; argued
          he was deprive of due process. Gov’t benefits are form of property.
                  a) Court in Goldberg v. Kelly said once these benefits are passed into law, they become
                       a kind of prop. interest entitled to protection. Gave positive rights (gov’t to provide
                       citizen with $ for basis for living)
      2. ct used this case to clean up confusion in this area
      3. 3 part test to determine whether procedures for an opportunity to be heard are constitutionally
          sufficient:
                  a) nature of Private interest involved.
                            (1) temporary or permanent deprivation
                            (2) partial or total deprivation
                            (3) How important is the property at issue to the individual
                  b) Risk of erroneous deprivation and the value of more add’l procedures and
                       safeguards being proposed
                  c) Cost/burden of gov’t to provide add’l procedure.
      4. apply test to this case
                  a) pass test: did not violate due process
                  b) private interest not that great.
                            (1) Temporary deprivation: if after review, it is shown that denial was
                                 improper, get retroactive payment
                            (2) Total deprivation: deprive of all benefit
                            (3) Unlike welfare benefits in Goldberg, disability benefits does not go to
                                 support family
                  c) Low risk of error in this procedure.
                            (1) Facts are easily documented; based on medical evidence and doctor. No
                                 need for personal hearing


                                                                                                           25
                             (2) Timing ok and not ‘ex-parte’. P given chance to respond to the tentatively
                                 terminated notice.
                  d) Pose add’l burden on gov’t
                             (1) More resources needed (to be taken from funding for benefits) to extend
                                 benefits until hearing
                             (2) Recoupment problem if P didn’t really deserve $
                             (3) Since not everyone will seek review, increase resources required for add’l
                                 hearings
H.   Connecticut v Doehr (Sup Ct 1991)
       1. where the risk of erroneous attachment and the harm to the aggrieved party outweighs the
           interests of the party seeking attachment, property cannot be attached w/o notice and a
           hearing
       2. D asserts a pre-judgment attachment against the residence to secure judgment for an unrelated
           dispute for assault and battery.
       3. Connecticut statute allowed such attachment through ex parte proceeding.
       4. apply Mathews test: extend last prong of test to include private disputes
                  a) failed test: violated due process
                  b) Private interest involved:
                             (1) A person’s home is important to him.
                             (2) A lien on the house can be disruptive, impair ability to alienate property,
                                 taint credit rating
                  c) Risk of Error
                             (1) Procedure is ex parte (one-sided inquiries are not good).
                             (2) Does not matter that judge issues the attachment writ
                  d) Compare interests of P with D
                             (1) Interests of the D are too minimal to justify.
                             (2) Real prop. (home) is not in danger of being moved.
                             (3) Only concerned about movable prop. disappearing.
                             (4) Also, in every case there will be a full post-deprivation hearing, so there is
                                 really no additional cost to moving it to pre-deprivation.
I.   US v Daniel Good Real Prop (1993)
       1. Federal statute provides for forfeiture of residence. relating to drug crimes.
       2. Good involved in drug crime, and the gov’t initiated IR proceeding against Good’s prop.
       3. dual purpose for seizure: seize tainted property, establish jurisdiction, and secure judgment
       4. Applies 3 part Mathews Test to this forfeiture action:
                  a) Fail test: violated due process
                  b) Good’s interest in his house is significant.
                  c) Ex parte seizure creates an unacceptable risk of error.
                  d) No compelling need shown by government for prompt action.
                             (1) In this case, “real prop. cannot abscond.”
                             (2) Government had other means, short of seizure, to protect its interests in the
                                 prop.
                             (3) Already provide a full post-deprivation hearing, so just moving hearing up.
                             (4) This seizure of prop. is not one of extraordinary circumstances to justify the
                                 postponement of notice and hearing
       5. holding doesn’t make much sense. One way to provide notice (to establish jusrid) is to seize
           property. Yet, this case says that you have to provide notice b/f you seize property. Circular
           reasoning
                  a) overturned Pennoyer. Which established that seizure to establish jurisd. need
                        attachment + publication
J.   seizure of property to establishing jursid is NOT dead
       1. non-residential property: no need for pre-seizure notice, post seizure hearing is always required
       2. gov’t seizure of residence: pre-seizure hearing




                                                                                                             26
                                                        Venue
Transferor  Transferr
I. Introduction
        A. SMJ->PJ->VENUE->FNC Another way to protect D
        B. Venue started as common law and then got codified in §1391
        C. Focus of Venue:
              1. Convenience of the parties involved (particularly D’s) and system
              2. Relation between litigated events and place of trial.
        D. Venue has sub-constitutional status:
        E. Venue can be waived if D does not object. Objections in Rule 12(b)(3)
        F. Balancing of practicality, rather than substantive rights
              1. Burlington Northern Railroad Co v. Ford (1992)
                           a) Venue is allowed to discriminate against in-state and out-of state
                           b) Employees sue RR under the Federal Liabilities Act in Montana
                           c) Ct denied D motion to have venue changed b/c D is out of state and does not have
                                 same venue rights as in-state D according to MT laws
                           d) Sup upheld the state venue rules. said states have wide latitude to structure its venue
                                 laws.
II. Venue Provision: Define proper venue §1391
        A. §1391 (a) diversity cases, allow for venue in:
                 a)              (1) a judicial district where any D resides, if all Ds reside in the same state
                            if there is only 1 D, then venue is proper in district where that 1 D resides
                 b)              (2) a judicial district in which a substantial part of the events or omissions giving rise
                      to the claim occurred, or a substantial part of property that is the subject of the action is
                      situated
                            the event is the entire event of the claim, not just the event that involves a particular
                                 D
                 c)              (3) fallback provision: a judicial district in which any D is subject to personal
                      jurisdiction at the time the action is commenced, if there is no district in which the action may
                      otherwise be brought.
                            ‘no other district where action can be brought’ = no other district where there is
                                 venue OR no other district where there is venue and PJ (wax likes)
        B. §1391 (b), case not based on diversity, allow for venue in:
                 a)              (1) same as 1391a
                 b)              (2) same as 1391b
                 c)              (3) fallback provision: a judicial district in which any D may be found, if there is no
                      district in which the action may otherwise be brought
                            ‘may be found’ = PJ, min contact, OR place of service
        C. §1391 (c) residence for corporation for the purposes of (a)(1) and (b)(1)
              1. Deem to reside in district which has PJ at time action is commenced
              2. If more than 1 district in state, then whatever district has sufficient contact to confer PJ if it were
                   a separate state (Shoe analysis)
              3. If no such district, then reside in district which has most significant contact
              4. Notes:
                           a) venue is still proper for corp D if falls under (a)(2), (a)(3), (b)(2), (b)(3)
                           b) Person: No specification in this statute. Vary by state
                                      (1) Follow definition used in PJ and SMJ: place of domicile = ‘reside’ here
                                      (2) Adopt the state definition. reside under state law=’reside’ here
                                      (3) interpret the same as corporations: have to have minimum contacts
                                      (4) if you have any dwelling where you spend substantial time
        D. §1391 (d): an alien can be sued in any district
              1. §1332 says he is a citizen of any state he is domiciled in – true for SMJ, but not for venue
        E. §1391 (e) D is officer, employee, agency of US, or US gov’t, suit can be brought in district where
              1. D resides
              2. substantial part of the events, omission or property is
              3. P resides if no real property involved in action


                                                                                                                        27
         F. 3 exceptions where 1391(a) and (b) do not apply:
               1. forum selection clause, generally enforceable
               2. ‘except as otherwise provided by law’: some federal statute specify how to decide forum, like
                  copyright, actions against federal officials
               3. ‘local action’: early common law dictates that cases where there is certain special interests
                  associated with land, must go to district where land is located
III. Change of Venue: §1404 and §1406
        A. Who make motion?
               1. Made upon motion by P or D
               2. Ct sua sponte: Some courts held that Ct cannot transfer on own initiative. However, arguably,
                  §1404 allows for ct to transfer for interest of justice
        B. Who decides motion?
               1. transferor court, b/f allowing the transfer, is to decide whether transferee forum has met these
                  requirements
               2. the transferee ct, once it gets the case, can review to see if the transferor ct had it right
        C. Transfer to federal ct only. (Only allow to give to state court through removal)
        D. Party moving for change of venue has the burden of showing that another venue is more appropriate
        E. §1404: Transfer ONLY. Case started in a proper venue, PJ and SMJ (just want an even better venue)
               1. (a) Court may transfer to any other district where suit might have been brought, for sake of
                  Convenience of parties and witnesses or in interest of justice
               2. jursid requirements
                          a) transferor forum: venue, PJ, SMJ
                          b) Transferee forum: venue, PJ, SMJ
               3. SL of the transferor always apply
               4. Judge has lots of discretion when deciding to transfer under this
               5. Partially codified doctrine of Forum Non Conveniens
               6. take law of the transferor (original forum) with you. Van Dusen Rule
                          a) Van Dusen v Barrack (Sup Ct 1964)
                                    (1) Not transfer of law, just transfer of courtroom and geography. To prevent D
                                         from shopping for law. However, this allows P to forum shop. P File suit in
                                         forum that is inconvenient but has favorable law.
                                    (2) Only applies to diversity cases. Does not apply to cases with federal
                                         questions
                                    (3) Take law of transferor (original forum) with you
                          b) Ferens v John Deere (Sup Ct, 1990)
                                    (1) magnify problem Van Dusen created
                                    (2) Allow P to transfer case from a place with a better statute of limitation to a
                                         state where statue of limitation has been run out
                                    (3) Bad opinion, but still good law
               7. Both transferor and transferee forums must have proper venue, PJ, and SMJ (i.e. this is a court
                  where action could have been brought, but there is a better place for this action):
                          a) Hoffman v Blaski (Sup Ct, ,1960)
                                    (1) A federal court in which suit was properly commenced was not entitled
                                         under 1404(a) to transfer a case to a district in which the P could not have
                                         properly commenced suit
                                    (2) D moves to transfer case to IL under § 1404(a). strange b/c P is the one in
                                         IL. D is in TX
                                    (3) § 1404(a) transfer is permitted only if the transferee ct would have venue,
                                         PJ, and SMJ on the date the complaint was filed in the transferor ct.
                                    (4) § 1404(a)’s requirement that the action could have been brought in a court
                                         applies at time the suit was originally brought, not at the time of transfer,
                                         even if D would waive PJ or venue defense
                                    (5) Action could not have been brought by P in IL originally.
                                    (6) To allow such transfer would undermine the principle that the P is the
                                         master of his claim, power to chose forum. Open opportunity for D to
                                         harass and oppress P, turning the shield of § 1404(a) into a sword.
                                    (7) Dissent: judge still has discretion to transfer base on justice served, t/f D
                                         will not automatically get the transfer

                                                                                                                   28
         F. §1406: Transfer OR dismissal. Case started in wrong venue
               1. (a) Dist Ct in which a case is filed that has wrong venue or in interest of justice, may dismiss
                  case or transfer case to other district where case could have been brought
             2. (b) shall not impair jusrid of dist ct in cases where party does not interpose timely and sufficient
                  objection to venue
                         a) purpose: to prevent the injustice of time running out of the cause of action, after the
                               court gets to noticing that there is a problem with the venue. Like tolling provision in
                               1367(d)
                         b) majority rule: if date file is w/in statute of limitation in transferee forum, then it’s ok.
                               It doesn’t matter that the statute of limitation has ran by the time case gets transferred
                               or that it exceeded transferor forum. This is for 1406 only.
                         c) Minority rule: apply longer SL of transferor forum
             3. Jurisd requirements
                         a) Transforer forum: no venue, maybe PJ, SMJ
                         b) Transferee forum: venue, PJ, SMJ
             4. NO Van Dusen rule.
             5. Goldlawr v. Heiman (Sup Ct, 1962)
                         a) Case where the original forum lacked both venue and PJ
                         b) Ct allowed transfer under 1406
                         c) Bad: difference in treatment: case where there is venue, but no PJ (dismiss), but case
                               where there is no venue but there is PJ (transfer)
IV. Forum Non Conveniens: DIMISSAL only
        A. Who make motion?
             1. D only
        B. Who decides motion?
             1. transferor court
        C. jurid requirements
             1. transferor: venue, PJ and SMJ
             2. alternative forum: no venue, no PJ, no SMJ necessary
        D. substantive law of alternative forum applies
        E. ct may ask D to waive right to venue, PJ and SL, b/f allowing FNC
        F. Reserved to cases where the alternative is in a foreign court
             1. state has own FNC doctrine to dismiss case since state ct cannot transfer to another state court,
                  have to use FNC to dimiss
        G. if you want to FNC to another country, but you are at a forum w/o venue, must 1406 it to a district with
           venue and then FNC it
        H. Piper Aircraft v Reyno (Sup Ct, 1981)
             1. the fact of a substantive law being less favorable to P is an alternative forum should not be
                  conclusive or even substantial weight in applying the doctrine of FNC
             2. Scottish P sued D for damages from a plane crash in Scotland.
             3. After removing and transferring to PA, D’s moved for dismissal on the ground of FNC
             4. Alternative forum is available; Ds agree to be sued in Scotland.
             5. Supreme Court
                         a) upholds FNC dismissal to Scotland, applying a three part test of considerations,
                               and finds weight of factors points to Scotland as the appropriate forum.
                                    (1) Not case where there is no remedy, just less of it, in the alternative forum
                                    (2) Ordinarily, strong presumption in favor of P’s choice of forum which may
                                          be overcome only when the convenience factors clearly point to trial in the
                                          alternative forum.
                                    (3) BUT, the presumption applies w/less force when the P is from a foreign
                                          country.




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V. 3 part tests (developed in Piper) – Used when considering 1404 or FNC problems
       A. P specific factors
               1. Connection to the forum (geographic); weight given to P’s choice of forum.
               2. Presence of evidence and witnesses for P’s case – ease with which P can built her case.
               3. Substantive law concerns. less favorable P law is not dispositive unless complete inadequate
                    where it provides no relief (only for FNC)
       B. D specific factors
               1. Presence of witnesses and evidence for D’s case. Service rules for witness
               2. Third-party practice (if D needs to implead a party).
       C. Public or forum-related interests:
               1. Burden on the jury/court (familiarity with the law to be applied) – jury confusion
               2. Event of local concern or interest – center of gravity. Public interest
               3. Connection of events/persons to the alternative forum.
       D. dist ct’s discretion to weigh all these factors and should only be overrule if dist ct abused its discretion

ERIE (for diversity cases or suit with state law claim)
I. Choice of Law Problems
         A. Up to now, question was which sovereign’s courts?
               1. SMJ - federal or state court?
               2. PJ and Venue - geographical - where do you take the case?
         B. Two Choice of Law problems:
               1. Horizontal: Law of which state applies? (Conflict of laws rules)
               2. Vertical: Choosing between state or federal law? (Erie doctrine)
         C. 2 types of “law”
               1. Procedural: steps that one must follow to resolve legal dispute. About the allocation of power
               2. Substantive: on the merits of the case, about the rights, duties, obligations and the rules for
                    relief for failure to do those rights, duties, and obligations
II. Statutory Underpinnings
         A. Constitution: gives congress power to create separate rule for federal rules
               1. Art VI. Supremacy Clause. Constitution and federal law should be supreme of the land
               2. Art III, 1st sentence: congress may create lower courts
               3. Art I, Section 8: Necessary and Proper Clause. make all laws ‘necessary and proper’ for
                    exercising the power granted in constitution
         B. § 1652 Rules of Decisions Act (RDA)
               1. Laws of the several states shall be the rules of decision in civil actions in the courts of the United
                    States, in cases where they apply, unless the Constitution or federal law provides otherwise.
               2. state rules will apply unless something in federal statutes or the constitution is to the contrary
               3. Dates back from the Judiciary Act of 1789.
         C. § 2072 Rules Enabling Act (REA) (1934)
               1. (a) Congressional grant of authority to the Supreme Court to “prescribe general rules of practice
                    and procedure” for cases in federal courts.
               2. (b) limits that power: “such rules shall not abridge, enlarge or modify any substantive right.”
               3. As a result of the REA, Sup Ct appointed advisory committee who created FRCP




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III. Pre-Erie cases
         A. Swift v. Tyson (Sup Ct, 1842)
                1. P sue to collect note given to him by land speculator who got note from D as exchange for selling
                     land that wasn’t his. D refuse to pay, claim that D was induced into giving note in fraud
                             a) NY common law: D was not required to pay. Speculator fraud is defense
                             b) Federal “common law”: D would be required to pay
                2. Story: idealist view
                             a) Interpreted “law of several states” to only mean state statues, not common law.
                             b) There is an ideal law out there, up to judge to find it. making federal common law
                                  will lead to that process
                             c) Hopes that by federal judges making law, state judges will follow. This will lead to
                                  ideal uniformity of law
         B. Holmes: positivist/legal realist view, disagrees with Story
                1. Law is made, not found. Law is what the sovereign says it is. States have the power to make law
                     and t/f state CL is also laws
                2. Very conscious of federalism and separate of power
         C. Negative consequences of Swift:
                1. Forum Shopping:
                             a) If out of state P, can choose b/w federal and state law
                             b) D becomes passive victim.
                             c) Ironic, b/c the whole point of diversity is to protect out of state D
                2. the ideal never happened. States judge did not abandon their own law making, non-uniform laws
                3. the regime authorized by Swift was unconstitutional; simultaneously violated separation of powers
                     and federalism
                             a) federalism: limitations of Art I, Section 8 on what federal gov’t can legislate. Ct is
                                  overstepping this by making its own law
                             b) separation of power: congress makes law, court interpret them
         D. Black & White Taxicab v. Brown & Yellow (Sup Ct, 1928)
                1. magnified the problems with Swift; classic case of forum shopping.
                2. P had exclusivity contract with D. P sued D for breach of that K. to get diversity so that P can sue
                     in federal ct, P (originally a KY corp) re-incorporated to in TN
                             a) TN common law: does not allow exclusivity contract
                             b) Federal common law: allow exclusivity contract
                3. Sup Ct: found that there was no fraud with re-incorporation and allowed this. Essentially,
                     allowing forum shopping
                4. dissent: Holmes
                             a) Time to overrule Swift
                             b) the fantasy of law that Swift is based on will never happen. It was unconstitutional
                                  anyway (federalism and separation of powers)
IV. Erie R. Co. v. Tompkins (Sup ct, 1938)
         A. P hit by D’s RR while walking on D’s track. P sue for injuries
                1. PA common law: deny P recovery, based on trespasser standard
                2. Federal common law: allowed P recovery, based on ordinary care to pedestrians
         B. Sup Ct: Brandeis
                1. mirrors Holmes’s dissent argument in Black & White Taxi
                2. overruled Swift
                3. RDA applies to both statutory and state common law.
                4. Federal courts must apply the substantive law of the states in which they sit, whether statutory
                     or judge-made
                5. Rationale: Twin aims:
                             a) Eliminates forum-shopping and disparity between federal and state rulings.
                             b) Eliminates discrimination against in-state P’s – inequitable administration of the
                                  law.
                                       (1) Example of something that does not fall into this category: judge writing vs
                                            reading jury instruction




                                                                                                                    31
V. Problems of Erie
        A. At time when Erie was decided, federalism is no longer a big concern (New Deal Era, where there is a
            lot of gov’t power). However, separation of power is there a concern
        B. Did not mention anything about procedural law? Should state or federal procedure laws control?
VI. Evolution of Erie
        A. Guaranty Trust v. York (Sup Ct, 1945) RDA case
              1. P is shareholder of trust. D is the trustee. P sue for breach of fiduciary duty.
                           a) State statue: bars suit, exceeded state SL
                           b) Federal judge made rule, allows suit to continue
              2. Sup Ct: Apply state SL
                           a) A state SL is a substantive law applicable to a state claim litigated in federal court.
                           b) Court develops the “outcome determinative test”, measured from time P could have
                               made forum shopping choice
                                     (1) If the result of the case be affect if state law was disregarded, then state
                                         law, including procedural rules, must apply
                                     (2) This case is outcome determinative
                                              (a) State rule: SL ran, no case at all
                                              (b) Fed rule: case can go to trial
              3. SL, for erie purpose, is always substantive. Some still hold on to the substantive vs procedure
                   difference and argue that SL should be considered substantive b/c to extend SL is to give action
                   longer rights, t/f more substantive rights to P
        B. Byrd v. Blue Ridge Rural Electric Cooperative (Sup Ct, 1958) RDA case
              1. P injured while on job as contractor for D, electric company. P sue D for neg. Need court to
                   determine whether P was is considered ‘employee’. If so, then bar from suing b/c there is worker
                   compensation
                           a) SC common law: judge should decide
                           b) Federal judge made rule: jury should decide (also in 7th amend, but Sup Ct stopped
                               short of saying that)
              2. Sup Ct: apply Federal rule
                           a) Federal judge-jury function prevails over a conflicting state law that allocates the
                               factual determination to a state judge → long-standing and important federal
                               interest in jury trials (7th Amendment).
                           b) If there is a strong federal policy relating to the way the fed courts do their biz,
                               then fed rules apply
                           c) modifies the outcome determinative test to allow for consideration of legitimate
                               federal policy interests.
                                     (1) First question: “Is the rule difference outcome determinative?”
                                              (a) If yes, presumption in favor of state rule unless federal interest.
                                              (b) If not, -> apply the federal judge-made rule.
                                     (2) Second question: “If the rule difference is outcome determinative, is there
                                         a strong federal interest in following the federal rule?”
                                              (a) If yes, -> apply federal rule
                                              (b) If no -> apply state rule.
                           d) amt of forum shopping is minimal, certainly less then in York
                           e) Note that court could have said that 7th amend requires jury and under RDA, if
                               constitution grants power, then federal rule always wins. Ct didn’t do this b/c 7 th
                               amend was in disarray at that time




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C. Hanna v. Plumer (Sup Ct, 1965) REA case
      1.   P sue D, executor of deceased, for personal injury from car accident. SL had run out, so if P had
           to re-service, case would not be able to continue since it’s outside of the SL
                   a) MA law: requires in person service of process
                   b) FRCP: Rule 4(d)(1), service left with responsible person at D’s residence (left with
                       D’s wife)
       2. Sup Ct: apply FRCP
       3. Hanna I
                   a) Modified Outcome Determinative Test: outcome determinative in light of the
                       concerns of erie
                            (1) Forum shopping
                            (2) inequitable administration
                   b) if view from the perspective of parties in this case. It is outcome determine b/c P
                       cannot bring claim if follow MA rule, but P can continue with suit under FRCP
                   c) If view from perspective of all cases, then it is not outcome determinative and would
                       not lead to forum shopping b/c P would have known which service process to use
                       and the outcome of the case would be the same regardless
       4. Hanna II
                   a) Constitution, Art I, section 8->Congress to enact REA->Sup Ct power to create
                       FRCP
                   b) Even if FRCP affect outcome of case, it applies because it trumps the state rule (Art
                       VI: Supremacy Clause).
                   c) Rules Enabling Act - the rules are a constitutionally valid grant of Article I, Section
                       8 power to the courts to make rules (broad reading)
                   d) If a FRCP is in direct conflict w/state law, the FRCP controls unless the Rule
                       violates the REA (by abridging, enlarging, or modifying a substantive right) or the
                       US Constitution.
                   e) If it’s arguable procedural, FRCP wins. Only if issue is squarely substantive, then
                       state wins
D.   Stewart Organization, Inc. v. Ricoh Corp (Sup Ct, 1988) REA case
       1. P and D have contract which included forum selection clause. P sue D for breach of dealership
           agreement. D move to transfer case to forum specified in forum selection clause
                   a) AL law: does not enforce forum selection clause
                   b) Federal Statute: USC§ 1404, allow change of venue
       2. Sup Ct: apply federal statute
                   a) First question: is the federal statute “sufficiently broad” to control the issue before
                       the court (is there a direct collision)?
                            (1) State law only looks at one factor, forum selection clause
                            (2) 1404 looks for many factors, forum selection clause being one of them, to
                                 decide whether to grant transfer
                            (3) Thus, federal statute is sufficiently broad to cover this issue.
                   b) Second question: is this a valid exercise of Congress’ power? Apply Hanna 2
                       analysis
                            (1) Power of Congress to enact this procedural statute through REA is found
                                 Art I, Section 8: Necessary and Proper Clause.
                            (2) This rule is “arguably procedural.”
                            (3) Does not abridge or modify substantive rights” provided under state law




                                                                                                          33
E. Walker v. Armco Steel Corp (Sup Ct, 1980) RDA case
      1.  federal and state rules are not always absolutely inconsistent. Can have different purposeful
          meaning
      2. P is carpenter who injured himself from nail maded by D. P sue for neg. In between the time of
          filing and service, SL ran. D move to dismiss on grounds that SL has ran
                  a) OK: action commence at time of service
                  b) FRCP: Rule 3: action commence at time of filing
      3. Sup Ct: applies state law b/c there is no conflict with federal law
                  a) In York, SL goes to substance of action
                  b) However, Application of Hanna 2 test is premised on a ‘direct collision’ b/w federal
                      and state rules
                  c) Here, there is no direct collision:
                           (1) Federal Rule’s ‘commencement’ only starts the clock for various
                                requirement of Rules.
                           (2) ‘commencement’ Does not affect state SL
                           (3) State’s ‘commencement’ is meant to talk about SL
                  d) Because no direct collision, no need for Erie analysis, and state law applies. Since
                      court determined that state law deals with SL in this case
F.   Klaxon Co. v. Stentor Electric (Sup Ct, 1941) RDA case
      1. Choice of law question.
      2. straight forward application of York and Hanna 1
      3. Court holds that to promote uniform application of substantive law within a state, federal courts
          must apply the conflict-of-laws rules of the states in which they sit. Instead of making their own
          choice of laws rules
      4. This prohibits horizontal forum-shopping (as opposed to vertical).




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VII. Analyzing Erie Problems
        A. Is it an Erie Question?
               1. is there a state rule and federal rule that both apply to the same issue
        B. is matter clearly substantive?
               1. Yes: apply state law (except when it conflicts with Constitution)
               2. No: proceed
        C. Determine if there really is a conflict between federal and state law (Walker)
               1. If yes, proceed to categorical analysis below.
               2. In not, then the state law applies.
        D. Determine which type of federal rule (just need to worry about the federal side. State side can be
             statue, constitution or common law, doesn’t matter)
               1. Federal Constitution
                            a) Federal Constitution always trumps state rule (substantive and procedural)
                            b) Similar to the question in Byrd (though Ct never directly said it)
                            c) Be careful. If it involves a judge verdict of $5000 in malpractice. the constitution
                                 only talks about jury, the nature and amt of damages is substantive and is governed
                                 by state law where erie wins. This would turn into jury verdict, but judge to cap at
                                 $5000
               2. Statutory (Steward)
                            a) Is statute a valid exercise of Congressional power?
                                      (1) Art VI. Supremacy clause
                                      (2) Art I, section 8: Necessary and proper clause
                            b) Does it meet REA?
                                      (1) Does the rule regulate procedure (“arguably procedural”-phase from
                                           Hanna II)?
                                      (2) If it does, does the rule “abridge or modify substantive rights” provided
                                           under state law?
                                                (a) If you have a case where state law is broader in scope than the
                                                    federal rules(anti-Stewart), then have to apply state law
                            c) Statutes will almost always pass this test.
               3. FRCP (Hanna 2)
                            a) Similar analysis as for Statutory.
               4. Federal judge made/common law rule (York, Bryd, Hanna 1)
                            a) Is it outcome determinative? (York)
                            b) If it does, does this change implicate the twin aims of Erie: (Hanna 1)
                                      (1) Discouraging forum-shopping
                                      (2) Providing for equal administration of the laws.
                            c) Is there important federal policy consideration? (Bryd)
VIII.   Erie Today
        A. Federal courts required to follow state substantive law, but follow federal procedural law, in
             diversity cases.
        B. Certification: Some states allow federal courts to certify questions of state law to the state supreme
             court, to clarify state law position on an issue.
        C. If there is no State Sup Ct ruling:
               1. federal courts should defer to lower state court ruling. however, state court ruling is not binding.
                    Federal ct can only ‘guess’ what the State Sup Ct would do. Only State Sup Ct ruling is binding
                    authority of the laws of that state
               2. if federal ct gets another case, should follow it’s own previous ruling UNLESS since its last
                    ruling, the State Sup Ct handed out a ruling
               3. lower state court does not have to follow federal court decision on issues of state law
        D. Supp Jurisd: if primary claim arises out of federal law, and state claim attached. Need to analyze 2nd
             claim under erie
        E. Result of Klaxon and Erie
               1. Vertical uniformity: enhanced. People no longer choosing b/w federal and state ct of same state
               2. No Horizontal uniformality: destroyed. Instead, people choose b/w federal ct of one state to
                    federal ct of another state (since fed ct has to apply state ct’s choice of law rule)



                                                                                                                     35
IX. Federal Common Law
       A. Technically, there is no such thing
       B. There is federal common law for federal procedures (that’s what FRCP comes from)
       C. Substantive Federal Common Law: in certain discrete areas out of necessity:
             1. preservative
                         a) federal government has control: authority over the military; international relations;
                              immigration; presidential powers; banks, red cross, etc…basically matters that
                              concern the whole nation
                         b) the courts have tended to allow judges to make comprehensive rules (even to the
                              point of supplanting state rules) if they feel it is necessary to preserve the power that
                              is regulated by congress and make gov’t function properly
             2. pre-emptive
                         a) rules for bodies of law that are enacted to pre-empt any state laws that may conflict
                         b) ex: Federal Labor Law (national Labor relations Act) - Courts created special federal
                              contract rules to promote uniformity under the Act.
             3. Interstitial:
                         a) special function of the government, as in treasury and commercial capability
                              (contractor, or granting contracts) Clearfield
                         b) Most common in broad federal statutes (i.e. Sherman Antitrust Act).
       D. Clearfield Trust v. United States (1943)
             1. Federal government acting in a money-disbursing capacity. U.S. sues D to collect money on a
                 fraudulently endorsed federal check, which the D had guaranteed all endorsement. D raises the
                 defense of notice delay (U.S. took too long in notifying).
                         a) State rule: US bar from recovery due to unreasonable delay in notification
                         b) Federal rule: does not bar
             2. Sup Ct: apply federal rule when related to US gov’t function (writing checks)
                         a) Authority to issue check arose from Constitution.
                         b) Rights, duties and obligations should also be governed by Constitution.
                         c) creating federal common law promotes uniformity, rather than U.S. facing 50
                              different rules (but Citicorp doesn’t need uniformity).
             3. (Wax:) Decision conflicts with REA, unless congress or constitution ‘otherwise provided’, state
                 law should control. However, can think of ‘otherwise provided’ to mean more than express
                 enaction. Since congress gave US power to write check, it also implied power to federal ct to
                 make federal common law

                                                    Pleadings
I.   Introduction
          A. FRCP meant to get rid of technical demands of each state’s pleading rules. move towards a more
              functional approach
     c. Purposes of Pleading: do you need both? If not have both, then have to amend? So ct can ask you to
          amend even if D didn’t
          i. Notice to D– notice pleading.
               What are the events that P is talking about, what did D do wrong
               Was there enough to allow D to frame his answer (rise Defenses, make motions to make)
               Allow D time for preparation
               How do conduct discovery.
               What to present at trial.
          ii. Notice to Ct - elements pleading – signaling function.
               Indicate to ct that you are ready to prove your case
               What issues will be on trial vs what issues are already agreed upon
               Whether ct has jurisdiction over case
               Allow court to Jettison irrelevant issues, 12b6(failure to state claim), 12c (judgment on the
                    pleadings)
               Limited role for judge to play (summary judgment).
     d. Unlike SMJ, ct does not have sua sponte, relies on parties to bring up motion (but then how do you tell
          party to file so ct knows what is going on?)


                                                                                                                     36
   e. General Flow: affirmative pleadingopportunity to answer (position assertion of new facts, affirmative
       defenses, counter-claims)P answer counter-claim, (if any)P assert cross-claim (if any)
   f. Two ways to cure defects in the pleadings:
      i. Dismissal without prejudice with leave to amend pleadings.
      ii. Rule 12(e) motion for a more definite statement.
II. FRCP
       A. Rule 1: Rules construed and administered to secure just, speedy and inexpensive determination of
            every action.
       B. Rule 3: Civil action is commenced with filing of the complaint; marks the beginning of the time
            requirements under the Rules.
       C. Rule 7: Pleadings Allowed; Forms of Motions
             1. (a) Pleadings restricted to complaint and answer; reply to counterclaim, cross-claim and
                  answer; third-party complaint and third-party answer; court may require a reply to answer
                  or 3rd party answer
             2. (b) Application to the court for an order shall be made in the form of a motion, in writing unless
                  made during a hearing or trial:
                          a) State with particularity the grounds motion is based on
                          b) Set forth the relief or order sought.
             3. (c) demurrers: abolished (a way to get rid of complicated cumbersome rules, like the ones used
                  in Tickle)
       D.   Rule 8: General Rules of Pleading
             1. (a) Claims for Relief: Complaint shall contain: (Dioguardia, Lodge, Garcia)
                          a) Short and plain statement of the grounds upon which court’s jurisdiction depends.
                                    (1) Facts as I see them, as applied to law is this
                                    (2) Law in fact applies
                          b) Short and plain statement of the claim showing the pleader is entitled to relief (relief
                               in the alternative is allowed).
                          c) Demand for judgment of the relief the pleader seeks.
             2. (b): party may either admit or deny
                          a) 4 types of denial: general (everything is false), special (deny everything in a certain
                               paragraph), qualified (everything in paragraph is false except for…), dummy (base
                               on what I know, I deny but reserve the right to contest later)
                          b) accept the facts, but facts as applied to law is wrong (I did all those things but I
                               didn’t break the law)
                          c) P has law wrong and I have the correct legal argument
                                    (1) Ct is much more forgiving with D’s legal argument. If D does not state
                                         them now, it is ok. Ct is more strict with facts
             3. (c): D has burden of pleading affirmative defense, or be waived, gives laundry list of
                  affirmative defense and “any other matter constituting an avoidance or affirmative defense”.
                  (Ingraham)
                          a) even though D has burden of pleading does not necessary mean D has burden of
                               persuasion, that is up to state rules
                          b) ie. In contr neg, D has burden of pleading, but P may havburden of persusavion to
                               show that there was no contr neg
                          c) if state has different list of affirmative defense, fed rules trumps it (Taylor)
                          d) Note: this rule doesn’t say anything about burden of persuasion, this will be state
                               law. it’s outcome determinative
             4. (d): failure to deny (Taylor)
                          a) if pleading requires answer (as stated in rule 7a), then deemed admit
                          b) if pleading does not require answer (like P’s answer to D’s new facts), deemed avoid
                               or deny (party may bring this up again at trial)
             5. (e)(2) - Claims made in the alternative are allowed (can contradict).
             6. (f) Ct will indulge as assumption in favor of party that is pleading
       E.   Rule 9: Pleading Special Matters
       F.   Rule 10: Form of Pleadings (structure; captions, exhibits, etc)



                                                                                                                   37
G. Rule 12: Defenses and Objections
      1.   (a) when presented
      2.   (b) how presented, should be made in form of an answer
                 a) (1) lack of SMJ
                 b) (2) lack of PJ
                 c) (3) improper venue
                 d) (4) insufficiency of process, attack adequacy of the summons (document) itself
                 e) (5) insufficiency of service of process, attack the manner of which service was done
                 f) (6) failure to state a claim upon which relief can be granted
                 g) (7) failure to join under Rule 19
      3. (c) Motion for Judgment
      4. (e) Motion for more definite statement
      5. (g) consolidation of defense in action
                 a) make all defense at once or loose it
      6. (h) waiver or preservation of certain defense
                 a) (1) waived if not mentioned in answer, or amend under Rule 15a
                            (1) lack of PJ
                            (2) improper venue
                            (3) insufficiency of process
                            (4) insufficiency of service of process
                 b) (2) can be made by any pleading allowed in Rule 7(a), motion for judgment or at trial
                            (1) failure to state claim upon which relief can be granted
                            (2) failure to join party under Rule 19
                            (3) failure to state a legal defense to a claim
                 c) (3) on SMJ, done anytime, by anyone (party or ct)
H.   Rule 15: Amended and Supplemental Pleadings
      1. apply to everything (answer, counterclaims, changing admission of facts, adding legal
           arguments, etc.)
      2. Rule 15(a) - Amendment as of Right (Beeck)
                 a) Time: before trial starts
                 b) A party may amend his pleading once b/f adverse party files responsive pleading OR
                      if is no responsive pleading necessary and action has not been placed on trial
                      calendar, party may amend w/in 20 after initial pleading is served
                 c) Otherwise, must obtain leave of court or consent of adverse party.
                 d) leave is freely granted. In a way, ct needs to justify WHY it denied amend, not why
                      it allowed amend
      3. Rule 15(b) - Amendments to Conform to the Evidence (Moore)
                 a) Time: During the course of trial or after verdict, Amendment of the pleadings to
                      conform to evidence presented at trial.
                 b) 2 possibilities
                            (1) Mutual consent to the amendment:
                                      (a) Express consent. Party did not object to amendment and
                                          expressively said it is ok to admit amended items
                                      (b) Implied/constructive consent - party does not object to the
                                          introduction of evidence during trial but never expressively agreed
                                          either. Party may also have introduce evidence of its own to
                                          contradict amended items
                            (2) If a party objects, court has discretion to allow amendment:
                                      (a) If the amendment aids in presentation on the merits.
                                      (b) If the amendment will not prejudice the objecting side.
                 c) Very forgiving standard;
      4. Rule 15(c) - Relation Back of Amendments (Worthington)
                 a) An amendment of the pleading relates back to the date of the original pleading when:
                            (1) (1) Relation back is permitted by the law that provides the SL applicable to
                                 the action. OR
                            (2) (2) Claim or defense asserted in the amended pleading arose out of the same
                                 conduct, transaction or occurrence set forth in original. OR



                                                                                                          38
                                  (3) 15(c)(3) The amendment changes the name of the party against whom the
                                       claim is asserted if (2) is satisfied and the amendment occurs within the
                                       period provided for service of summons (Rule 4(m)).
                                           (a) (A) Party brought in by amendment must have received such
                                                notice of the institution of the action (not service notice, just need
                                                to know what is going on) that the party will not be prejudiced in
                                                maintaining a defense on the merits. AND
                                           (b) (B) Party knew or should have known that, but for a mistake
                                                governing the identity of the proper party, the action would have
                                                been brought against him.
                           b) This allows for statute of limitations concerns.

III. Steps to analyze
         A. If issue should be pleaded as affirmative defense
               1. If case based on statute, look to language of statute (Gomez)
               2. Ingraham 3 part test
                           a) Is issue part of cause of action defined by law?
                           b) Which party has better access to info?
                           c) Unfair surprise to P?
         B. If there was implied consent (Moore)
               1. did evidence relevant to the new issue come in and did both sides had the opportunity to fully
                   aired the issue, regardless of whether issue was brought up in the pleadings
IV. Cases
         A. Dioguardi v. Durning (2nd Cir., 1944)
               1. P alien files complaint for disappearance of some bottles at customs. Government files a motion
                   to dismiss on the ground that the complaint “fails to state facts sufficient to constitute a cause of
                   action.” Court dismisses complaint with leave to amend under Rule 15(a); P tries again but the
                   court dismisses again with prejudice.
               2. Court of Appeals: under Rule 8(a), P only required to include a “short and plain statement of
                   the claim showing [he] is entitled to relief.” No need to be very detailed. Judges have wide
                   discretion
                           a) Under the Rule, “facts sufficient” aren’t necessary (but probably requires at least
                                some facts to be pleaded).
                           b) Source of law/legal theory not necessary (missing from this complaint).
                           c) all you need is a possibility that these facts could amount to a claim for legal relief
                                under some legal theory.
               3. Degree of specificity required in pleadings varies with the party (courts may require more
                   specificity from some P’s or in certain causes of action).
               4. a complaint must state just enough facts to sufficiently notify the opposing party of the claims
                   against him so as to allow him to begin preparing a defense
         B. Lodge 743 v. United Aircraft Corp. (D.Conn., 1962)
               1. P alleged D should have recall strikers for jobs, per the strike settlement K. D motion for more
                   definite statement (Rule 12(e)) and wanted names of strikers and the jobs they qualified for.
                   information
               2. P asked ct to deny motion b/c to get the info would require laborious research and cataloging
                   D’s own personnel files
               3. Ct:
                           a) P’s claim only need to allege enough facts necessary for D’s to answer
                           b) P needs to provide D with list of strikers, anything after that, D must find out
                                through discovery by itself
                           c) Grants motion for more definite statement, but only after P’s have the opportunity
                                for discovery.




                                                                                                                      39
C. Garcia v. Hilton Hotels (PR, 1951)
      1.    P brings defamation claim against hotel employer, D. case removed to District Court of Puerto
            Rico based on diversity
       2. D: move for dismissal b/c
                   a) Rule 12(b)(6): failure to state a claim, P failed to allege publication, which is
                        necessary for slander claim
                   b) Claim conditional privilege and absolute privilege defense
       3. Ct: deny D’s motion for dismissal b/c:
                   a) Failure to state a claim
                             (1) No need to specifically publication, since that is implied in complaint (P
                                   would not be so upset otherwise)
                             (2) Very forgiving in Rule 8(a) application
                   b) Privilege
                             (1) Conditional privilege:
                                        (a) Need to show malice to show that conditional privilege is void. P
                                             didn’t mention anything in claim about malice
                                        (b) D invoke condition privilege in his answer
                                        (c) However, P does not have to answer that D’s reponse b/c it’s
                                             deemed denied Rule 8(d)
                                        (d) Jury needs to decide whether there was malice
                             (2) Absolute privilege: statement was said during an offical hearing, both
                                   parties agree that there was absolute privilege. t/f strike that part from
                                   complaint
                   c) Complaint sufficiently pleads a right to relief when it states enough facts to
                        reasonably assume that the essential elements of the claim can be prove at trial
       4. 2 ways to get rid of a case like this, with the same result
                   a) more procedural: P filed complaint, D filed answer including immunity defense. If P
                        concede there was immunity, then D invoke 12 (c) to move for judgment on pleading
                   b) quicker way: If after P’s complaint, D knows that there is definitely immunity
                        defense, file 12(b)(6) for failure to state a claim
D.   Ingraham v. United States (5th Circuit, 1987)
       1. Medical malpractice judgment in favor of the P; D (U.S) after judgment moves for reduction in
            damage award on the grounds of state law placing a cap on damages awards.
                   a) P: this issue was an affirmative defense that was waived by the D when it failed to
                        raise it in its answer or during trial.
                   b) D: this cap is part of the cause of action, not necessary to be pleaded and cannot be
                        waived.
       2. 3-part test to determine if an issue is an affirmative defense for pleading purpose
                   a) Was the defense part of the cause of action, as defined by law?
                             (1) Traditionally, there is no cap on this type of tort claim, t/f, cap is not
                                   necessary element of cause of action
                   b) Which party has better access to information?
                             (1) Unclear in this case.
                   c) Unfair surprise to the P?
                             (1) had P known D would raise this defense, they would have changed their
                                   strategy.
                             (2) P, t/f, could be prejudiced by not being aware of this defense and argue for
                                   damages that does not fall under the caps rule
       3. Ct: P. the state statutory cap on damage awards is = “any other matter constituting an
            avoidance” under Rule 8(c) and t/f was waived when not pleaded. Majority rule




                                                                                                           40
E. Taylor v. United States (9th Cir., 1987)
      1.  Same situation as Ingraham; D failed to plead statutory cap.
      2.  CT; Contradict Ingraham, thinks that cap is part of cause of action.
                  a) Rule 8(d), D’s failure to deny amt of damages in his answer is not automatically
                       deemed admitted. D is presumed to want to contest damage claim.
                  b) CA law had defined this statutory cap as an affirmative defense (see factor #1 in the
                       four part test above), but court finds Rule 8(d) trumps this.
                  c) Symmetrical argument: P is not required to plead the amount of damages with
                       specificity, so D should not have to be more specific. (P just has to say it’s > amt-in-
                       cont)
      3. opposite treatment to Ingraham. Damage cap is part of cause of action, not an affirmative
          defense
      4. Wax: favors this view. Treating damages as defense is not consistent with the FRCP approach to
          treating damages, t/f cap should be part of cause of action
F.   Gomez. v. Toledo (Sup Ct, 1980)
      1. On D’s motion, Trial court dismissed P’ss claim for wrongful discharge for his job as police
          officer on the ground that D was entitled to qualified immunity for acts done in good faith within
          the scope of his official duties, and P’s complaint failed to allege bad faith.
      2. Ct: P. allege bad faith no need to be in pleading
                  a) the statutory text, USC 1983 (which allows individual to sue US on violation of
                       rights) does not require P to plead bad faith in order to state a claim for relief.
                  b) t/f, what is good or bad faith is not in the statute but rather from CL, qualified
                       immunity is a defense, burden of pleading rests with D; he must show he acted in
                       good faith. P does not have to assert bad faith
                  c) Ingraham test:
                            (1) Question of access to information: P can’t know what was in D’s mind
                            (2) P should not have to anticipate D of qualified immunity in good faith. Or D
                                 may not even use this defense
      3. When deciding allocation of pleading responsibility for causes of action defined by statute, look
          to the text of the statute first, before embarking on the Ingraham test.
G.   Moore v. Moore (DC, 1978)
      1. even after trial began, pleading may be amended to include issues not raised in the pretrial
          pleadings as long as these issues were tried w/ the implied consent of the adverse party
      2. Custody case where D amended her pleadings post-trial to assert a counterclaim for custody,
          child support, alimony and counsel fees.
      3. P objects to the amendment under Rule 15(b):
                  a) He claimed he did not have notice that these issues were in dispute.
                  b) Was not given opportunity to be heard on these issues.
      4. Court finds implied consent to these issues under Rule 15(b):
                  a) P had timely notice that these issues were being litigated. Not surprise that D would
                       counterclaim for custody since the case is about P trying to get custody
                  b) P offered unique evidence to the counterclaim at trial
                  c) No implied consent for alimony issue, however.
      5. Because P could reasonably expect to have notice these issues were in dispute and offer
          evidence to contest them, he gave his implied consent.




                                                                                                            41
         H. Beeck v. Aquaslide ‘n’ Dive Corp. (8th Cir., 1977)
                 1.  party may amend pleading to change original admission to denial as long as it is done in good
                     faith
                 2. P sued D for injuries sustained in using water slide allegedly manufactured by D.
                 3. D first admitted in its answer that it had manufactured the slide, but then moved to amend its
                     pleading to deny after new evidence arose.
                 4. Trial Ct granted amendment and allowed for separate mini-trial to determine if D had made
                     slide, and the answer was no
                 5. P appeal, claim that he was prejudiced since SL has ran and he can’t bring neg claim against
                     another D now
                 6. Ct: used test developed in Fowman v Davis:
                             a) No Bad faith: D relied on insurance company, turned out to be wrong info, no bad
                                  faith
                             b) No Repeated failure to cure: first time D is trying to cure
                             c) Dilatory motive; prejudice:
                                       (1) True, it is prejudice against P since now P can’t bring case against other
                                            Ds (Rule 15(c) allow you to change D’s name if D had notice, there is no
                                            notice in this case, unless people the ‘slide’ biz knew about the suit)
                                       (2) However, still better than to prosecuting D who didn’t even manuf slide
                                       (3) P can find another place with longer SL and sue the right D
                 7. Alternative argument: even if ct allowed case to continue, D can use Rule 12(b) to amend during
                     trial and result would be the same anyway
         I.     Worthington v. Wilson (IL Dist Ct, 1992)
                 1. P sued under federal law, against three unknown police officer D’s
                 2. P later moved to amend complaint to insert names of two officers.
                 3. Officers object on the grounds that SL had run
                 4. Ct: denied amendment
                             a) Rule 15(c)(3) allows for relation back only if correcting a “mistake” of naming the
                                  wrong person, P named ‘unknown’ persons
                             b) Although the state allows substitution for ‘unknown’, Erie applies and FRCP trumps
                                  state rule
                 5. To get around this: similar to Walker reasoning: FRCP does not specifically say anything about
                     ‘unknown parties’, since it’s silent about that, state rule fills the gap. So there is not really
                     contradiction. Counter to this, there was negative pregnant, FRCP only grants relations back to
                     parts that are specified and NOTHING ELSE.

                                             Summary Judgment
I.   Purpose:
         A. “Preview” of the full trial
                 1.   Efficiency measure to winnow out cases that don’t need full trial.
                 2.   Never decides question of fact - look at the facts in the light most favorable to the non-moving
                      party.
II. test:
         A. Who is the moving and non-moving party?
         B. Who had the burden of production for the particular issue
         C. Take evidence in light most favorable to non-moving party (assume everything non-moving party say
                is true)
                  1. is there a genuine issue of material fact.
                             a) whether something is material will always depends on applicable law, ie. Dog snarl
                                  is only material if self-defense is the applicable law
                  2. did party failed to meet its burden of production.
                  3. can party win on matter of law (ie. Did the non-moving party got the law right?)




                                                                                                                         42
III. Example
         A. P: D shot my dog in his yard on Tuesday
         B. D: yes, but dog snarled at me, under the applicable law, I have an argument for self defense
         C. P makes SJ motion
               1.   Concede facts as D claims. Make legal argument that even if dog did snarled, still not self
                    defe4nse. P make cross motion (since all facts are agreed)
                            a) If P looses on SJ, P looses b/c there is nothing more to argue on. All facts are agreed.
                                End of case
               2.   Silent on facts. Make legal argument that even if dog did snared, still not self defense
                            a) If P does not win on SJ, then still go to trial to contest the fact that dog snarl
               3.   Deny facts but still argue for judgment as matter of law.
                            a) Dog didn’t snarl and even if it did, it’s no excuse
                            b) Same treatment as (b) since at this point, silent=deemed denied
         D. Ct:
               1.   Decided that snarl is self defense, take facts most favorable to non-moving party, D, and assume
                    that D can prove snarl. Deny P’s SJ motion
             2.     Decide that snarl is not self defense, there is no material issue of fact, grant P’s SJ motion
IV. To oppose SJ
        A. Contest material facts
             1. argue that there is a genuine issue of material fact
             2. put forward facts
        B. Argue about application of law
             1. moving party got the law wrong, I have it right
        C. focus on the burden of production
             1. show that you’ve met burden OR
             2. if the moving party has burden, show that they haven’t met their burden
        D. Cross motion for SJ
        E. If D doesn’t answer to P’s opposition to SJ, then still reserve right to contest facts at trial. Deemed
            denied based on Rule 8(d)
V. Statute
        A. Rule 56: Summary Judgment
             1. (a) P may move for SJ 20 days after commencement of action
             2. (b) D may move for SJ at any time.
                          a) Can move w/ or w/o supporting affidavits (because if D does not bear burden of
                               production or persuasion, he is not required to introduce any affidavits)
                          b) P must submit materials to show he was prepared to prove what he claims or dispute
                               facts introduced by D
             3. (c) Judge considers evidence (pleadings, depositions, affidavits, if any) and grants motion if
                  there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
                  of law.
             4. (d) Partial SJ is possible, SJ on specific claims or specific parties
             5. (e) to oppose SJ motion, mere allegation or denial of facts is not sufficient but must set forth
                  specific facts showing that there is a genuine issue of trail
                          a) depending on your opposing SJ strategy, may need to put in evidence (add’l material
                               facts) or simply just say that there is defects on the other side
                          b) difficult to say what is ‘enough’ evidence. Sometimes, an affidavit from someone is
                               enough
             6. (f) Judge has a lot of discretion to postpone ruling on SJ motion and allow for conduct of
                  discovery




                                                                                                                    43
VI. Case
       A. Alderman v. B&O Railroad (Dist Ct, WV, 1953)
             1.   SJ is appropriate where the P fails to demonstrate sufficient factual support for her claims
             2.   P rode on D’s RR on a free pass which by accepting, she waived D’s liability for injury while
                  riding.
             3. Ct decided that even with waiver, D is still responsible for injuries resulting from willful and
                  wanton conduct. Allowed P to amend to claim willful and wanton conduct
             4. D moves for SJ
                          a) derailment was due to cracks in tract which could not have been stopped. t/f, not
                              willful or wanton conduct.
                          b) Even if everything P said is true, P cannot establish D acted willfully and wantonly
                              → no genuine issue as to any material fact.
             5. Court grants motion for SJ.
       B.   Celotex Corp. v. Catrett (Sup Ct, 1986)
             1. in SJ motion, moving party may meet its burden of persuasion by demonstrating that the
                  nonmoving party failed to supply sufficient evidence of a genuine dispute of material fact
             2. D moves for SJ
                          a) on grounds P has failed to meet burden of production. (cannot show casual link b/w
                              husband’s death and P’s product)
                          b) does not attach anything to the SJ motion
             3. P submits three affidavits
             4. Lower Ct: granted D’s SJ, held that P still did not meet burden of production
             5. P appeals: D did not put in any affirmative evidence to show that there is no genuine issue of
                  material fact, relied on language of 56(e) “when motion for SJ is made and supported
             6. Sup Ct: SJ is appropriate
                          a) D, who does not have the burden of production, is not required to submit
                              additional evidence for moving for SJ motion
                          b) P has burden of production at trial, and t/f also burden or production in SJ
                          c) Rule 56(b) - “with or without affidavits” language.
                          d) Rule 56(c) - “affidavits, if any” language.
       C.   Anderson v. Liberty Lobby, Inc. (Sup Ct, 1986)
             1. Question: When ct decides on SJ motion, does ct use standard of proof that applies to the claim
                  at issue?
             2. In this case, the evidentiary standard for libel is “clear and convincing evidence” that D acted
                  with “actual malice.”
             3. Sup Ct:
                          a) held when ruling on SJ motion, must view the evidence through the “prism of the
                              substantive evidentiary standard.”
                          b) Apply ‘clear and convincing’ as the evidentiary standard
                          c) True for both SJ and directed verdict
             4. Wax: thinks this decision in incoherent b/c the standard of proof should not change the analysis.
                  This decision would require a comparative analysis of what one side say vs the other. Instead,
                  judge is suppose to look at just one side of evidence (non-moving side) and assume that all is
                  true, and then question whether that is sufficient for jury to find for the non-moving party




                                                                                                               44
                                  Voluntary Dismissal and Default
I.   Rule 41: Dismissal of Actions
         A. (a)(1) - Voluntary Dismissal
              1. P may voluntarily dismiss his action before adverse party files an answer or makes a motion.
              2. P may voluntarily dismiss his action by agreement of the parties.
              3. Dismissal is w/o prejudice, except if dismissed more than once.
         B. (a)(2) - Voluntary Dismissal with Court’s Permission
              1. Dismissal by order of court at P’s request is w/o prejudice unless court directs otherwise.
              2. Wide discretion given to judges.
                          a) McCants v. Ford Motor Co. (11th Cir., 1986), judge granted P’s motion to
                               voluntary dismiss b/c SL has ran during discovery time and P wanted to preserve
                               the right to bring case in another state with longer SL
         C. (b) - Failure to Prosecute
              1. If P fails to prosecute its claim, D may move for involuntary dismissal.
                          a) ‘failure to prosecute’ can mean so many things and there has to be a balance b/w
                               punishing P for P’s lawyer’s attorney (if attorney was lazy)
                          b) higher ct gives lots of deference to lower’s ct discretion on this matter. Will only
                               review if there was abuse of discretion
              2. Unless court provides otherwise, dismissal is adjudication on merits.
              3. Messenger v. United States (2nd Cir., 1956), in which court held standard for determining
                   dismissal is lack of due diligence on the P’s part, not prejudicial treatment for D.
              4. Link v. Wabash R. Co. (SCOTUS, 1962)
                          a) Court dismissed case sua sponte for failure of P to prosecute (never showed up to
                               pretrial conference a few times).
                          b) Court held such a dismissal is valid without affording notice of such intention to the
                               P or providing an adversary hearing.
                          c) Even if it is the P’s counsel’s fault, such dismissal is valid, because the P has a
                               responsibility to get the lawyer on the case.

                                                    Joinder
I.  2 Categories:
        A. Joinder of Claims: multiple Claims, same parties (Rule 13 and 18)
        B. Joinder of Parties: same claim, multiple parties (Rule 14, 19, 20, 23, 24)
II. Joinder of Claims
        A. Rule 13: Counter Claims (opposite side of v) and Cross Claims (same side of v)
              1. (a) : Related Counter claims: claims about same set of event/occurrence are mandatory,
                  failure to assert them = waiver
              2. (b): Unrelated Counter Claims: permissive; not arising under same event/occurrence. No
                  waiver
              3. (f)- Omitted Counterclaims:
                          a) When a counterclaim is omitted, the court may allow amendment
              4. (g): Cross Claims: one party MAY assert against a co-party (same side of the v)
                          a) Related Cross Claims: Permissive
                          b) Unrelated Cross Claims: Forbidden
              5. (h): Persons who are not part of the original action, may be made parties to counter-claim and
                  cross-claims via Rule 19 and 20
        B. Rule 18: Joinder of Claims and Remedies
              1. (a): party seeking relief from an opposing party may join with his original claim any additional
                  claims (not necessary arise under same occurrence) that he has against that opposing party.
              2. (b): remedies (didn’t go over)




                                                                                                                  45
III. Joinder of Parties
         A. Rule 14: Impleader Rule
               1. (a) when D may bring in 3rd party (A->B, B->C)
                             a) D (3rd pary P) may implead (bring in a person not yet a party to the suit) 3rd person
                                   (3rd party D) who is responsible for all or part of P’s claim
                             b) Impleading is not mandatory (D can bring a second action for contribution totally
                                   separate after the case is over)
                             c) C must answer complaint according to Rule 12 and assert any counterclaims or
                                   cross-claims per Rule 13
                             d) P may assert claim against 3rd party D if it arises out of the same occurrence as P’s
                                   claim against 3rd party P
                                        (1) Then, A->C, C may or may not counterclaim. C may also assert any defense
                                             it has against P. GLANNON says C can assert claims if they are of the same
                                             T and O and same issue of fact
                             e) 3rd party defendant (D2) may use this rule to serve another 3 rd party (D3) who is
                                   liable to 3rd party defendant for the action
               2. (b): when P may bring in 3 party (A-B, B->C, C->A. A->D)
                             a) when counterclaim against P; She may implead a 3rd party
               3. Advantages
                             a) efficiency of hearing the related claims together
                             b) avoidance of repeated suits or inconsistent judgments
               4. Disadvantages
                             a) undue delay in seeking it
                             b) complication of the issues in the main action
                             c) potential prejudice to the P if jury is sympathetic to impleaded 3rd party, but not to
                                   original D
               5. Impleading a 3rd party D does not affect the court’s jurisdiction over the original claim. Still
                     need to make sure that 3rd party has PJ and SMJ
               6. The 3rd party is also disregarded in determining whether venue is proper
         B. Rule 19: Joinder of Person Needed for Just Adjudication (Temple)
               1. (a) - Requires “necessary” parties to be joined if it will not deprive the court of SMJ
                             a) if a person is absent, no complete relief for the other parties
                             b) if joint party objects to venue (or SMJ) or destroys venue (or SMJ) he should be
                                   dismissed
               2. (b) - When joinder of a “necessary” party is not possible (no SMJ), provides for dismissal of the
                     case, or if the party is not that necessary, the continuation of the lawsuit without the party.
         C. Rule 20 - Permissive Joinder of Parties
               1. (a) permissive joinder
                             a) All persons may join as P and D if they assert right over the same occurrence AND
                                   if involve same question of law or fact. Must be original P and Ds, not 3rd party P
                                   and D claims
                                        (1) P may join multi-Ds together to sue in one lawsuit
                                        (2) P may join with other Ps to suit 1 or multi-Ds
                             b) Jointed P and D does not have to seek all of the relief or defense demanded.
                                   Judgment will be given according to the respective relief or defense provided
               2. (b) Ct may order Separate trials if necessary to prevent dely or prejudice
         D. Rule 23 – Class Action, allow when parties have sufficiently related interest, dealing with same legal
             or factual issues, and there are so many of P that it would be more efficient to adjudicate case together.
             Remedy is either structural injunction (ie upgrade prison) or fully divisible forms of relief ($). Party
             may opt out of the latter, but not the former since once the injunction is granted, everyone benefits.
             Class actions ran against a lot of traditional principals, P is the master of suit, right to be heard (since
             this is trial by proxy, and class representative and often does not involve opt-out option)




                                                                                                                      46
         E. Rule 24 – Intervention (3rd party outside of suit to join into case)
                1.(a) Intervention of Right: mandatory if
                          a) US Statute confers an unconditional right to intervene OR
                          b) Applicant claims interest to the property or transaction and the disposition of the
                              action will affect the applicant’s ability to protect that interest, unless the applicant’s
                              interest is adequately represented by existing parties
                                   (1) Ex: ex: A sues B for trespass. I wants to come in b/c A doesn’t own
                                        property, I owns the property
                                   (2) A and my interest are in conflict
                                   (3) However, B and my interest may not be in conflict b/c B only wants to
                                        prove that A doesn’t own the land. B doesn’t care that I owns the land,
                                        doesn’t want to deal with that
                          c) Note: very strict standards b/c 3rd party is trying to trump P’s right as master of
                              lawsuit
             2. (b) permissive intervention: When exercising its discretion, Ct shall consider whether the
                  intervention will unduly delay or prejudice the adjudication of the rights of the original parities.
IV. Rule 21-Misjoinder and non-joinder
        A. Misjoinder of parties is not ground for dismissal
        B. Ground for ct or motion to fix complaint
V. Case
        A. Temple v. Synthes (Sup Ct, 1990)
             1. P injured by a plate in his spine; sues manufacturer D in federal court and sues Dr. in state
                  court.
             2. D moves to dismiss for failure to join necessary parties (the Dr) under Rule 19.
                          a) P does not want to join D and D is trying to force P to join Dr. or else abandon the
                              case. Strategic behavior
             3. Court does not allow dismissal as doctor is not a necessary party; joint tortfeasors are always
                  permissive parties.Note: other ways to handle this
                          a) P can bring Dr. in as co-defendant using Rule 20
                          b) Manuf can implead Dr. using Rule 14
             4. it is not always required to make all joint tortfeasors parties to the same lawsuit


                                                  DISCOVERY
I.   Definition: Method by which the parties obtain information for use in litigation or in anticipation of litigation.
     The info discovered does not have to be admissible evidence. It just has to be info that is reasonably calculated
     that will lead to discovery of admissible evidence
          A. Old rules:
                 1. parties had to request discovery for the process to begin
                 2. Previous to change in 1990s, Rule allow local rules to opt out and disregard the spontaneous
                      disclosure. Many cts have chose to do so
          B. New rules: mandatory disclosure. the filing of pleading triggers the duty of the opposing party to
               disclose matters alleged with “particularity.”
          C. Debate over new discovery rules:
                 1. Pro (Winter):
                             a) Lead to less discovery overall.
                             b) Lead to less litigation over discovery.
                             c) Encourages more specificity in pleadings (parties will be more specific in pleadings
                                  to obtain more mandatory disclosures from opponent).
                             d) Encourages a “spirit of cooperation” - temporary suspension of the adversary system
                                  to prevent trials from turning on strategic factors.
                 2. Con (Scalia):
                             a) Not compatible with the adversary system.
                             b) Job of attorneys is to protect the rights of their clients, but spontaneous disclosure
                                  requires attorneys to use their judgment to determine how much to disclose,
                                  subordinating client’s rights to those of the system.
                             c) Puts attorney’s in the position of undermining client’s position.


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II. General Goals of discovery:
         A. Keep litigation from turning into a game won by the party with more resources or superior access to
              information (leveling device).
         B. Eliminate the element of surprise during the trial.
         C. Facilitate a search for the truth by ensuring both sides are fully prepared to advocate for their position.
         D. Dispenses with irrelevant/unimportant issues.
III. Privilege material
         A. Standard is much higher for privileges than other info. the ‘relevance’ standard does not apply
         B. Party claiming privilege has burden of proof
         C. Formal Privileges (Evidence Rule 501):
                1. Attorney-Client Privilege
                           a) One of the parties to the privilege must be an attorney.
                           b) The attorney must be acting in a legal advisor capacity.
                           c) Party must be seeking advice as the role of client
                           d) If a third party is present, privilege is waived.
                2. Spousal Privilege
                3. Priest-Penitent Privilege
                4. Doctor-Patient Privilege, recently expanded by ct to include therapist
                5. Fifth Amendment Privilege against self-incrimination.
                6. ct very reluctant to expand this list. (ex. Rejected journalist privilege)
         D. Work Product Rule, codified in Rule 26(b)(3) and 26(b)(4)
                1. party can only have access to the ‘work’ produced by the other side ‘ in anticipation of litigation’
                    only in EXTREME situations.
                2. May NEVER get to review other side’s legal strategy, thoughts or impressions
                3. EXCEPTION; in rare circumstances, when ct allow little guy to get info from big guy with much
                    more resources
                4. Goal:
                           a) Avoid exploitation. Not paying for work
                           b) ‘chill’ factor: will not be as diligent if knew other party could get to info
                5. Meaning of “in anticipation of litigation”
                           a) 5th Circuit interpretation:
                                    (1) Only material prepared exclusively or primarily for litigation.
                                    (2) Strict application of this privilege.
                           b) 2nd Circuit interpretation:
                                    (1) “Because of” test
                                    (2) If the possibility of litigation is one of the reasons for preparing a document,
                                          it is protected by the work product rule.
                                    (3) However, documents prepared in the ordinary course of business are not
                                          protected (must be because of actual or impending litigation).
                           c) Kares: (Wax likes this one) if there is no litigation in the near future (if info was
                                done b/f the biz decision that would lead to litigation), then not work product
         E. Privileges are based on the benefit of free and open communication.
                1. However, privileges are narrowly construed.
                2. They must be balanced against the principle of full disclosure.
                3. Privileges are costly to the search for truth.
         F. Experts-ask the following question
                1. When was expert consulted?
                2. are experts part of the facts of the case?
                3. is expert being used in anticipation of litigation?




                                                                                                                     48
IV. Statutes
        A. Discovery Mechanics
               1.   Rule 26 General Provision Governing Discovery: Discovery: duty of Disclosure
                          a) Designed to work on its own, w/o judicial intervention. Reason for mandatory
                              disclosure
                          b) (a) Required Disclosures; Methods to discover additional matter
                                   (1) (1) Initial disclosures, list of things that is spontaneously handed over
                                            (a) (A) info of individual to have discoverable info that may support
                                                 claim or defense
                                            (b) (B) documents and data that may support claim or defense
                                            (c) (C) computation of damages
                                            (d) (D) insurance agreements
                                            (e) (E) list of exemptions from initial disclosure
                                   (2) (2) Disclosures of Expert (testifying)
                                            (a) name
                                            (b) report
                                            (c) qualification
                                            (d) other infor
                                   (3) (3) pretrial disclosures
                                   (4) (4) form of disclosures
                                   (5) (5) methods to discover additional matter
                          c) (b) discovery Scope and Limits
                                   (1) (1) in general, parties may obtain discovery about anything that is not
                                       privileged and relevant ot the claim or defense of any party
                                   (2) (2) limitations, Ct may limit frequency or extent of discovery methods sua
                                       sponte if
                                            (a) discovery is unreasonably duplicative
                                            (b) party seeking discovery had ample opportunity to discover or
                                                 obtain info
                                            (c) burden or expense of discovery outweigh likely benefit(Hickman),
                                                 consider factors:
                                                      (i) amt in controversy
                                                      (ii) relative resources of parties
                                                      (iii) importance of issues at stake
                                                      (iv) importance of discovery in resolving issues
                                   (3) (3): trial preparation: materials (codification of work product rule)
                                            (a) work product = material prepared in anticipation of litigation, or
                                                 for trial by or for another party
                                                      (i) cannot be prepared for 3rd party involved in suit
                                                      (ii) can be preparaed by anyone, doesn’t have to be attorney
                                   (4) (4) trial preparation: experts (codification of work product rule)
                                            (a) (A) party may depose any person who has been identified as expert
                                                 witness
                                            (b) (B) by interrogatories or deposition, to discover info from expert
                                                 who has been retained by opposing party in anticipating of
                                                 litigation or preparation for trail, but who will not be a witness
                                                 only upon showing of EXCEPTION CIRCUMSNTACES
                                                      (i) apply even to experts who was retained by party after
                                                            observation (Perry)
                                            (c) (C) party shall pay expert
                                            (d) rule makes no mention of
                                                      (i) general experts: freely discoverable subject to the limits
                                                            of 45(c)(3)(B)
                                                      (ii) expert observer: expert who are part of what happened
                                                            (this can fall under Rule 26(b)(1) as witness to the event)
                                   (5) (5) privilege material
                                            (a) if party plans to claim something as privileged, must expressively
                                                 state nature of info


                                                                                                                    49
            d) 26(c) protective orders, Ct may protect issue protective order to tailor the discovery
               methods if Ct finds
                    (1) that party suffers from annoyance, embarrassment, oppression, undue
                         burden.
                    (2) Method ct may use: specifying the terms and condition of discovery,
                         restricting method use, restricting inquired info, restricting time, restriction
                         use of info (Seattle Times)
            e) 26(d) timing and sequence of discovery
                    (1) A party may not begin discovery process until after 26(f) conference.
                    (2) Unless otherwise directed by court, methods may be used in any sequence.
            f) 26(e) supplementation of disclosures and responses,
                    (1) on-going duty to disclose info as it comes into the scope of 26(a) as they
                         come into light
                    (2) unless change has been otherwise made known to opponent
            g) 26(f) conference of parties; planning for discovery,
                    (1) Parties are required to meet to discuss claims and defenses.
                    (2) Parties also must make plans for mandatory disclosures above
                    (3) Parties also must develop a proposed discovery plan.
                    (4) Parties may raise any objections at this point
            h) 26(g) signing of disclosures, discovery requests, responses and objections
2.   Rule 30: Oral Depositions:
            a) allows a party (anyone on either side of the v.)to question any person; a party or a
               non-party witness under oath
                    (1) only 10 ( 7 hours or one day) unless extra permission granted
                    (2) oral deposition may happen w/o intervention of the court; all you have to do
                         is get in touch with that person and tell them that you want to depose them.
            b) Parties: the understanding is that parties are required to make themselves available
               for depositions (if not, case can be thrown out under Rule 41)
            c) Non-Parties: must follow subpoena rule: the rule is designed to be fairly protective
               of non-party witnesses who might have relevant information to the case. This is
               balancing the need for full disclosure of relevant interest and other private interests
               that one might have
            d) Corporations: (b)(6): if you direct a subpoena to a corporation, it is up to the
               corporation to provide someone who knows something about what is going on and to
               supply him to answer the questions, even if it is safer for the corporation to send
               someone who knows nothing (that would lead to hassles and the whole point is to
               avoid that)
3.   (Rule 31Written Deposition: attorneys are not there for deposition.)
4.   Rule 32 Use of Depositions in Trial: subject for evidence: use if witness is dead or unavailable.
            a) Advantages of depositions
                    (1) Allows spontaneity that you don’t have w/interrogatories:
                              (a) You can ask follow up questions
                              (b) You can see how person react and what demeanor is
                    (2) chance to consult with lawyer is minimal
                    (3) element of surprise: no time to prepare for question
                    (4) wider scope: you can depose parties and non-parties
5.   Rule 33: Written Interrogatories
            a) written questions and answers up to 25 questions
            b) only for parties: non parties cannot be subpoenaed to answer written interrogatories;
               (they can answer out of kindness)
            c) unlike Depositions: interrogatories include a duty to answer in full and that includes
               a duty to investigate (someone in deposition can keep saying “I don’t know” here
               they have to get an answer)
            d) duty is of reasonable investigation: helpful b/c it gives requesting party collective
               knowledge, but can be very burdensome.
            e) Advantages:
                    (1) Less Expensive: (deposition can be expensive for someone to travel…this is
                         just cost of mailing)
                    (2) Allow potentially wider scope: b/c of duty to investigate
                    (3) Uncertain to who knows the info
                                                                                                      50
            f)  Disadvantages:
                     (1) Can’t get to non parties
6.   Rule 34: Document Production
           a) No Court order: request for documents, inspection of premise, device, etc…
           b) need a Rule 45 Subpoena to get this info from non-parties
7.   Rule 35: Mental and Physical Exams
           a) available where the mental or physical condition of someone in the case is in dispute;
                needs a court order b/c it is so invasive (not self-executing)
           b) need to have showing of need
8.   Rule 36: Requests for Admission
           a) not really a discovery device; but more a request for the other side to stipulate certain
                facts
           b) largely self-executed doesn’t apply in cases of collateral estoppel or issue preclusion
9.   Rule 45: Subpoena
           a) Limits where you can bring unwilling witnesses to trial, despose and how much
                burden you can place on them
           b) (a) - Blanket grant of authority to subpoena third parties: (technically, no need to
                subpoena party b/c they’re suppose to hand over all info automatically)
                     (1) (1)(c)- Subpoena duces tecum: a subpoena ordering a witness to appear and
                         give testimony
                     (2) (2) - Subpoena for appearance at trial or deposition.
                               (a) For trial - issued from court where trial will be held.
                               (b) For deposition - issued from court in district where deposition will
                                   be held.
                     (3) (3) - Attorneys can issue subpoenas.
           c) (b) - Service Rules:
                     (1) (1) - How served: by person who is not party and > 18 years old. Also
                         deliver fee, if applicable
                     (2) (2) - Where served:
                               (a) Any place within the judicial district where it was issued.
                               (b) Within 100 miles from place of deposition, hearing, production or
                                   inspection
                                         (i) ‘production’ is very tricky. Where is production? Place
                                              where document started, or where it ended up
                               (c) Piggyback provision on state law regarding service.
                               (d) As provided by federal statute.
           d) (c) - Protection of persons subpoenaed:
                     (1) (1) person issuing subpoena should take reasonable steps to avoid imposing
                         undue burden or expense to person subject to subpoena
                     (2) (2)(A) person command to produce document or permit inspection does not
                         have to appear in person unless required to appear for deposition or hearing
                         at trial
                     (3) (2)(B) – party may challenge subpoena for document production or to
                         permit inspection.
                     (4) (3)(A) ct SHALL quash or modify subpoena if’
                               (a) (i) Fails to allow a reasonable time for compliance.
                               (b) (ii) requires non-party to travel more than 100 miles (from home or
                                   business place).
                               (c) (iii) Requires disclosure of privileged or other protected material.
                                         (i) Good case for modification here: redaction, in camera
                                              review.
                               (d) (iv) Subjects a person to undue burden
                     (5) (3)(B) – ct MAY Quash or Modify Subpoenas:
                               (a) (i) Requires disclosure of trade secret or other confidential
                                   material.
                               (b) (ii) Requires disclosure of un-retained expert’s opinion or
                                   information no describing specific events in dispute.
                                         (i) More appropriate to hire and pay experts than subpoena
                                              them.
                               (c) (iii) requires non-party to travel more than 100 miles for trial
                                                                                                    51
                                          (d) Under 45(c)(3)(b), if the party in whose behalf the subpoena issues
                                              shows a substantial need for this information and assures that the
                                              person subpoenaed will be reasonably compensated, the court may
                                              order appearance or production.
V. Cases
      A. Marrese v. American Academy of Orthopaedic Surgeons (7th Cir., 1984)
            1.   Example of court’s authority (and responsibility) to tailor protective orders to fit the needs of
                 both parties.
            2. P was denied membership at D’s club. P issued discovery request for information about
                 evaluation of prospective Academy members
            3. D seek protective order under 26(c), claim that disclosure would ‘chill’ free flow of info
            4. Ct:
                        a) Needed to balance P’s genuine need to this information for their case and D’s
                             interest in protecting this information.
                        b) Ct should use discretionary power to alter discovery or to change the sequence of
                             discovery in order to balance the interest of the parties
                                  (1) Redaction (black out) of sensitive information.
                                  (2) in camera review by the judge of the request material. Judge acts as agent
                                       of the party to see if there is anything party would need
                                  (3) Alteration of the timing and sequence of discovery. Discovery non-sensitive
                                       info first
                                  (4) Limiting review of material to P’s files only (quantitative).
      B.   Seattle Times v. Rhinehart (Sup Ct, 1984)
            1. P brought an action for defamation against D newspaper.
            2. Court issued order for P’s to produce information on donors and members of the organization,
                 and a protective order prohibiting D’s from publishing any information.
            3. D appealed citing a First Amendment interest in publishing.
            4. C: A protective order that restricts the dissemination of info obtained by discovery does not
                 necessarily offend 1st amend
      C.   Hickman v. Taylor (Sup Ct, 1947)
            1. D’s attorney interviewed witness and survivors of tag boat accident
            2. P’s sought through interrogatories of witness statements, interview transcripts, and prepared
                 summaries prepared by the D’s attorney.
            3. Sup Court: P is not allowed D’s attorney work
                        a) Info is not covered by the attorney-client privilege, as this was a communication by a
                             third party to the attorney (witnesses).
                        b) two-tiered privilege for “work product” test
                                  (1) Qualified Work Product Privilege
                                            (a) Applies to documents and things.
                                            (b) Can only get info in dire circumstances
                                                      (i) Witness died
                                                      (ii) Photograph of that moment of accident
                                                      (iii) Test of river quality at moment contaminant is released
                                  (2) Absolute Work Product Privilege
                                            (a) To the extent a document contains mental impressions or plans of
                                                  an attorney, this material is not discoverable.
                                            (b) This material goes to the heart of trial preparation.
                                            (c) Access to this information could “chill” preparation efforts.
                        c) In this case, P’s knew the identity of the witnesses and could easily have deposed
                             them; no absolute need to this information shown.
            4. a party is not entitled, w/o a showing of good cause, to obtain copies of an opposing attorney’s
                 notes and memoranda acquired from interviews with witnesses
            5. created CL work product rule:




                                                                                                                52
         D. Upjohn v. United States (Sup Ct, 1981)
               1.   IRS sought discovery of interview conducted by corporate counsel and the counsel’s notes and
                    memorandum.
               2. D resisted, invoking attorney-client privilege and work product rule.
               3. Ct:
                            a) Attorney-client privilege:
                                       (1) Privilege applies beyond a corporation “control group” (i.e. officers and
                                            agents) to those in mid and lower level positions.
                                       (2) Privilege is meant to encourage free and open communication, so it must
                                            apply to all acting in a legal capacity.
                                       (3) Privilege does not block independent discovery of the information held:
                                                (a) Privilege protects only the communication with an attorney.
                                                (b) Does not provide blanket protection of underlying facts.
                                                (c) IRS is free to interview the same employees.
                            b) Work Product Rule:
                                       (1) There was not sufficient showing of necessity and unavailability by other
                                            means
                                       (2) As mention above, IRS can interview the same employees
         E.   Perry v. W.S. Darley & Co. (Dist WI, 1971)
               1. P injured on fire pump and sued manufacturer, D
               2. D sought to discover the identity of expert who inspected pump after accident, but was later
                    retained by P under Rule 26(b)(1).
               3. Ct: discovery not allowed
                            a) Court finds this expert to be a non-testifying expert retained by the P in anticipation
                                 of litigation subject to Rule 26(b)(4)(B).
                            b) D has made no showing of “exceptional circumstances” to justify discovery of this
                                 information, so discovery request is denied.
                            c) the identity of expert not expected to be called at trial must be disclosed only under
                                 exceptional circumstances
               4. Note: expert was not retained by P until after he made his examination. t/f, can arguable say
                    that at time of examination, the expert was not ‘retained’ and t/f no protection. And even if it
                    was an retained expert, can argue that it’s absolutely necessary that D has access to those
                    exper4ts b/c he has unique info (examination right after accident)

                         JURY (INSTRUCTION, DELIBERATIONS)
I.  Constitution/Statute
        A. 7th Amend: Constitutional element to the allocation of decision making authority between the judge
             and jury.
               1. Jury is given the role of fact-finder, weighing of the evidence.
               2. Judge cannot change or redo the finding of facts, except as provided by the rules at CL
        B. Rule 51: Instructions to the Jury
               1. Parties may submit proposed jury instructions.
               2. A party must object to the jury instructions before the jury retires to preserve the issue for
                   appeal. (Alexander)
II. Cases
        A. Alexander v. Kramer Bros. Freight Lines (2nd Cir., 1959)
               1. In this tort case, D raises the issue of erroneous jury instructions (concerning the burden of
                   persuasion for contributory negligence) as grounds for the granting of its motion for a new trial
                   under Rule 59.
               2. It was a harmful error b/c who has burden of persuasion is pivotal b/c equipoise of evidence –
                   equally convincing arguments. Party w/burden will lose.
               3. D argues he raised the objection several days before the instructions given.
               4. Ct: denies D’s motion,
                          a) Although D objected to instruction a few days before jury retired, ct held this this
                               was too early, need to raise objection right b/f jury retires, as required by Rule 51
                          b) Purpose of the objection is to alert the judge of possible error and give him the
                               opportunity to correct the error.
                          c) In this case, the objection was too early to serve this purpose of Rule 51.

                                                                                                                    53
                          d) Ct interprets the word “before” → objection to jury instruction must be before the
                                jury retires – really means right before.
               5. Note: possible, though unlikely way out: Plain error doctrine: idea that the law was so
                   obviously wrong that basic fairness dictates attorney has right to assume that judge knows the
                   law. must be something that goes to the core and integrity of the ct system.
         B.   Texas Employers Ins. Ass’n v. Price (TX, 1960)
               1. Workman’s comp. case – first in front of administrative tribunal, then P appealed (de novo,
                   allow trial ct to hear case all over again) in TX trial ct. D appealed.
               2. D moved for a new trial under Rule 59 on two grounds:
                          a) Verdict was against the great weight of the evidence: So little evidence for outcome
                                that no reasonable jury could find for P and judgment should be reversed – Rule 50.
                          b) Jury misconduct.
               3. Ct:
                          a) there was sufficient evidence to support the jury’s verdict.
                          b) However, there was jury misconduct. court finds reversible error:
                                     (1) One juror used his personal experience to persuade the jury that the P’s
                                          incapacitation was total and permanent.
                                     (2) This juror in effect “re-instructed” the others on the law.

                          JUDICIAL CONTROL OVER THE JURY
I.  3 ways for judge to take case from jury (CL basis)
        A. directed verdict (now JAML)
        B. motion for new trial
        C. judgment notwithstanding the verdict (JNOV), (now JAML)
II. Judgment as a matter of law, JAML
        A. Taking all facts as true, assume jury believes absolute everything the non-moving party says, could
            non-moving party actually win
        B. Same standard as SJ. Difference is the timing of the motion.
              1. SJ: b/f trial. What evidence will be there
              2. JMAL: during or after trial. what evidence was presented
        C. 2 types
              1. Direct Verdict
                           a) At close of P’s case, D can make direct verdict motion
                           b) After D make any evidence
                           c) At close of all evidence, either P or D could make motion
              2. JNOV
                           a) After jury comes back with verdict, loosing party asks for jnov
                           b) Party must make motion for directed verdict right before jury goes out, in order to
                               renew motion (ask for JNOV) after verdict (Alexander)
                           c) Judge will unlikely grant direct verdict right before jury goes out b/c
                                    (1) Efficiency: if appeal, no need for new trial. Can just affirm or reverse jury’s
                                        verdict
                                    (2) Jury may hold in favor of moving party anyway
        D. Remaining JAML problems:
              1. how much evidence is necessary
              2. how is the evidence to be evaluated?
                           a) Non-moving party (Lavender)
                           b) All evidence as a whole
                           c) Look at non-moving party evidence, in comparision with the moving party’s
                               evidence (Chamberland)
              3. erie question: state may have different standard for JAML
                           a) Sup Ct has declined to answer this question. Ct of Appeals is split on this




                                                                                                                     54
III. Constitution/Statute
        A. Rule 50 - Judgment as a Matter of Law
                1. (a) Party may move for JAML (directed verdict) at the close of his case.
                            a) Substantive standard: No legally sufficient evidentiary basis so that no reasonable
                                 jury would find for that party on that issue.
                            b) Must be made before submission to the jury.
                2. (b) Party may renew motion for JAML after jury returned verdict (JNOV), or may move for a
                    new trial under Rule 59 (both motions are usually joined).
        B. Rule 55-Default, if party failed to plead or defend according to FRCP, will get default judgment
              against him
        C. Rule 59 - New Trials
                1. A party may move for a new trial on all or part of the issues for “any of the reasons for which
                    new trials have been granted in actions at law in the courts of the United States” (referring to
                    CL)
                2. Motion must be made within 10 days after entry of judgment.
                3. Court may also order a new trial on its own initiative.
        D. (Rule 60 - Relief from Judgment or Order, clerical mistakes or other types of mistake)
        E. Rule 61 - Harmless Error Rule:
                1. If error is not prejudicial, then cannot be grounds for a new trial.
                2. To be prejudicial, the error must have a possible effect on the outcome.
IV. Case
        A. Lavender v. Kurn (Sup Ct, 1946)
                1. Switchman died in rail yard – 2 different versions of how it happened. It could have been murder
                    or RR neg
                2. D invoked state version of Rule 50 – judgment as a matter of law
                3. Trial court found for P; the MO Supreme Court granted a JNOV motion, arguing that “all
                    reasonable minds” agree that verdict for P involved unreasonable speculation and conjecture.
                4. Sup Ct: reverses JNOV, finding that P had introduced enough evidence that a “reasonable jury”
                    could have found for the P
                            a) A measure of speculation and conjecture is part of every jury verdict – evidence at
                                 equipoise for both stories.
                            b) Only in the “complete absence of probative facts to support the conclusion” should
                                 JNOV be granted
                            c) If there is even a scintilla of evidence for one side, then jury’s decision should be
                                 respected
                            d) Establishes a federal standard is jury-deferential standard
                5. Note: Ct have trouble sticking with this standard. State cts, especially has not. t/f, created gap
                    b/w state and federal ct
        B. Denman v. Spain (MS, 1961)
                1. Tort action for injuries sustained in car accident with no witnesses.
                2. Evidence on both sides was spare and equally bad, really no reason to rule for one side vs the
                    other
                3. Court affirms a JNOV, as jury’s verdict was matter of speculation. P failed to meet her burden
                    of proof
                4. Cannot really be reconcile with Lavender, maybe argue that this is in state court, that one was
                    in Federal ct (a very very big stretch)
        C. Hartwig v. Kanner (7th Cir., 1990)
                1. P consulting firm files suit against D attorney for breach of K in failing to pay for his services.
                2. D raises defense that contract is void because of P’s misrepresentations (inaccurate resume and
                    conflict of interest) but never offered any evidence, not even his own affidavit.
                3. Ct: JMAL is appropriate if D fails to carry the burden of production for his affirmative
                    defense: failed to introduce evidence at trial of his reliance of P’s misrepresentations, a key
                    element of his defense..




                                                                                                                   55
        D. Pennsylvania R.R. v. Chamberlain (Sup Ct, 1933)
               1.   P sues for wrongful death action against D RR, claiming the RR’s negligence led to the death.
               2.   P’s only witness was not reliable, balanced by several witnesses for D.
               3.   Ct: D
                           a) finds no real dispute in facts:
                           b) JAML for D (directed verdict) b/c evidence was so lopsided
               4.   Ct here ‘weighted’ the evidence which it should not have done
               5.   Instead, Ct should have granted a new trial, using Rule 59 in which the standard is “against the
                    great weight of the evidence” as opposed to a JAML ruling, where standard is “no reasonable
                    jury could find” for that side.


                                                  APPEALS
I.   4 main grounds for a new trial
         A. procedural error (wrong rule, etc…)
                1. not Rule 61: harmless errors
         B. jury misconduct(Price)
         C. verdict against a great weight of the evidence (use Rule 59)
         D. verdict is excessive (usually leads to a trial on damages)
II. Statutes:
         A. 7th Amend: (deals only with trial with jury relationship)
                1. Reserves fact-finding responsibility to juries.
                2. judge cannot change or re-do juries findings.
                            a) Exception in Rule 59: New Trial (not really review, however, but chance for a new
                                 jury).
                            b) Exception in Rule 50: JAML (not really weighing, but looking in most favorable
                                 light).
         E. § 1254 - Supreme Court may review cases from Cts of Appeals.
                1. by certiorari, b/f or after judgment
                2. certification by ct of appeals on legal question or instructions
                3. proper wording: lower ct “request certiorari”
         B. § 1257 - Supreme Court may review cases from State Supreme Courts, if dealing with validity of
              federal law or constitution rights
         C. § 1291 - Final decisions of district courts may be appealed to Ct of Appeals
         D. § 1292 - interlocutory appeals from district courts allowed for Ct of Appeals
         E. Rule 52 - Appeals courts cannot second-guess a fact finding by a judge sitting without a jury unless the
              finding is “clearly erroneous.”. Standard is de nove
III. Standards of Review:
         A. For findings of fact and application of law to the facts:
                1. de novo Review
                            a) Fresh look at facts and law.
                            b) Application of law to fact
                            c) Error in finding of law
                2. Various degrees of deference to trial court’s finding:
                            a) Clearly erroneous standard.
                            b) Error.
                            c) “Against the great weight of the evidence” (come to mean in Rule 59).
                            d) “No reasonable jury” (Rule 50).
         B. For matters of law: no deference to the trial court (“accumulation of wisdom”). Use de novo standard.
                1. Ex: for case where there is no dispute of facts
IV. Interlocutory Appeals:
         A. In federal courts, interlocutory appeals (an appeal before a final judgment is rendered) are disfavored:
                1. Pros:
                            a) Party might win in the end and not need to appeal (efficiency).
                            b) More efficient for all questions of error to be heard at once.
                            c) Discourages strategic behavior (delay and harassment).


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               2. Cons:
                           a)   Could be inefficient; an entire case could be tried and thrown out for a mistake at the
                                beginning of a case.
V. Rule 10 of the Supreme Court: (not FRCP!!)
        A. Kinds of cases Sup Court is likely to hear:
               1. Conflict among the Courts of Appeals;
               2. Conflict between Court of Appeals and a state supreme court;
               3. When a Court has departed from the usual practice.
               4. State supreme court deciding a federal question that conflicts with Sup Ct;
               5. Important question of federal law that should be settled.
               6. Writs of certiorari are a matter of judicial discretion.
        B. CL: will only decide on issue that is really necessary
               1. fear of doing more harm than good
               2. avoid constitutionality if possible
               3. will not hear cases that will be mooted (settlement looming), issues are not well presented
VI. Hicks v. United States (4th Cir., 1966)
        A. P claimed malpractice against D Navy physician. Standard of negligence determined by state law.
        B. District court decision for D in Federal Tort Claims Act (sends cases to federal court) tried before a
             judge
        C. Appeals court reverses decision:
               1. Rule 52(a), finding of facts should not be set aside unless clearly erroneous to be overturned.
                            a) This only applies to cases where there was an actual finding of fact
                            b) Here, the facts are undisputed, t/f it is a question of of law: whether the undisputed
                                facts of the Dr’s action constitute neg
               2. error of law (apply de novo standard)
                            a) trial judge erred in applying the undisputed facts to the law. given the evidence, Dr.
                                was clearly neg
                            b) t/f, it is ok to question the trial judge’s findings and reverse judgment
        D. general rule that trial judge’s finding of fact should not be disturbed unless clearly erroneous does
             not apply when the judge’s conclusions are based on undisputed testimony and evidence. that would
             be a case for question of law

                                        PRIOR ADJUDICATION
I. Direct attack  attack in the direct line of appeal
II. Collateral attack  after the judgment has become final, attempt to nullify and/or change final judgment
        A. Res judicata: claim proclusion
        B. Collateral estoppel: issue proclusion
        C. After receiving final judgment, go to another court to seize final judgment. D may try to collaterally
              attack judgment in the new state
        D. Writ of habeus corpus: criminal law
III. Constitution/Statute
        A. Art IV: state ct shall respect decision of other state court
        B. 1738: full faith and credit clause: says that the state should give res judicata to fed courts if there was
              proper jurisdiction
IV. Stare Decisis
        A. Notion to want consistency in system, like cases should be decided alike.
                1. Applies to issues of law, not fact.
                2. Precedential doctrine: not the same status as firm doctrines like res judicata.
                3. General rule of practice/guideline for court’s own use and benefit.
                4. Force of precedent is strong, but not binding.
        B. Rules for which courts follow which precedents:
                1. horizontal stare decisis:
                            a) Courts must follow their own decisions.
                            b) Across Circuits, decisions may be persuasive, but not binding.




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                vertical stare decisis:
               2.
                        a) District courts must follow their Circuit Court of Appeals decisions.
                        b) Supreme Court decisions are binding on all federal courts, and decisions on federal
                             issues are binding on all state courts.
                        c) State courts are not bound by federal court state law decisions.
                        d) When deciding state law cases, federal courts look to state supreme courts.
                        e) Federal district courts can follow state supreme courts, rather than Circuit Court of
                             Appeals.
       C. Distinction between stare decisis and issue preclusion:
            1. Rule of Thumb: the more abstract and general the rule involved (dissociated from the facts of
                the case, the more it is like a stare decisis question rather than issue preclusion)
            2. Issue preclusion is more mandatory in character, while stare decisis gives courts the freedom to
                overrule, distinguish, etc.
V. Claim Preclusion – Res Judicata (“the thing decided”)
       A. Goal:
            1. Doctrine of Merger and Bar lead to res judicata: you have one change and you must bring forth
                everything you can; a doctrine of finality applied in federal and state systems
            2. harmonize supp jurisd (what other supp claims you may bring), joinder (what other parties or
                claims may join) and res judicata (what other claims you HAVE TO bring)
       B. Justifications for Res Judicata:
            1. Judicial efficiency - saves resources of courts from trying the same case repeatedly.
            2. Fairness to  (Doctrine of repose)- once you have dragged a party into court, all matters should
                be resolved for all time (prevents harassment) – security that they’re not going to be sued over
                and over again on same events.
            3. Not unfair for P - he has had his “day in court” and should only get “one bite at the apple.”
       C. Authority for res judicata: first ct->second ct
            1. state->state: State courts must respect the decisions of other state courts under the Full Faith
                and Credit Clause of Article 4 of the Constitution.
            2. fed->state: State courts must respect the decisions of federal courts under the Supremacy
                Clause of Article 6 of the Constitution.
            3. state->fed: Federal courts must respect the decisions of state courts under the full faith and credit
                provision of 28 USC § 1738.
            4. fed->fed: Federal courts respect the decisions of other federal courts under a true common law
                doctrine.
            5. Note: this is different from mandatory and persuasive authority. This is dealing with judgment
       D. How to apply
            1. when someone is bringing same claim against you, you file motion for failure to state a claim
                under Rule 12(b)(6), ask for SJ
            2. Rule 8c: res judicata is a waivable defense
       E. Four prerequisites
            1. Final judgment in first action
            2. First judgment must be on the merits
            3. Parties the same in or in privity
            4. Applies to any claim that was brought or could have been brought arising out of the same
                transaction and occurrence.
                        a) Applies to claim based on any theories
       F. “final judgments.”
            1. Judgments become final when the time to appeal expires, court of appeals issues a decision, or
                when a court of appeals rejects an appeal.
            2. Other dispositions rendering finality:
                        a) Full trial.
                        b) SJ
                        c) Judgment as a matter of law (directed verdict or JNOV).
                        d) Default judgment (except for lack of PJ question).
                        e) Settlement with ct approval
                        f) Rule 41 dismissals
                                  (1) Without prejudice - not final.
                                  (2) With prejudice - final.

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      3.   NOT final judgment
                   a) Procedural dismissals under Rule 12 are not final judgments on the merits (but they
                       are final decisions as to the subject of the motion)
                   b) procedural or jurisdiction (SMJ, PJ, venue)
                   c) Unclear whether dismissal for failure to state claim under 12(b)(6)
                            (1) If allow amend and still fail, then judgment = on the merit\
      4. when you certify a question, is that considered necessary decided or necessary judgment?
      5. Exceptions for collateral attack on final judgments: but only in case of obvious lack of SMJ
           (very rare)
G.   Fetter v. Beale (King’s Beach, 1697) Res judicata
      1. P brought a battery action against D and recovered in a judgment.
      2. When P sought to bring another action for additional injuries suffered, D successfully pleaded
           res judicata.
      3. Court held these injuries were from the same transaction and occurrence and were issues that
           could have been raised had P not been so hasty
      4. Doctrine of merger and bar → get only one chance to sue on claims that you bring – must
           bundle together.
      5. All events that give rise to claims have to occur before claims can be merged.
H.   Des Moines Navigation and R. Co. v. Iowa Homestead (Sup Ct, 1887)
      1. Action #1:
                   a) Homestead sues D, Des Moines and D wins judgment.
                   b) However, there was no SMJ over this case (lack of diversity as both were Iowa
                       corporations).
      2. Action #2:
                   a) Homestead again sues Des Moines, which raises res judicata as a defense.
                   b) Homestead argues first judgment is null and void for lack of SMJ.
      3. Court:
                   a) First judgment is not void despite lack of SMJ.
                   b) In first case, the judgment was affirmed by State Supreme Court: final judgment.
                   c) The lack of SMJ must have been caught before final judgment (should have attacked
                       in the direct line of appeal in Action #1)
                   d) Value of res judicata trumps the lack of SMJ
                   e) 2nd action is barred by final prior judgment.
                   f) Even cases that have been decided w/o proper SMJ have res judicata value
      4. Note:
                   a) Compare Capron, in which lack of SMJ was raised on appeal.
                   b) Distinction between direct review and collateral attack is important.
                   c) Parties are only rarely allowed to collaterally attack a case for lack of SMJ in (see
                       exceptions above). This case was not ‘plainly obvious’ beyond the limits of SMJ (the
                       statute giving raise to case of action was not very clear)
I.   Ticor Title Insurance Company v. Brown (Sup Ct, 1994)
      1. Action #1
                   a) Ps enter into a settlement with Ds - settlement with court approval amounts to a final
                       judgment.
                   b) B/f approving settlement, ct must certify class action (makre sure class action is
                       valid)
                   c) Does not certified class with opt-out
      2. Action #2
                   a) Two Ps sue the Ds again (same parties - does not require all the parties to be the
                       same) arguing due process gives them the right to opt out of class.
                   b) Collateral attack of the certification of a class under Rule 23. Ps say that res
                       judicata doesn’t apply b/c their due process rts were violated in 1 st case. (parallels
                       Des Moines case – battle of SMJ vs. res judicata)
                   c) D raises the defense of res judicata.
                   d) the issue of whether this case should be certified under opt-in or opt-out is res
                       judicata. It is also res judicata that whether class action has constitutional right of
                       due process. Both of these decisions were decided in the trial court.
                   e) that whatever lower court decided holds, b/c of res judicata, cannot retrial it. cannot
                       re-open issue

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                             f) however, if rule 23 does not allow you to opt out, then rule 23 is unconstitutional
                             g) ignore the final judgment b/c there was a constitutional error, t/f can allow you to do
                                  this again
               3. Sup Ct: denies certiorari
                             a) In action #1, class should have been certified to allow opt-out
                             b) No need to address this b/c from this day forward, ct will use Rule 23 appropriately,
                                  then there would be no need for this kind of decision again.
                             c) If cts did it right, then action #2 would not matter
               4. O’Connor dissents: If Sup Ct doesn’t clarify the problem now, 9 th circuit ruling is the last word
                    and other cases that follow will be confused and misinterpret Rule 23.
5.   Rush v. City of Maple Heights (OH, 1958)
               1. P may maintain only 1 action to enforce his rights existing at the time such action is
                    commence (must include both personal and property injuries)
               2. P injured in motorcycle accident
               3. 1st action: P won for case for personal property injury
               4. 2nd action: from the same accident, P bring suit to claim personal injury
               5. no trial on the merits b/c question of liability was already litigated in Action #1 (issue
                    preclusion)
               6. Ct: No, P cannot split case, one on personal injury and one on property injury
                             a) Rejected minority rule: test of what evidence is required.
                             b) Accepted majority rule: one transaction and occurrence.
                             c) This is a case of a claim that “could have been brought.”
                             d) Stare decisis (treatment of Vasu precedent).
                                       (1) Ct does not overrule Vasu, rather distinguish it.
                                       (2) Issue splitting is different for indemnity/subrogation (insurance companies).
               7. Vasu was decided on alternative sufficient grounds:
                             a) There was a broad ruling (claims could give raise to separate clause of action) and a
                                  narrower one (indemnity)
                             b) Although the narrower holding is considered authoritative, neither statement is
                                  technically the holding and t/f no presidential force
        B. Jones v. Morris Plan Bank (VA, 1937)
               1. Installment payment plan for purchase of a car with an acceleration clause (if a single payment
                    is late, the entire balance becomes due).
               2. P bank brought suit against D buyer for two late payments and wins.
               3. P bank brings another suit for payment of further late payments and D raises the defense of res
                    judicata.
               4. Court: When the bank brought suit on the first late payments the entire balance under the
                    acceleration clause had come due.
                             a) Entire balance was a claim that could have been brought.
                             b) In effect, the bank split its claim - not allowed.
                             c) After payment of first judgment, the note had been satisfied.
                             d) Since D did not ask for rest of the balance, waive rights to it
               5. in K cases, any rights under the K when a suit is brought is waived unless you bring it also.
        C. Federated Department Stores v. Moitie (Sup Ct, 1981)
               1. 7 P’s sue under the Clayton Act, and complaints are dismissed for failure to state an injury
                    under the Act.
               2. 5 P’s appeal, and 2 re-filed their cases in state court, to which the D raises res judicata as a
                    defense and case was dismissed
               3. 2 P appealed, during which time law changed that now gives cause of action to Ps
               4. 9th Circuit:
                             a) unfair that the 5 Ps now have cause of action (under Schooner Peggy doctrine, as
                                  Cort v Ash)
                             b) However, 2 P’s are denied a new cause
                             c) Fairness should allow 2 P to try again
               5. Sup Ct: 2 P should not be allowed to try again
                             a) the value of finality is a firm doctrine not to be suspended for “fairness” or “public
                                  policy.”
                             b) Res judicata is not subject to case-by-case analysis
               6. Demonstrates the value given “bright line” finality given in federal courts.

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II. Issue Preclusion: Collateral Estoppel
        A. Principles:
              1. prior decision cannot bind parties who were not at the first action
              2. applies to only part of the case.
        B. Prerequisites
              1. Parties in 2 adjudications can be the same or partly different. (either P or D must be the same)
                           a) Can only be used (collaterally estopped) against party who was present in the prior
                                proceeding
                           b) Otherwise, violate due process rights. Everyone deserves their day in court
              2. Same issue in both actions  either issues of fact or application of law
                           a) If purely abstract legal question, then it’s stare decisis
              3. actually litigated in first action.
                           a) Issue must have been in dispute.
                           b) Not stipulated or conceded.
              4. necessarily decided in first action – essential to judgment.
                           a) Was this a logical precedent for a judge’s decision?
                           b) Problem with general jury verdicts (alternative grounds for deciding). (Russell)
                           c) Not a problem with special jury verdicts b/c jury will ‘check’ things off on form.
                                Know exactly what jury decision is based on
              5. necessary to the judgment in first action.
                           a) Problem with judicial opinions listing several alternative grounds.
                           b) Two or more alternative sufficient grounds get no preclusive effect for either ground
                                (if one ground is defective, it will not be appealed because the other ground is
                                sufficient: caution about perpetuating possibly defective and uncorrected grounds).
        C. Mutual Collateral Estoppel: (Cromwell)
              1. Applies when parties are the same.
              2. Distinguished from res judicata:
                           a) In res judicata, same nucleus of facts/set of events.
                           b) In collateral estoppel, may have only a few facts in common, but will have a
                                different set of facts and possibly a new theory of law (clearest example is events
                                separated in time).
                                     (1) Action #1: P sues D for violation of an easement in chopping down
                                          firewood and wins the case.
                                     (2) Action #2: D again chops down firewood, and the issue of the easement is
                                          not relitigated (D had his chance to fight this determination).
        D. Non-Mutual Collateral Estoppel
              1. when only 1 of the parties is the same (either P or D)
              2. Offensive: “Offensive use of collateral estoppel occurs when the P seeks to foreclose the D
                   from litigating an issue the D has previously litigated unsuccessfully in an action with another
                   party.” (quoting from Parklane). Used as a sword to push claim through
                           a) ex: P sue D for value of firewood on P’s land. D answers and asserts easement. Ct
                                held in favor of D. a few days later, D goes to P’s land to get wood again. P again
                                bring suit against D. D can collaterally estopped P from contesting the issue of
                                easement since that was already decided at a prior action
                           b) 4 prerequisites for collateral estoppel must be met, and the court must consider
                                add’l factors including:
                                     (1) Does this encourage a “wait and see” approach? Sideline sitting
                                     (2) Did D litigate the first case aggressively enough?
                                     (3) Was the D at a procedural disadvantage (since he did not choose forum)?
                                     (4) One or more prior inconsistent judgments may make giving preclusive
                                          effect to one unfair.
                                     (5) Was there a lot at stake in the 1st action? Was it easily foreseeable during 1st
                                          action that there would be a 2nd action
                                     (6) Could P had elected to join in the 1st action but just elected not to
              3. Defensive: “Defensive use occurs when D seeks to prevent a P from asserting a claim the P has
                   previously litigated and lost against another D” (quoting from Parklane) Blonder-Tongue.
                   Used as a shield – “You, P stop suing me.”



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                  a)   ex: A->B for trespass. B answers that A does not own land. Ct agrees and hold in
                       favor of B. A few days later, C goes to A’s land and A->C for trespass. C files an
                       answer and collaterally estop A from claiming that it is A’s land
E.   Cromwell v. County of Sac (Sup Ct, 1876)
      1. P in both actions are in privity
      2. Action #1:
                   a) Legal decision made concerning status of bonds: fraudulently issued.
                   b) Rule that you could not collect unless you were a bona fide purchaser (this is more
                       of a stare decisis broad principle).
                   c) P lost b/c couldn’t prove that he was a bona fide purchaser
      3. Action #2:
                   a) Only collateral estoppel effect for the fraudulently issued status of the bonds.
                   b) Whether P acquired these bonds as bona fide purchaser is new , unlitigated issue.
      4. estoppel of a judgment in 1 cause of action to an action arising out of another cause of action
          applies when the issue in question was actually litigated and determined in the first action
F.   Russell v. Place (Sup Ct, 1876)
      1. Action #1:
                   a) P wins a judgment for infringement of his patent.
                   b) General jury verdict, decision could have been based on violation of either, or both
                       of the parts of the patent
      2. Action #2:
                   a) No preclusive effect for judgment in case #1, as it is unknown whether the jury found
                       an infringement of one part of the patent or the other, or both.
      3. collateral estoppel applies only if the precise issue in question has been litigated and
          determined in the former suit
      4. note: the 2nd action is the exact patent, same exact situation. Then wouldn’t the reason applied to
          1st action also apply to the 2nd. Doesn’t matter what reason jury found on in action #1 b/c both of
          those reason is still there
G.   Bernhard v. Bank of America (CA, 1942) Traynor
      1. old lady lives with Cook. Transfer $ to Cook’s account
      2. Action #1:
                   a) P sue Cook for accounting of fund, challenges $ Cook took
                   b) Ct held that $ was gift, held in favor of Cook
      3. Action #2:
                   a) P sue D, claim that D should not have given $ to Cook
                   b) D asserts defensive collateral estoppel: preclude relitigation of who owns a bank
                       account
                   c) P oppose b/w would violate mutuality rule
      4. Ct: found no reason to keep the mutuality requirement.
                   a) Not unfair to the party against whom the preclusion is asserted (she had her day in
                       court to litigate this issue and lost).
                   b) Waste of judicial resources to relitigate this issue.
                   c) Would allow a P to switch adversaries to try again if she lost against one D
                       (“gaming table”).
      5. party may assert collateral estoppel even though there was no mutuality, must be in privity
      6. Court identifies three questions:
                   a) Was the issue in the prior adjudication the same?
                   b) Was there a final judgment on the merits?
                   c) Was the party against whom the plea is asserted a party or in privity with a party to
                       the prior adjudication?




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H. Blonder-Tongue Laboratories v. University of IL Foundation (Sup Ct, 1971)
      1.  Action #1
                  a) P patent holder (University) had sued a D1 in a patent infringement action, and the
                      patent was held to be invalid.
      2. Action #2
                  a) P patent holder sues D2 for the same patent infringement
      3. Sup Ct: overrules the mutuality requirement
                  a) Permitting repeated litigation wastes judicial resources and reflects the “aura of the
                      gaming table” (follows reasoning of Bernhard).
                  b) Specifically in patent cases where it’s very expensive to litigate
      4. although Sup Ct was very specific about this case being a patent case. This case have come to
          mean that nonmutual collateral estoppel may be applied defensively against a party who had a
          full and fair opportunity to litigate the issue in a prior proceeding
I.   Parklane Hosiery Co. v. Shore (Sup Ct, 1979)
      1. Action #1
                  a) SEC sue D for violation, misleading proxy statement
                  b) Ct held in favor of SEC
      2. Action #2
                  a) piggyback case, P’s sue D for same SEC violation
                  b) P: asserted the D was collaterally estopped from relitigating the fraud issue
                      determined in the government’s suit.
      3. Ct: allow action to continue
                  a) suspends the mutuality requirement for offensive use and replaces it with a rule of
                      discretion, giving judges discretion to allow offensive use.
                  b) Offensive use is not so efficient: encourages a wait-and-see attitude and no
                      incentives to consolidate claims.
      4. judge has discretion to apply offensive collateral estoppel, must decide if the D was given a
          full and fair chance to litigate.
                  a) D could have been at a procedural disadvantage (i.e. inconvenient forum) and not
                      had a “full and fair opportunity to litigate.”
                  b) D may not have anticipated the full extent of liability in a first case, so it may not
                      have defended as vigorously as it could have.
                  c) Is there prior inconsistent judgments that was favorable to D? would be unfair since
                      D cannot use a previous favorable judgment to defend itself since P is a different
                      party
                  d) Is the P “gaming”?
J.   Martin v. Wilks (Sup Ct, 1989)
      1. Action #1:
                  a) Black firefighters settled with city in consent decree for city to engage in reverse
                      discrimination activities
      2. Action #2
                  a) White firefighter sue city, challenging the consent degree
                  b) White firefighters could have intervene in the first action but didn’t. however, the
                      remedy of the 1st action now affects whites
                  c) City: assert defensive collateral estoppel
      3. Sup Ct: P’s suit is not precluded:
                  a) P was not a party to the first action, so they are not bound.
                  b) System never requires 3rd party to intervene in an action. Intervention as of right, not
                      required under Rule 24.
                  c) The burden to join necessary parties (under the limits of Rule 19) is better left on
                      parties to the action:
                           (1) Have better knowledge of the interests affected.
                           (2) People on the sidelines might not be aware of the lawsuit.
                           (3) If parties fail to join parties under Rule 19, they cannot complain when
                                those parties are not bound by the judgment.
                  d) A party seeking a judgment binding on another cannot obligate the latter to
                      intervene in the action w/o mandatory joining that person in the action
      4. After Martin, there was a proposal to modify the Civil Rights Act so to require intervention
          condition on notice to 3rd party but this was not passed. Still a problem in the law today

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K. Antrim Mining v. Davis (M.D. PA, 1991)
     1.   Private parties tried to modify joinder regime by writing their own K
     2.   in K, a ‘zipper’ clause that binds all parties or potential parties of this matter
     3.   Ct: K provision invalid. undermine basic feature of legal system where each individual gets
          his day in court




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