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Civil Procedure I - Fall 2009

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					Civil Procedure I – Fall 2009 – University of Miami
Word List Attachment Cause of action Choice of law Common law Constructive service Counterclaim Cross-claim Declaratory judgment Demurrer Directed verdict Discovery Erie Fact pleading Fair Play & Substantial Justice Federal question jurisdiction Forum non conveniens General jurisdiction In rem In personam Interpleader Interrogatories Judgment as a matter of law Judgment N.O.V. Klaxon rule Long-arm statute Motion to dismiss Notice pleading Opportunity to be heard Personal jurisdiction Personal service Preliminary injunction Quasi in rem Remittitur Res judicata Rules Enabling Act Rules of Decision Act Service of process Special appearance Specific jurisdiction State Sovereignty Summary judgment Temporary restraining order Transfer of venue

General Sources of Civil Procedure  FRCP  Common Law Stages in a Civil Lawsuit 1. Determining what claims to bring 2. Determining where to sue a. Personal jurisdiction i. General v. specific b. Venue c. Subject matter jurisdiction i. Federal courts – generally can hear 3 main types of cases: 1. Cases arising under federal law 2. Diversity suits over $75K 3. State law claims that arise out of the same basic facts as the above (2) types (supplemental ju) 3. Pleading the case a. Amending the pleadings 4. Determining who will sue and be sued a. Joinder b. Intervention 5. Discovery 6. Resolving the case before trial a. Dismissal b. Summary judgment 7. The trial a. Jury trial issues i. Jury selection ii. No jury – judgment as a matter of law b. Other trial issues – admissibility of evidence 8. Effect of a Judgment a. Stare decisis


Personal Jurisdiction
1. Courts need Personal jurisdiction over defendants. a. Personal jurisdiction tells us in what states the litigation may be filed. b. Analysis is the same as state court: In state presence, doing business, domicile; long arm jurisdiction; constitutional contacts issues. c. Two considerations: Constitutional power, statutory power Two basic types of personal jurisdiction i) In personam – jurisdiction over the person; obtained by serving the D personally with process ii) In rem – jurisdiction over property (1) Judgment is limited to the value of the property; obtained by seizing the property (a) Quasi in rem – action brought for purposes other than competing rights over property Pennoyer v. Neff  The original. Set the limits on jurisdiction. o Emphasized territorial sovereignty: ―…every state possesses exclusive ju and sovereignty over persons and property within its territory…‖ o Held that a court could exercise in personam ju over any person, and in rem ju over any property, found w/in its borders at the time the suit was commenced. (The law has evolved since then.)  In personam: must be served personally AND be within the forum state  In rem: must attach the land within the forum state BEFORE the suit begins  Exceptions: recognized at outset (divorce, implied consent). Miliken v. Meyer


International Shoe v. Washington (PJ based on sys. & cont. contacts)  Established the basic minimum contacts test which is still used today.  D must have ―minimum‖ or ―sufficient‖ contacts with forum state… o considers quality/nature of the contacts. More contacts, less need to be related; less contacts, more needs to be related  …AND maintenance of suit must not offend traditional notions of fair play and substantial justice  Level of contacts necessary depends on whether the suit arose from the contacts (specific ju) or was unrelated to the contacts (general ju). o General ju: contacts are so continuous & systematic that it would be reasonable to hold PJ over the D for any type of lawsuit, even a suit that arose elsewhere. (and FP&SJ)  Physical presence  Individual: domicile  Business: State of incorporation or principal place of business. Test for PPB:


 HQ (nerve center – where decisions are made) OR  Major production or service activity (muscle center)  When D consents to jurisdiction (carnival) Specific ju: the lawsuit arose out of D‘s minimum/sufficient contacts with the forum state  Purposeful availment  Also, FP&SJ.


CASE PJ? Y McGee v. International Life Ins. Hanson v. Denckla Shaffer v. Heitner WWV v. Woodson Asahi Metal Ind. v. Superior Ct. Burger King Corp. v. Rudzewicz Calder N N N N Y Y

Insurance K; Single Act. K was formed in state; nonresident D bought ins company after and maintained the relationship. Trust; No purposeful availment. Trust created in PA, no office in FL. Min. contacts must exist in order for in rem ju to attach. Fleshed out min contacts. MODERN TEST: Two elements: 1. Purposeful contacts bn D and the forum. 2. Exercise of ju must be fair. Stream of commerce – P must purposefully avail himself by more than just putting a product into the stream of commerce. Maj. Agreed on min contacts, but not on fairness. K; continuous obligations. Once min contacts are established, it‘s up to D to prove upholding suit would be ―fundamentally unfair‖ Libel; (intentional) Tortious out-of-state conduct. P in Cali brought defamation suit against writer & editor in FL. Calder effects test: effects/harm of out-of-state conduct is suffered in forum state. Ds should anticipate being haled into court there. In-state purchase; no gen ju. Divorce; transient presence. ―tag‖ jurisdiction on a D who is physically present comports with due process; min contacts not necessary. Non-resident motorist statute; Implied consent Divorce/domestic relations; no purposeful availment FSC; Reasonable forum selection clause establishes ju by consent.

Helicopteros Burnham Hess Kulko Carnival Cruise Lines


FOUR WAYS TO ESTABLISH MIN CONTACTS FOR SPECIFIC PERSONAL JURISDICTION: 1. Purposefully direct activities toward forum state -Intentional tort, effect on person in state, express aiming -Int‘l Shoe, McGee, BK, Denckla, WWV 2. If based on stream of commerce, could D reasonably anticipate being hailed into court there? (Asahi) -Brennan: stream enough -O‘Connor: need more, e.g., targeted advertising -Stevens: volume qty, hazardous 3. If based on business relationship with in-state company/person, how substantial are the relationship and connections? (Burger King) -Who negotiated the business relationship? -Prior negotiations? Where? -Contemplated future consequences/work? -Terms of the K (choice of law/length) -Parties‘ actual course of dealings -Any terms regarding regulation by one party that is HQd in forum state -Did D purposefully direct activities toward forum? 4. If involves internet, (Zippo sliding scale) -passive (no interaction) – likely no ju -active – likely ju -middle ground – go back to calder effects/express aiming test


FAIR PLAY & SUBSTANTIAL JUSTICE  (1) Burden on the defendant  (2) Forum state‘s interest in the matter  (3) P‘s interest in a convenient forum  (4) Interstate judicial system‘s interst in efficient resolution of controversies  (5) Shared interests of several states in furthering substantive social policies  Usually satisfied if there are min contacts and case arises from contacts o Exception: Asahi NOTICE and OPPORTUNITY TO BE HEARD: other prerequisite for exercising personal ju; usually comprised of a summons and complaint  Due Process Clause of the Fourteenth Amendment requires that D receive adequate notice of the litigation. o Constitutional requirements: Notice must be reasonably calculated to give actual notice to the parties being served (Mullane)  SERVICE OF PROCESS: is the method by which you notify someone about a lawsuit. ―Process‖ is the papers themselves. 1. Basic idea: Deliver to D(1) a summons (formal court notice of a suit and time for response) and (2) a copy of the complaint. Together, these are called ―process.‖ Must serve process within 120 days of filing the complaint or else case will be dismissed without prejudice (can refile). (If plaintiff shows good cause for failing to serve within 120 days, the case will not be dismissed.) Statutory requirements: Did service of process comply with State or Federal court rules? o STATE: Long-Arm Statute: dictates service of process for an out-of-state defendant o FEDERAL: FRCP 4: governs service in a federal action The mechanics. Process may be served by any nonparty who is at least 18 years old. The federal district court may use any method of service permitted by (1) the FRCP (below) or (2) the law of the state in which it sits or (3) the law of the state in which service is effected. FRCP methods— o Personal service: Papers are given to D personally anywhere in the forum state. o Substituted service: Valid if: (1) it is defendant‘s usual abode; (2) serve someone of suitable age and discretion who resides there. o Agent Service: Process can be delivered to D's agent authorized to receive service. For example, when serving a corporation, can serve registered agent or a managing agent or an officer. Or litigant might appoint an agent to receive service of process. Or the agent might be appointed by operation of law, e.g., state officer under the nonresident motorist statute. o Out-of-State: Process is delivered to D in another state. Valid only if state law allows (for example, with a long-arm statute). A federal court in New York basically can exercise personal jurisdiction over an out-of-state defendant only if New York state courts could do so.  Two minor exceptions: serve out of state even without state law when (1) bulge rule applies or (2) statutory interpleader. (see below) o o o  A fed court can serve by the methods listed in FRCP4 or by borrowing the law of the state in which the fed ct sits or in which service occurs. Special service to special Ds, e.g., infants, incompetents, foreign Ds, and the gov. Notice and contacts required. FRCP4(k). Service alone does not create ju. A fed ct can exercise ju only if the courts in the state where the fed ct sits can exercise ju over that D.

 

Waiver FRCP 4(d): alternative to service; a party suing in fed ct may ask a D to waive service. o Process is mailed to D first class mail, postage prepaid. Valid if D returns waiver form w/in 30 days. o Avoids the costs of serving summons.  Carrot: If D waives, gets an extra 20 days to answer.  Stick: If D fails to waive, court must impose the costs of actual service on D. o Invalid when D is an infant, incompetent, gov unit or officer.


o Waives only the requirement of formal service. Property Interest & Opportunity to Be Heard: To comply with due process, notice and an opportunity to be heard must be provided prior to seizure of any protected property interest. o Three part test to determine if D received due process: (1) nature of the property interest involved? More significant→more protections req‘d; (2) risk of erroneous deprivation? Is there a security requirement? (3)what is the interest of the party seeking a prejudgment remedy? (prior interest of plaintiff? Speculative?)


LONG-ARM STATUTE: (1) Is pers ju consistent with the state long-arm statute? If yes, the

(2) Is pers ju consistent with the Due Process Clause (i.e. shoe & company)
Challenges to Personal Jurisdiction: pers ju is a personal defense that can be waived by inaction or by taking acts inconsistent with the defense. Trad rules were strict; FRCP relaxed them somewhat. Traditional: defending yourself in any fashion waived any PJ defense Default and collateral attack: D‘s only option was to do nothing. If D never appears, court enters a default judgment against him. D can challenge ju if P attempts to enforce the default judgment elsewhere, arguing that is was invalid bc the court lacked ju. Very risky. If D appears, D is deemed to have waived PJ. Only issue that D can raise in second action is PJ; if D loses on PJ, D can‘t argue the merits of the case. Special appearance: many cts allow a D to make a special appearance to argue only PJ. Limit: If D raises any other issues, he has made a general appearance and thereby waives the ju defense. Federal approach: FRCP12(g) and (h). Time limits: No later than the answer. If D makes any pre-answer motions, PJ defense must be included or it is lost. If D loses, can still litigate on the merits and raise ju issue again on appeal.

VENUE: US 28 § 1391 (p. 355)
Once properly in Federal Court, to which district do you bring the case?  There may be more than one proper venue.  Check for specialized venue statutes.  States also have their own varied venue statutes. 1. Cases filed originally in federal court: a. Where proper: § 1391(a) and (b) In any case (Federal Question or Diversity), plaintiff may lay venue in any district where the following is true: i. All defendants reside in the same district, or 1. Special Rule: if defendants reside in different districts of the same state, venue is proper in the district where any one of the defendants resides. ii. Where a substantial part of the claim arose. 1. If no district anywhere in the U.S. meets either of these two choices (and that will rarely be true: basically only when there‘s no district where all defendants reside and the claim arose overseas), then: a. in diversity of citizenship cases, any district where any D is subject to personal jurisdiction. b. in federal question cases, any district where any D is found. b. Determining Residency: i. Individuals: Residence usually equals domicile. So it is usually the same as an individual‘s citizenship for diversity of citizenship jurisdiction purposes. ii. Corporations: § 1391(c) ―resides‖ in all districts where the corporation subject to personal


jurisdiction when case commenced. (i.e. anywhere it transacts business). 1. Note: Don‘t confuse with corporation‘s citizenship for diversity jurisdiction. Ford Motor Company is a citizen of Delaware (inc.) and of Michigan (ppb). But it is a resident of every district where subject to personal jurisdiction (likely everywhere). iii. Aliens: § 1391(d) may be sued in any district. 1. As a practical matter, the court must also have personal ju over the alien defendant. (Dee-K) 2. Case involving alien and citizens: if a P sues an alien and a U.S. citizen, courts interpret § 1391(d) to mean that the alien is deemed to reside in every district in the U.S. Thus, venue would be proper under § 1391(a)(1) or (b)(1) where the U.S. citizen resides. c. Local Actions. Actions re: ownership, possession or injury to land (including trespass) must be filed in the district where the land lies. 2. Cases filed in state court, removed to federal: goes only to the federal district embracing that state court. a.

Transfer of Venue.

from one federal district court to another; can only transfer to one where case could've been filed (one that is a proper venue and where there is personal jurisdiction over the defendant, without waiver by the defendant). Two kinds: i. Where venue is PROPER: Under § 1404 (p. 358), court can transfer for (1) convenience of parties; (2) convenience of witnesses; (3) ―interests in justice.‖ 1. Triggering event – upon motion or consent or stipulation; court has broad discretion. 2. New court applies the choice of law rules of the original court, even if plaintiff initiated the transfer. 3. Under common law, a court can also DISMISS a case on grounds of forum non conveniens (FNC)(Piper) ii. Where venue is IMPROPER: court can § 1406 (p. 358) 1. TRANSFER in the interest of justice or DISMISS.


aka Beast of Burden. (Piper) court-created doctrine, applicable in state & fed cts, that gives a court discretion to dismiss an action even though venue is proper. A court will dismiss on FNC only if: i. an alternate forum is available to hear the case; ii. private & public factors warrant dismissal. 1. Private interest factors: (convenience) Location of relevant witnesses and documentary evidence, availability of subpoenas power to compel attendance of unwilling witnesses, possibility to view premises involved in dispute 2. Public Interest Factors: (interests of judicial system) court congestion, Localized interest in having localized controversies decided at home, Burden in unrelated forum re: jury duty, Avoiding application of foreign law or conflict of laws c. 1404 v: FNC: i. Federal Courts: 1. 1404 only applies in federal courts (state courts likely have their own state statutes). 2. Forum non conveniens doctrine is common law that applies in both. ii. Who May Raise: 1. Only D may request dismissal for forum non conveniens (plaintiff may voluntarily dismiss). 2. Both P and D may seek a section 1404 transfer. iii. Judge Discretion: Judge has more discretion under section 1404 than under the FNC doctrine.

Forum Non Conveniens.



SMJ is an issue in both state and fed courts. 

a court‘s power to hear a particular dispute.

Federal courts have limited jurisdiction. Their SMJ is limited by the Constitution Art. III, section 2) and federal statutes. Congress need not (and do not) confer subject matter jurisdiction to the full extent the Constitution allows. Unlike other defenses, any party may challenge SMJ at any time. A court may also raise the issue sua sponte.


Two basic categories of federal SMJ: (1) Federal Question and (2) Diversity of Citizenship (including alienage). 1.

Federal Question Cases:

(The elevator) 28 U.S.C. § 1331 (p. 341)

―The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.‖
a. Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution, legislation). b. Citizenship irrelevant; no amount in controversy requirement. P is enforcing a federal right. c. Helps ensure that laws of national scope are interpreted uniformly. d. Exclusivity: Under 1331, most federal questions do not have to be brought in federal court; they can be brought in state or federal court. i. Most litigants prefer fed court for the shorter dockets, greater sympathy to their claim, and other reasons. ii. Burden is on the P who chooses to invoke 1331 to include a statement with the complaint alleging that the requirements are satisfied. iii. Exclusive federal jurisdiction: some cases can only be brought in federal court. 1. Ex: patent infringement and some federal securities law cases.) e. Sources of federal questions: Under 1331, the claim must arise under one of: i. Constitution ii. Federal law, including statutes and a limited body of federal common law iii. Treaties with other nations f. However, the federal claim must be substantial and not frivolous. g. Well-pleaded complaint rule. P must present the federal question on the face of the complaint. If the complaint were well-pleaded, just stating P's claim, without extraneous material, would it be federal? Ask -- IS P ENFORCING A FEDERAL RIGHT? If the answer is yes, it's a FQ case. If the answer is no, it is not a FQ case. (Louisville &Nashville RR v. Mottley) 1. Example: P sues D, and D claims federal statute as a defense. This is not a federal question case because the plaintiff is not enforcing a federal right. 2.

Diversity of Citizenship:

(The stairs) 28 U.S.C. § 1332 (p. 341) Two requirements— (1) amount in controversy must exceed $75,000, and (2) the action must be between citizens of different states or between citizen of state and a citizen or subject of a foreign country (―alien‖). a. Not exclusive: Div ju is not exclusive. The same action may be filed in state courts. b. Complete Diversity Rule: No diversity if any plaintiff is a citizen of the same state as any defendant. A plainti ff and a defendant cannot be co-citizens (domiciled in same state). (Strawbridge)


i. Alienage Rules: Must have a citizen of a state on one side and an alien on the other. 1. Cannot be between two aliens. 2. Permanent resident aliens: An alien admitted to U.S. for permanent residence is treated as a citizen of the state in which he is domiciled. 3. U.S. citizens domiciled abroad: A U.S. Citizen domiciled in a foreign country is not an alien, but is also not a citizen of a state  Cannot sue or be sued in federal court under diversity ju (must go to state court). 4. Alien domicile irrelevant. If a person is a citizen or subject of another nation (and not a US permanent resident), it doesn‘t matter where that person is domiciled. c. Establishing Citizenship for Diversity Purposes: i. For Individuals: Domicile is the focus, and it is established by two concurrent factors—(a) Presence in the state at some point WITH (b) the intent (subjective) to make that state your permanent or fixed home. a. No single factor is determinative: courts look to all relevant evidence of intent, e.g., instate tuition, voting. But, a person has only one domicile at a time (so a human can only be a citizen of one state at a time). b. Students: courts are reluctant to conclude that someone who moves to a state for school have changed domicile. Has no effect on determining residency for tuition purposes. c. Infants/minors: domicile of parents until they reach age of majority d. Diversity is measured at the time the action is filed. 2. For Corporations: § 1332(c)(1) don‘t talk about domicile. Corporations are citizens of: (1) all states where incorporated (usually there‘s only one) AND (2) its one principal place of business (PPB). Thus, a corporation (unlike a human) can have two citizenships. Note: no matter how big the corporation is, it only has one principal place of business. Tests for PPB: i. Nerve center test: headquarters -- where decisions are made OR 1. Nerve center usually PPB unless all activity in one state. ii. Muscle center test: major production or service activity. iii. Synthesis: of the two→ where the bulk occurs.

Corporate activities/total activities
3. For Unincorporated Associations (e.g., partnerships, labor unions) look to: the citizenship of all members. A Partnership is a citizen of all the states where its partners (general and limited) are citizens. a. Note: If partners are citizens of all states, partnership is citizen of all states, and there can be no complete diversity if a US citizen is suing. 4. For decedents, minors, and incompetents, look to: § 1332(c)(2) the citizenship of the person being represented, not the citizenship of the representative. 5. For Class Actions: look to the citizenship of the class representative. d. Amount in controversy. There must be a good faith allegation that the claim in the complaint alone exceeds $75,000, exclusive of interest and costs. i. Claim: Whatever the plaintiff claims in good faith is OK unless it is ―clear to a legal certainty‖ that plaintiff cannot recover more than $75,000. (Ex. If plaintiff claims punitive damage which pushes his amount over $75k, and jurisdiction does not permit punitive damages on that claim, the claim will be dismissed). ii. For multiple plaintiffs: if one claim is greater than $75K and the other claims are factually


related, the parties may use supplemental jurisdiction to bring the entire case to federal court. 1. Ordinarily, the parties may not aggregate their claims. Aggregation is only possible where plaintiffs present a joint claim. iii. Aggregation: Single P can aggregate claims (even unrelated) against single D. Single P cannot aggregate claims against multiple D‘s to meet the $75K+ amount.  Exception: can have multiple Ps or Ds where a common, but undivided interest exists. o Multiple Ps: E.g., partnerships asserting joint rights; jointly owned property. o Multiple Ds: where Ds are jointly and severally liable, there is a common, undivided interest. E.g., claims against joint tortfeasors (two people commit an injury with common intent)  CAREFUL HERE! Aggregation is not permitted simply bc the claims arose from the same transaction--the key is joint liability. 1. Injunctions: How are they valued? a. Majority view (plaintiff‘s viewpoint): is P hurt by more than $75K? b. Minority view (defendants viewpoint): is D going to pay more than $75K? 2. Recovery: If plaintiff ultimately recovers less than $75,000, jurisdiction is OK, but he may be liable for costs even though she won the case. iv. Exclusions: Even if diversity is met, federal courts will not hear cases involving the issuance of a divorce, alimony or child custody decree; or to probate a decedent's estate. v. Collusion. § 1359 No subject matter jurisdiction when a party ―has been improperly or collusively made or joined to invoke jurisdiction.‖ Mere collection agents are not allowed (no interest). Ex: D and C are both GA residents. D wants to sue C for BOK in fed ct, so D assigns the K to P, a citizen of SC, for the sum of $1 plus whatever P recovers from D. Diversity was manufactured, so fed cout will not exercise ju. IMPORTANT: Additional Claims: For every single claim joined in federal court, we must have a basis of subject matter jurisdiction. If the claim is not supported by diversity of citizenship or alienage or FQ, then try: 3.

Supplemental Jurisdiction. § 1367

(Ameriquest/Szendry) This allows a federal court to hear claims over which it would not otherwise hear when those claims are brought along with related claim over which the court has SMJ. Reasons for supplemental ju:  Efficiency – for courts and litigants  Consistency – if divided, might get inconsistent findings of fact (undermines legitimacy of system)  Enables D‘s to bring in defensive weapons  Without, Ps might just go to state court and there would be no federal review o Fed courts have expertise in Fed Law BUT state courts have concurrent ju

THREE STEP PROCESS:  1367(a) Is there a common nucleus of operative fact? Is the claim in question sufficiently related to the case over which the court has Under Ameriquest, ―a diversity or fed Q ju? Are they part of the same case/occurrence/core transaction?
loose factual connection may be sufficient so long as those facts are both common and operative.‖ p. 208

***If no, then no supp. ju. If yes, then:


1367(b)  Applies to diversity cases and claims brought by P.  Even if 1367(a) is satisfied (common nucleus), court can‘t exercise ju if doing so would defeat diversity ju.  E.g. if BK is found to be a citizen of FL and P is a citizen of FL, can‘t take claim against BK even if it meets 1367(a)  PURPOSE: so Ps can‘t evade the strawbridge complete div rule to first sue diverse D then add nondiverse P for 75K or less.

 1367(b) Are there any mandatory exceptions? Diversity: 1367(b) bars the use of supplemental ju where ju over the original federal claim is based solely on diversity (1332). By plaintiffs: Under claims w/ ju based solely on 1332, no ju over claims by Ps against Ds who are made parties under… Listed Rules: FRCP 14, 19, 20, 24 or who seek to intervene as Ps under FRCP 24.  1367(c) Are there discretionary exceptions? The district court may decline supp ju if: o The claim raises a novel or complex issue of state law  E.g. yet-to-be addressed difficult questions, novel and involves issues normally belonging t state and public policy, novel and the main isue o The state law claim substantially predominates over the fed law claim  ―Predominant‖ if they are numerous, more complex, take more time o The district court has dismissed all claims over which it has original ju o Exceptional circumstances; other compelling reasons for declining ju.
1376(c) Szendry: state law claims are ―predominant‖ if they are more numerous, will take more time, and policy issues are greater.

Removal: § 1441(statutory authority), § 1446 (procedure)
In some cases, 1441 allows a D to remove a case filed in state court to federal court. Purpose:  In diversity cases, protects D from local bias.  In federal Q cases, allows D to have claim litigated in its ―natural‖ forum  Distinguished from transfers: removal is a matter of right. When case is removable:  Generally, the case is removable if it could have been filed in federal court.  The federal court to which the case is removed must have (over ALL claims):  Diversity,  Federal Q, and/or  Supplemental ju.  When removal is based on diversity,  1441(b): if state court is D‘s home state, then D cannot remove.  Diversity must exist both at the time the file is claimed and at the time of removal. (Strawbridge)  Check for complete diversity: indiv. Domicile, corporate inc/ppb, $75K minimum  Diversity case cannot be removed more than one year after it is filed  When removal is based on federal Q,  Well-pleaded complaint rule is applied.  Federal Q is determined at the time of removal, not when the case is filed.  Therefore, if P amends complaint by substituting a federal claim, D can remove.  Artful pleading doctrine: if a P tries to disguise her federal issue by using state law terms bc she wants the case to stay out of fed courts, the case can still be removed on federal Q.  When removal is based on supplemental ju,  Analysis works the same as if claim had been filed in fed court  Nonremovable cases: 1445 forbids certain types of cases from removal. E.g. workers comp.  Other bases for fed ju:  United States a party?  Admiralty or Maritime Case?  Some other applicable federal jurisdictional statute?  If yes to any of the above -- then fed ju  Is the controversy between STATES?  Then original ju in SUPREME COURT



Process:  Only D can remove a case. P may not remove, even if D has filed a counterclaim.  ALL DEFENDANTS must agree to remove. If there is one holdout, no removal.  Exception: If there is a ―separate and independent‖ federal Q claim against one defendant, he can remove the whole case, but the court can remand state law issues.  Ex. P sues in state court against D-1, for violating a federal right, and D-2, for violating a state law right. There‘s no diversity. Can D-1 remove? Maybe!  The entire case must be removed as a whole. If one or more claims do not fit w/in 1441, no removal.  Exceptions: 1441(c) allows removal of certain ―special and independent‖ [fedQ only] claims.  No ―motion‖ to remove – simply file notice of removal.  If P disagrees, P moves to remand in fed court so the fed court decides the Q of fed SMJ  Removal must occur within 30 days after D receives notice that she is party to a removable state court case.  Defendant‘s Waiver of Right to Remove:  Defendant files permissive counterclaim (FRCP 13(b)) in state court: probably waives right to remove.  Defendant files compulsory counterclaim (FRCP 13(a))in state court: probably does not waive right to remove.

Counterclaims – FRCP 13(a)(b) • 13(a) Compulsory counterclaim – D Must make claim (now or lose it) if claim arises out of same transaction/occurrence and does not require adding additional party that crt can‘t acquire JU over • 13(b) permissive counterclaim – D MAY make claim (now or later) over opposing party that do NOT arise out of same events. • Again, Fed Court must have basis for SMJ Joinder Tidbits – FRCP 18(a) and 20(a)(1)-(2) • FRCP18(a) – P can join ―as many claims as it has‖ against opposing party even if unrelated BUT they can only be heard in Federal Court if basis for SMJ over each claim • 20(a) (1) and 20(a)(2)– to join as coP‘s or CoD‘s the ‗s claims against D must arise from same series of events and involve litigation of at least one common question of law or fact



Erie Doctrine (Choice of Law)
When does a federal court apply federal law and when does it apply state law?
(Generally only comes up in diversity of citizenship cases.) Get ready, this one‘s a doozy.

Main gist: • FEDERAL COURTS SITTING IN DIVERSITY (or overseeing state supp claims in a federal question case) MUST OBSERVE STATE SUBSTANTIVE LAW WHETHER MADE BY LEGISLATURES OR BY JUDGES. • BUT, federal courts are free to apply their own rules of procedure. • The overarching question to ask for EVERY Erie issue is: Is the federal rule in question substantive or procedural? • Use ―tests‖ from York, Bird, and Hanna to analyze the question and come up with ―best guess‖ on how a court would rule

Policy: in all cases where a fed court is exercising ju solely bc of diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same… as it would be if tried in state court. For FAIRNESS. So we respect STATE SOVEREIGNTY. Twin aims of Erie: (1) avoid forum shopping, (2) equitable administration of the laws Guided Erie (Hanna): A codified federal rule & a state rule or practice:

Always ask:

Is it fair?

Is there a valid fed rule or statute directly on point? Does it CONFLICT or clash?
For hypo: Find that rules DON‘T conflict that you can go through the tests. If yes→ Is the rule (FRCP) constitutional?  In the case of FRCP, does rule comport with the REA (28 USC §2072)? Is it arguably procedural and does not ―abridge, enlarge, modify any substantive right?‖ Must tell why in analysis. Yes to both→ federal rule prevails. (Supremacy clause (ArtVI) makes duly enacted fed law ―the supreme law of the land‖)

Unguided Erie: A federal practice (not a codified rule) & a state practice or rule: 1. Outcome Determinative Test York Will applying the federal rule instead of the state rule lead to a different outcome? If yes→ state rule should be applied
(a state law is considered SUBSTANTIVE if it can change the outcome, no matter how procedural it looks on its face)


2. Modified Outcome Determinative Test 1. Is the state rule ―bound up with state created rights and obligations?‖
  If yes→ substantive state interest; state rule prevails If no→ go through rest of test 2. Is it outcome determinative? (York)  If no→ probably procedural; if yes→go to step 3 3. Balance the state interest in uniformity or other interest v. a federal interest in maintaining the integrity of

its judicial system.
Note: This test has not been cited often by the Supr. Ct. and the countervailing interests test has rarely tipped the scales.


3. Twin Aims If clash is between federal practice (not a rule) and state practice/rule (unguided Erie), would adhering to the federal practice frustrate one or both of the twin aims of Erie?  Discourage forum shopping  Equitable administration of the laws
If either is frustrated→ can argue state law should prevail

4. Primary Conduct Does the state rule affect the primary conduct (non-lawsuit related behavior)?
If yes→ apply state law



Three areas to which the state law is well established. These are substantive for Erie purposes, meaning federal court applies state law. Here, federal judge in diversity case must apply state law: (1) statutes of limitations, (2) rules for tolling statutes of limitations, and (3) choice of law rules.   If there is a conflict between federal statute/codified rule and state ―law,‖ and the fed statute is constitutional (if FRCP it must also comport with REA), the federal court in a diversity case must use federal law (supremacy clause). However, to further twin aims of Erie, courts often construe the fed rule on point so it does not conflict o Narrow construction→ interpret rule so it does not conflict – to further the goals of Erie o Broad construction→ interpret rule so that it does conflict

Unguided Erie:if there is no codified rule or statute OR you have determined that there is but it does

NOT conflict then in unguided Erie you must consider all 4 Erie tests  Thus, even if you determine that the Federal Rule comports with RDA, is constitutional, and does not conflict with the state practice, you need to do the unguided part of the test to determine if you must apply the state law/practice.

RDA (28 USC §1652) v. REA (28 USC §2072) • Rules of Decision Act (28 USC 1652) The Laws of the several states, except where the Constitution or Acts of Congress otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the United States, in cases where they apply. • Rules Enabling Act (28 USC 2072) • (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including magistrates thereof) and courts of appeals • (b) Such Rules shall not abridge, enlarge, or modify any substantive right.



FRCP requires a complaint, one or more answers, and, if ordered by the court, a reply. All other requests to the court are made by a motion. Additional pleadings occur where additionl parties are joined to the suit. Historical Development The Writ system – england‘s old Pleadings common law system of pleadings 1. P starts lawsuit by filing a complaint setting forth P‘s allegations; If the court decided a case was

P provides notice to D.

2. D files an answer or a pre-answer motion. 3. In some cases, P files a reply. Modern Pleadings – Rule 8  Pleadings to provide notice and mechanism to test legal sufficiency of claim.  Eliminated disputes over what constituted a ―cause of action.‖  Party may recover where there is a valid claim, even though the attorney fails to perceive the proper basis.  Signing requirement: All docs submitted to the court must be signed by an attorney or the party.  Limited pleading role supported by: o liberal discovery provisions o sanctions for abuse pleadings o retooled provisions for summary judgment

FRCP 8(a) – Claims for relief A pleading (complaint) must contain: (1) a short, plain statement of the grounds for the court‘s jurisdiction (subject matter ju) (2) a short and plain statement of the claim, showing that the pleader is entitled to relief, (i.e. notice pleading) and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

appropriate, it would issue a writ to hear the case. Problems:  Very formalistic & rigid.  Complicated.  Inefficient, sometimes strange results.  No discovery. Could lose once you learn the facts at trial. Common Law Pleading  Rigid & strict technical rules  Cases easily dismissed w/o beingheard on the merits. Code Pleading (Fact Pleading)  Eliminated many technicalities, including (in many places) the distinction bn law and equity courts.  Still req‘d detailed factual pleading @ outset, making it difficult for many meritourious lawsuits to succeed. Federal Rules (notice pleading)  FRCP  Purpose is only to give notice of what claims & defenses are being raised.

Statement of claim need not be stated with great specificity or particularity. Federal Rules use ―notice pleading,‖ under which the pleading is sufficient if it puts the other side on notice.  FRCP 8(a)(2) – the claim must show some facts, that in combination with some conclusory language, might establish liability under some theory of law. 1. FRCP 9 Special pleadings. Three exceptions (must plead facts with specificity or particularity): (1) circumstances establishing fraud; (2) allegations of mistake; (3) special damages (damages not normally flowing from an event). Sample negligence complaint Ex:
• • • 1) ____(grounds for jurisdiction) 2) On date at place, the D carelessly and without looking where D was going drove a motor vehicle against the P. 3) As a result, P was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_____ • • •

what‘s missing?
1) ____(grounds for jurisdiction) 2) On date at place, the D drove a motor vehicle against the P. 3) As a result, P was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_____


Purpose of Pleadings  Permits quick disposal of complaints which suffer from serious defects.  Permits the quick disposal of alleged claims for which the law provides no redress (cost).  Shapes the discovery process: guides the courts/parties in the conduct of the case.  Puts parties on notice of claims and defenses.

Responses by Defendant: Under FRCP 12, a defending party may respond in one of two ways (by motion or by answer) no later than 20 days after service of process on the party. Seven Deadly Defenses:  Responses to Allegations: 7 defenses can be raised either in o admit the answer or by motion: o deny 1) lack of subj matter ju; o lack of sufficient info to admit or deny 2) lack of personal ju; 3) improper venue;  Raise 8(c)(1) affirmative defenses. (yes, BUT…) On a Rule 4) insufficient process;  Claims by D 12(b)(6) 5) insufficient service of process; o Cross-claim (against co-party), motion, the 6) failure to state a claim on o counter-claim (against opposing party), court must take which relief can be granted; o third party claim (interpleader) all well7) failure to join an indispensable  Default/Default judgment pleaded party.  Rule 12(b) defense motions: allegations as o E.g., lack of jurisdiction, improper venue, failure to state a claim. true; will only o 12(b)(6)- dismissal ―P‘s allegations do not make out a valid basis for granting relief‖ consider those allegations  Demurrer—―so what?‖ defense within the four  The old ―no set of facts‖ test: “A complaint should not be dismissed for failure to corners of the state a claim unless it appears beyond doubt that the plaintiff can prove no set of complaint. facts in support of his claims which would entitle him to relief” (Conley, CB 358) FRCP 12(b)(6) Failure to State a Claim. Asks whether the party has stated a claim not whether it actually HAS a claim. • A complaint can be defective in two ways: • Facts: a P may have left out allegations concerning one crucial element of a claim (See Twombly) • Law: P set out facts, but those facts don‘t allow P to recover under any legal theory (Haddle) • a court will NOT look past the language of the complaint and it will not judge whether the allegations are supported by evidence • Whether P has sufficiently stated a claim depends on the elements of the claim under the applicable law • It is pleader‘s responsibility to identify the law entitling relief, but if court finds some law that the pleader has not identified, it must still deny the motion to dismiss. Twombly Antitrust Case (alleged non-compete among telephone companies, giving each a monopoly in its region)  ―Parallel conduct‖ does not create liability, but conspiracy may be inferred.
o Need some ―plus‖ factor, i.e., behavior that would not likely be from a non-colluding entity but would be consistent with collusion

 

o Ex: you weren't at the breadmaker meeting, but you saw all 5 breadmakers go into the hotel together Twombly raised the bar for sufficient pleading from the possible (a stmt of claim that could entitle the pleader to relief on some legal theory) to the plausible (if still short of the probable). When both the ―guilty‖ (liability- creating) and the innocent explanations are possible, the plaintiffs must plead something ―more by way of factual content to ‗nudge‘ his claim ... across the line from conceivable to plausible.‖

12(b)(6) Twombly 3-part Test:  Identify the elements of the claim P wants to prove  Are the allegations well-pleaded? o Are the allegations supported by factual conclusions (can‘t be mere conclusory statements)  Must identify the real-world acts or events (or transaction occurrences) that took place.
o ―Mere conclusory allegations‖ are so generic (usually reciting an element of the prima facie case) that it could be cut and pasted without modification into any number of diverse fact patterns


Are the well-pleaded allegations plausible? o Only a complaint that states plausible claim for relief survives a motion to dismiss o Mere possibility is insufficient


  After Twombly and Iqbal, pleading allegations (not necessarily factal allegations) for each element is good practice. Change in Attitude • Before Twombly and Iqbal, Permissive • After Twombly and Iqbal, Caution

Timing: When defenses can be raised • Waivable: (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process: Must be raised in the first Rule 12 response (either motion or answer, whichever is first), or it is waived. • Not Waived: (6) failure to state a claim on which relief can be granted; (7) failure to join an indispensable party: Raised at any time through trial. • Unwaivable: (1) lack of subject matter jurisdiction: Can be raised at any time.

ETHICAL LIMITATIONS ON PLEADING AND MOTIONS • Rule 3.1 Meritorious Claims And Contentions • A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. • Rule 3.2 Expediting Litigation • A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. • Rule 3.3 Candor Toward The Tribunal • (a) A lawyer shall not knowingly: • (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; • (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or • (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer‘s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. • (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. • Rule 4.1 Truthfulness In Statements To Others • In the course of representing a client a lawyer shall not knowingly: • (a) make a false statement of material fact or law to a third person; or • (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. • Rule 8.4 Misconduct • It is professional misconduct for a lawyer to . . . . : • (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; • (d) engage in conduct that is prejudicial to the administration of justice; • (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law . . .


• • Canon 7 of the Model Code of Professional Responsibility “A lawyer should represent a client zealously within the bounds of the law.” Rule 1.1 Competence • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 11 • (a) Signature required. Signature by attorney or party required for every doc submitted to the court. • (b) Representations to Court. By presenting to the court a pleading, written motion, or other paper – whether by signing, filing, submitting, or later advocating it – an attorney or unrepresented party certifies to the best of the person‘s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: …. • (c) Sanctions. • (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. . . . . • (4) Sanctions must be ―limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.‖ • (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, objections, and motions under Rule 26 through 37.




Discovery is the formalized process by which parties to a lawsuit obtain information from each other and from third parties. Two main categories: • Mandatory disclosures • Requests for information Standard of discovery. A party may discover any information that is relevant to the claim or defense of any party and not privileged. STAGES OF DISCOVERY 1) MANDATORY Disclosure -R.26(a) MUST disclose without being asked! Enforced by 37(c)(1) • Initial disclosure 26(a)(1) – exchange categories of info that ―the disclosing party may use to support its claims or defense‖ • names and locations of W, descriptions and locations of documents as well as calculations of damages and insurance agreements • Expert Witnesses and Testimony 26(a)(2) • Pretrial Disclosures -- List of witnesses and documents/exhibits for trial 26(a)(3) 2) Interrogatories & Admissions (33, 36, 37) • Interrogatories (R.33) • Elicit fairly routine specific information e.g. ID person and docs and digital info in possession of other side that were not listed in required disclosures b/c they don‘t ―support‖ adversary‘s claim or defense • Inexpensive • Limited to 25 questions (or permission of court or parties for more) Three Limitations on • Can only be sent to a party (not non-party W) Discovery: • Requests for Admissions (R36) • Privilege • Makes evidence irrelevant by taking an issue out of controversy • Work Product • Like Interrogatories, • Privacy • Useable only against parties • In writing • Relatively cheap • Limited usefulness • Enforced by 37(c)2. • Designed to reduce trial time and narrow issues 3) Documents, Things, Land, and Bytes Request for Production (R 34 and 35) • Covers any tangible item including docs, emails, electronically stored info, land, medical records, accounting records, contracts, memos about contracts, notes, and prior versions (meta data) • For party send a R34 request specifying ―If there is a hell to which disputatious, • For non-party in a subpoena under R45(a)(10(A)(iii) uncivil, vituperative lawyers go, let it be one • Only AFTER disclosures under R. 26(a0) in which the damned are eternally locked in • No limit to # of docs discovery disputes with other lawyers of equally repugnant attributes.”* 4)Depositions; Asking questions in person (R.27-32) • Expensive but critical *Kreuger v. Pelican Prod. Corp.,, quoted in Mancia v. • Opp to explore and ask questions without knowing answer Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 n.3 (D. • Can force a W to take a position Md. 2008) (Grimm, Mag. J.). • Lawyer can follow up with further questions if W is evasive • TTL by one side may not exceed 10, no dep may exceed a day of 7 hrs and no person deposed a second time without permission of court or other side. R 30(a)(2)(A)(i).


• Rule 37- Failure to Make Disclosures or to Cooperate in Discovery; Sanctions • Series of devices to elicit info • Court may impose punishments: awards of expenses, dismissals, entry of default judgment • Sanctions generally AFTER court orders party to comply and then party fails to comply Rule 26 – Duty to Disclose; General Provisions Governing Discovery • Signature (like R.11); Suggests that attorney‘s fees are appropriate sanction for most violations • Improper purpose such as to harass or cause unnecessary delay or cost • Rule 26(c) - Protective orders Rule 30 (c) (2);(d)(2); d(3) – objections to party‘s conduct and sanction for impeding, delaying or frustrating fair exam of deponent



Canon 7 of the Model Code of Prof Responsibility: ―A lawyer should represent a client zealously within the bounds of the law.‖ Commentary to Model Rule 1.3: • ―A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.‖ Model Rule 8.4: • Professional misconduct for a lawyer to . . . • (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; • (d) engage in conduct that is prejudicial to the administration of justice; • (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law . . . Other commentary to MR1.3: • ―[a] lawyer is not bound ... to press for every advantage that might be realized for a client .... The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.‖

Three Limitations on Discovery: • Privilege • Work Product • Privacy

What about Money? Discovery in some ways seems to involve ―Mo Money‖ – Does it also then create ―Mo Problems‖ Mo' Money Mo' Problems

Is it relevant to any party‘s claim or defense? (having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence‖) (FRE 401) • No → Is it nevertheless discoverable under 26(a)? • Yes → it may be discoverable • Is it relevant to the ―subject matter‖? • Yes→ it may be discoverable with court order • If yes, is it privileged or protected? • Privilege, work product, privacy • Yes→ is it disproportionally burdensome?


ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE • Attorney-Client Privilege • Purpose: to protect free flow of information between attorney and client so that attorney can help lead client to compliance • What is protected: confidential communications btwn attorney and client when for purpose of legal advice/services. • Only protects the attorney‘s legal advice or communications based on or that might reveal confidential client information • Difference from Work Product: Can‘t be ―pierced‖ on showing of need • Work Product Doctrine (FRCP 26 (b)(3)) (Hickman-tugboat) • Purpose: based on the idea that every attorney should be free to investigate all aspects of a case, whether favorable or unfavorable to the attorney‘s client (incentive to investigate, rather than wait for opposing counsel to do the work). Developed to account for the realities of modern practice and the importance of third-party consultation • What is Protected: notes, working papers, memoranda, or similar materials, prepared by an attorney/rep. in preparation of litigation (tangible and intangible equiv.) • Difference from Privilege: Privileged info. is immune no matter how compelling the need for discovery. Work product protection is pierce-able in the face of compelling needs.

Work Product - Three Part Test 1. Is the material work product? • The materials must be ―documents or tangible things‖ or their ―intangible equivalent‖ (FED. R. EVID. 502(g)(2) ) • The materials must be ―prepared in anticipation of litigation or trial.‖ 1. BUT - Narrow view of what it means to be in anticipation of trial 2. BUT Business Purpose Exception: When documents are prepared in anticipation of litigation for both litigation & business purposes, may not be protected • The materials must be prepared ―by or for another party or its representative.‖ 2. Does a substantial need exist for info. with no alternative? • ―Substantial need‖ exists for the preparation of the party‘s case. • No alternative: shows that the party seeking the discovery cannot obtain equivalent info. elsewhere. 3. Would the materials reveal the mental impressions, conclusions, opinions or legal theories of counsel? [Note: common law and Rule 26] • Even if a substantial need and no alternative, does not need to be produced if it would ―reveal the mental impressions, conclusions etc.‖ of attorney or representative of a party concerning litigation. Nonparty Exception - Rule 26(b)(3)(C) • Rule: Any nonparty witness may obtain a copy of his/her prior statement given to a party or attorney – even if work product. • Reason: avoids embarrassment at trial by being confronted with inconsistent statements. • Universal?: No. Not all states agree with this exception to the Work Product Doctrine. The exception is problematic because it can be subject to abuse and unfairness.



ADR – ALTERNATIVE DISPUTE RESOLUTION • ―Any process or procedure other than adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in controversy‖ 28 USC § 651 • Mediation • Settlement conference • Arbitration Summary Judgment - Celotex: • Neutral Evaluation • D can win SJ by showing (with • Non-binding arbitration supporting evidence) that the P • Summary jury trial lacks sufficient evidence to PRE-TRIAL ADJUDICATION • Voluntary Dismissals (FRCP41(a)), • Involuntary Dismissals (FRCP 41(b)), • Default (FRCP 41(b), 55, and 60(b) • Summary Judgment (FRCP 56)
support an element of P‘s claim (that P would have to prove at trial in order to prevail) i.e. that P‘s evidence is so utterly lacking that no reasonable jury could find for the P on that element


Court decides case before trial based on a determination as a matter of law that only one side could reasonably prevail • FRCP 56 - The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled judgment as a matter of law • i.e. No reasonable jury could find for the nonmoving party BURDEN OF PROOF • Burden of pleading • If neither party introduces the issue in pleadings, party with the burden may not offer the evidence at trial • Burden of Production • party w/ the burden must offer enough evidence that a reasonable jury could find for that party • Burden of Persuasion • Standard the jury considers when deciding– in a normal civil case it is ―a preponderance of the evidence‖ standard • P‘s Burden • For a P to win a SJ motion – P must be able to establish every element of the claim and show that if the case were to go to trial, no reasonable jury could find for the D • This is b/c a P has the burden of production at trial to produce enough evidence so that a reasonable jury could find in the P‘s favor • D‘s Burden: • For D to win summary judgment, the D must show that the P does not have sufficient evidence to raise a genuine issue as to any element of P‘s claim – i.e. the D need only show P‘s failure as to a single element of the claim. • D has to show (with supporting evidence) that P‘s evidence is so utterly lacking that no reasonable jury could find for the P on that element • Non-Moving Party‘s Burden: • Once the moving party has carried its burden, the responsibility shifts to the nonmoving party to show that there is, in fact a genuine issue of material fact.‖ • Must come forward with specific facts showing that there is a genuine issue for trial • In evaluation, the court must draw all justifiable inferences in favor of the nonmovant • Parties must offer evidence in support of motion for SJ – like affidavits, deposition testimony, documents • But R56(e) does not require that affidavits be admissible at trial. •


• • A D may move for SJ at any time. A P, by contrast must wait for twenty days after service. Rule 56(f) allows the court to delay its decision on the motion until both sides have had a chance to conduct discovery

Judicial Involvement in ADR and Management of Litigation • Judicial Involvement in ADR • Rule 16 • Alternative Dispute Resolution Act of 1998, 28 USC § 651 (b) • Inherent Power • Judicial Management of Litigation • Pre-trial conference • Sanctions Fundamental Differences: American system v. German System • Court (rather than parties) has main responsibility for gathering and sifting evidence (e.g. interrogating witnesses, selecting experts etc) • No distinction btwn pretrial and trial (btwn discovering and presenting evidence) • No theatrics. Tone is business and court promotes compromise • Loser pay system of allocating the costs of litigation (i.e. further incentive to settle short of judgment) SEVENTH AMENDMENT RIGHT TO JURY TRIAL – FRCP 38 Four Requirements: 1) History, Analogy, Pragmatic, Statute • - Assert a claim that would have triggered right to a jury trial under English CL in 1791 (when 7th was ratified) or historical analog. If neither work, pragmatic approach) 2) Federal Court (does not apply in state court even when a litigant is enforcing a right created by federal law) 3) Over $20 (oh, boy!) 4) ―essentially‖ legal vs equitable in nature • If you want it, you have to ―demand‖ it FRCP 38 Common Law/Jury Trial: • money damages EXCEPT • ejectment (P sues to eject D from property) • replevin (P seeks an order restoring ring to his possession) • Habeas Corpus • mandamus-prohibition-certiorari trio Equity/No Jury Trial • Injunctive relief but do have claim up power to add on incidental damages JUDGMENT AS A MATTER OF LAW • 12(b)(6) - Motion to Dismiss • Summary Judgment (FRCP 56) • Directed Verdict/JML (FRCP 50a) • Renewed motion for JML/Judgment Notwithstanding the Verdict (J.N.O.V.) (FRCP 50b) • New Trial (FRCP 59) • A judge may never make a credibility determination in granting a judgment as matter of law – that is a matter for the jury. Nor may a judge ―weigh‖ the evidence.

Grant motion for Directed Verdict or JNOV when: • After considering all the evidence and in light most favorable to non-mover


• • The facts and inferences so overwhelmingly favor one party and the Court believes that reasonable men could not arrive at a contrary verdict i.e. no legally sufficient evidentiary basis for a rational jury to find for that party on that issue

Do NOT grant when: • There is substantial evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions • BUT A mere scintilla of evidence is insufficient to present a question for the jury. . . . There must be a conflict in substantial evidence to create a jury question

New Trial:
Reasons: • Flawed Procedure: • (but needs to be more than harmless error and party usually has to object at trial) • Miscarriage of Justice/Seriously Erroneous • Verdict against the weight of the evidence • In Fed Court, judge can‘t play role of 13th Juror • Order for NT not appeal-able • Denial of NT is appeal-able • Judge can order NT on own motion • Can grant partial new trial or remittitur

JML/DV/JNOV vs. New Trial
• • JML/DV/JNOV = no reasonable jury could have reached the result the jury reached (direct assault on jury rationality) New Trial = judge disagrees strongly with the jury but cannot say that ―no‖ reasonable jury could have gone there i.e. judge may feel the jury verdict is a miscarriage of justice



Jury Trial and Trial Motions 1. Jury Trial a. Process: Juries determine the facts. The Court (judge) instructs the jury on the law. b. Demand requirement: Must demand jury trial in writing no later than 10 days after service of the last pleading raising a jury-triable issue. May demand in a pleading or a separate document. i. Right to jury trial in federal court: Seventh Amendment preserves it in actions at law, but not in suits at equity. What if a case involves both law and equity? Jury determine factual issues underlying the law claims, but not the equity claims. 1. Example: So suppose a case involves a claim for damages (legal relief) and a claim for an injunction (equitable relief). What should the federal trial court do? Jury would determine the facts underlying the damages claim. The Court would determine the equitable claim and any equitable remedies. 2. Does the Seventh Amendment apply in state courts? No. States determine when jury is permitted in civil cases. ii. Order: generally, try the jury issues first. c. Jury Selection: In selecting the jury (the voir dire process), each side has unlimited strikes of potential jurors for cause (e.g., bias, related to a litigant). Each side also has three peremptory strikes. What limits are there on using peremptory strikes? Must be used in a race and gender neutral way. Cannot strike for Race and Gender. (Selection of Jury is State Action). 2. Motion for Judgment as a Matter of Law (a.k.a. directed verdict). This is an exceptional order, the effect of which is to take the case away from the jury. Motion made at trial. a. When brought? When the other side has been heard. i. Defendant: move at close of plaintiff‘s evidence and again at the close of all evidence. 1. Note: D must move at close of all evidence (and not simply at close of plaintiff‘s evidence) if he wants to preserve claim to a Renewed Motion for Judgment as a Matter of Law (see below). ii. Plaintiff can only move at the close of all evidence (i.e. after defendant has been heard). 1. Note: P must move at close of all evidence (the only time he can move) if he wants to preserve claim to a Renewed Motion for Judgment as a Matter of Law (see below). b. Standard for granting the motion: Reasonable people could not disagree on the result. i. In ruling on the motion, the court generally will view the evidence in the light most favorable to the nonmoving party. c. Procedure: If granted, the jury does not make a judgment. The Judge makes the judgment. Judgments and Post-Trial Motions 1. Renewed Motion for Judgment as a Matter of Law (a.k.a. Judgment Notwithstanding the Verdict) a. Situation: jury returns verdict for one party, and the court enters judgment on the basis of that verdict. Now, after trial, losing party files renewed motion for judgment as a matter of law; if granted, it results in entry of judgment for him. b. Prerequisite: Motion for Judgment as a Matter of Law AT THE CLOSE OF ALL EVIDENCE is a prerequisite! If the party seeking the renewed motion did not move for judgment as a matter of law at the close of all evidence that party cannot make the renewed motion. c. Timing: Must move not later than 10 days after entry of the judgment. d. Standard: Reasonable people could not disagree on the result. Generally, the court will view the evidence in the light most favorable to the nonmoving party. i. IF THIS IS GRANTED, THE JURY REACHED A CONCLUSION REASONABLE PEOPLE COULD NOT HAVE REACHED. 2. Motion for New Trial


a. Situation: judgment entered, but the judge concludes that errors at trial require a new trial. b. Timing: Must move not later than 10 days after entry of the judgment. c. Examples of grounds: i. prejudicial error (not harmless) at trial makes judgment unfair (e.g., wrong jury instruction, erroneous evidentiary ruling); ii. new evidence that could not have been discovered in time for trial; iii. prejudicial misconduct of party or juror (eg. juror independently investigated accident); iv. judgment is against the weight of the evidence, showing jury‘s serious error. d. Comparison of new trial to renewed motion for judgment as a matter of law: Granting new trial is less radical, since it results in starting over.



Split Opinion:
• • • • • • Part I: Unanimous (opinion of Court)– background facts Part IIA: Only 4 Votes (not opinion of Court)– stream of commerce by itself is not enough to establish min contacts. Part IIB: 8 Votes (opinion of Court) – traditional notions of fair play and substantial justice not met (FP&SJ). Part III: 4 Votes (not opinion of Court) – no PJ because no min contacts & not consistent with notions of FP&SJ Concurring opinion (Brennan): 4 Votes (not opinion of Court) – Stream of Commerce is enough to establish minimum contacts BUT here (the rare occurrence) that not consistent with FP&SJ Concurring opinion (Stevens): 3 Votes (not opinion of Court) – No need to formulate minimum contacts test, as all are agreed on second element. And even if we adopt the O‘Connor‘s minimum contacts test, it was applied incorrectly here.

THREE STREAM OF COMMERCE TESTS • O‘Connor – Stream of Commerce ―Plus‖ • there must be some activity directed at the state, such as advertising or sending of replacement parts, before a contact exists. • Brennan – Pure Stream of Commerce • when a defendant‘s components are incorporated into a final product, the defendant has a contact with any forum where the defendant knows (or reas should know?) that the final product is sold. • Stevens – Middle Ground? • should consider volume, value of sales, hazardousness of the product in assessing whether PJ is appropriate.

1) Check long arm 2) Minimum Contacts and c/a arises out of contacts: ***Consider the four ways to est min contacts 3) If yes, move to FP&SJ 1) If solid yes, would it be really unfair? (Asahi – RARE) – deny ju 2) If weak yes, ask would it still be fair? (e.g. BK) – accept ju In both 3 and 4, perhaps look at the Context of the case: • International parties?, bargaining power/Savvy/businessmen D‘s, Commercial case?, internet?, D‘s that are solvent/bigger pockets


• I. Where Can You Sue & What Law Applies – PJ Long Arm statute: Is it narrower, broader, or coterminous with constitution (usually the latter) – PJ Federal Court Const Analysis • Specific JU or General JU • Specific: Shoe Test (min contacts and FPSJ) (suit needs to be related to contact with forum) • General: systematic and continuous (suit does NOT need to be related to contact with forum) • Notice (constitutional & statutory e.g. service) • Opp to be heard – Venue – is venue proper (1391)? • If improper transfer or dismiss 1406 (that rhymes) • If proper transfer 1404 or dismiss FNC (4nonconv) – Venue, FNC, long arm statutes – Subject Matter Jurisdiction – Choice of law (Erie) II. How Do You Sue & What is the litigation Process – Pleadings – Discovery – Resolution without trial – Trial



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