Sample Legal Forms and Pleadings in the Philippines - DOC by shw84471

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									Civil Procedure Outline                    Professor Redish—Fall 2001
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  INTRODUCTION

        A. Criminal law v. civil law
                1. crim law: state, deterrence, punishment
                2. civil law: private, requiring compensation, private remedy

        B. Federalism
                1. Federalism: multi-layers of sovereign power—system of
                    intersecting sovereignties

                2. Subordinate sovereigns: seems like oxymoron, but federalism
                   allows in role of states

                3. Two types of federalism:
                    a. Dual federalism: Two parallel lines of authority never
                        crossing (layer cake)
                    b. Cooperative/dual federalism: Wild crossing, two lines of
                        power that work together (marble cake).

                4. American courts represent cooperative/dual federalism
                    a. Federal courts cannot decide issues of state law and vice-
                       versa.
                    b. Constitution as counter-majoritarian document. Federal
                       judges given powers over other branches and independence
                       not seen in state courts.
                           (1) Protections of integrity
                           (2) Floor of competence with presidential appointment
                               and Senate approval
                           (3) System allegiance (broader perspective than state
                               judges)

                5. Diversity jurisdiction: citizens from two different states suing
                   each other. Can be done in federal court to preserve interests of
                   both states. Courts follow state law where suit is brought.




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I.     PLEADING

A. THREE PARTS OF PLEADING
   1) Complaint
   2) Answer
   3) Reply (sometimes allowed)

B. RULE 8(A) AND (B) AND RULE 12(B)
   1) Rule 8(a): Claims for Relief
      a) Short and plain statement of grounds upon which court‟s jurisdiction depends,
         unless court already has jurisdiction.
      b) “A short and plain statement of the claim showing that the pleader is entitled
         to relief.”
      c) Relief that the pleader seeks.
   2) Rule 8(b): Defenses: Form of Denials
      a) Short and plain statement of defenses to each claim asserted
      b) Admit or deny averments upon which adverse party relies.
      c) Lack of knowledge should be stated if true, which has effect of denial.
      d) Specific denials of particular averments or general denial.
   3) Rule 12(b)6: “Failure to state a claim upon which relief may be granted.”
      a) Respondent motion with two functions:
         i)       Procedural vehicle to detect legal validity, assuming the truth of the
                  allegation.
         ii)      Throwing out the complaint for the reason that even if there is enough
                  factual detail, it doesn‟t say enough to constitute a claim for relief.

C. FACT PLEADING VERSUS NOTICE PLEADING
      1) Federal Rules enacted in 1938 create controversy in standard of pleading.
          Traditional, code pleading or fact pleading approach is replaced by a less
          stringent notice pleading system. While notice pleading is generally
          predominant, exceptions and different interpretations moving toward fact
          pleading exist.
      2) Cases demonstrating the fact versus notice distinction:
          a) Gillipsie v. Goodyear Service Stores (N.C. Sup. Ct. 1963): Woman alleges
              trespass, assault, public scorn and ridicule, seized and exhibited as
              prisoner and confined in public jail. Court dismisses on basis that not
              pleaded with particularity. Plaintiff advised to replead with factual basis.
          b) Rabbi Klein: Rabbi lost money in stock market and files claim for fraud.
              What happens to Klein, loss of money in stock market is a normal
              occurrence, not “fishy.” As a result, it is dismissed, on basis in cannot
              mean higher standard than notice pleading, mandated for fraud action in
              Rule 9(b).
          c) Conley v. Gibson (U.S. Sup. Ct. 1957): African-American union members
              accused union of racial discrimination conspiracy related to release of
              workers. No specific, direct factual allegations are included but it is

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               alleged that union gave no assistance to pleas to address the abolishment
               of 45 jobs held by blacks. Court uses notice pleading standard to allow
               this “fishy” sounding case to move to discovery.
            d) Dioguardi v. Durning: (2d Cir. 1944): Italian immigrant filing home-
               drawn complaint. Court rules the “even if inarticulate,” motion to dismiss
               as 12(b)6 is denied. Eventually dismissed on summary judgment.
        3) Redish‟s argument: Rule 8(a) should draw distinction between cases such as
        Rabbi Klein and Conley, between those who should be expected to know
        something without discovery (Rabbi Klein) and those who can‟t (Conley).
        4) Continuum:

FACT PLEADING                                                        NOTICE PLEADING
HIGHER STANDARD                                                      LOWER STANDARD
______________________________________________________________________
Rabbi Klein           Gillipsie              Dioguardi               Conley
Fraud case demands    Decided with fact      Notice pleading         Notice pleading allows
higher standard       pleading, could go     protects inarticulate   “fishy” complaints to get
Rule 9(b)             either way             complaints              to discovery

D. RULE 12(E): MOTION FOR MORE DEFINITE STATEMENT
   1) Motion for more definite statement: If a pleading is so vague and ambiguous a
      statement that party cannot reasonably be required to frame responsive pleading,
      party make be able to move for more definite statement before responding. If
      motion is granted and not obeyed in 10 days, court may strike pleading to which
      motion was directed.
   2) United States v. Board of Harbor Commissioners (D. Del. 1977): that enough
      specificity is included in complaint that gives defendants notice of what they are
      accused, but reserves finding of specific facts to discovery. Court argues that this
      Rule 12(e) motion is only attempt to flesh out more detail when not needed.
   3) Policy for 12(e): To assist in cases that suffer from unintelligibility, such as when
      date of event occurred in order to determine if statute of limitations had run out.
   4) Strategic use of 12(e): Try to get 12(e) motion passed in order to build up to a
      12(b)6. Courts rarely allow this strategy which would allow movant to get case
      dismissed if:
      a) nonmovant does not reply in time specified or
      b) nonmovant replies with details that may exonerate movant and allow a 12(b)6
          motion.
   5) Reality of 12(e): Rarely used and considered anachronism by many.

E. RULE 8 (E): INCONSISTENT ALLEGATIONS
     1) Inconsistent Allegations: Party may set forth two or more statements of a
        claim or defense alternately or hypothetically, either in one count or defense
        or in separate counts or defenses. This is subject to Rule 11.
     2) McCormick v. Kopmann (App. Ct., Ill., 1959): A party making a claim on
        behalf of fatality of an automobile accident can make inconsistent allegations
        regarding negligence of other driver and of tavern owners when the party was
        not present at the alleged crime and need the process of discovery to occur.


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        3) Policy: When don‟t know truth is, sue together to maximize chances to win.
           Ex: If McCormick sues Kopmann first and loses, the Huls (tavern owners),
           who are entitled to their day in court through due process, may have a better
           chance of winning. McCormick could not win against both, however, but by
           pleading together has a better chance of winning against one of them.

F. 1983 AMENDMENT TO RULE 11: SIGNING OF PLEADINGS, MOTIONS
   AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS.
      1) What‟s new in 1983 Rule 11?:
         a) Reasonable inquiry.
         b) Well-grounded in fact vs. pre-1983 “good grounds to support.”
         c) Not just pleadings, but any papers filed in court are bound by the Rule.
         d) Mandatory sanctions: act of sanctioning mandatory on court, although
            discretion allowed in the type of sanctions.

        2) Continuum:

Pre-83 Rule 11 goes after first two, but 83 extends to “bigger fish,”
________________________________________________________________________
Lying through teeth       Frivolous                 Reasonable suspicion      //////////// Well grounded
trying to close the “open sesame” door to discovery for cases of reasonable suspicion.
This creates tension with Rule 8, notice pleading.

        3) Satellite Litigation: 1983 Amendment was supposed to decrease burdens on
           court, but does opposite, increasing Rule 11 motions and satellite litigation.
           Ex: Defendant files a 12(b)6, plaintiff files a Rule 11 on a 12(b)6, defendant
           files a Rule 11 on the Rule 11.

        4) Judicial Administration: 1983 Amendment is seen as way for defense
           attorneys to shut down plaintiffs trying to get to settlement, but instead it
           chills them and prevents them from making claims in the first place, creating a
           chilling effect:

X--------------------------------------Y-------------------------------------------------------------Z
You‟re at point X.        Only go to Y.             b/c you       Don‟t know if you can get to Z

        5) Redish‟s problems with 1983 Amendment:
           a) Would not allow Conley
           b) Timing vis-à-vis 1980 Amendment instituting Rule 26(f) discovery
              conference which should deal with some of these issues.
           c) Procedural element of deception, resulting in chaos.

G. 1993 AMENDMENT TO RULE 11: SIGNING OF PLEADINGS, MOTIONS
AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS.
      1) Rule 11 Summary: Pleadings, written motions and other papers to the court
      must be signed, certifying that they are not being presented for improper purpose,
      not frivolous, have evidentiary support or are likely to after discovery, and denials

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       or factual contentions are warranted on evidence or based on lack or information
       or belief. Otherwise, party liable for sanctions by motion or court‟s initiative.
       Note that Rule 11 does not apply to disclosures and discovery requests, responses,
       objections, and motions that are subject to the provisions of Rules 26 through 37.
       (Rule 11(d)).
       2) What‟s new in 1993 Rule 11?:
           a) Safe harbor:
               i)      Opportunity to withdraw complaint 21 days after motion is served.
               ii)     Scalia and others say it lets people off easy since before there was
                       no opportunity to pull out.
               iii)    On the other hand, some may be willing to take chance and wait
                       for judge‟s decision.
               iv)     Safe harbor does not apply if court initiates sanctions.
           b) Discretionary sanctions:
               i)      Moves back from being mandatory.
               ii)     Usually court will get sanctions and not movant.
               iii)    Not necessarily financial sanctions.
           c) Move back to notice pleading. For first time Rule 11 is connected with
               discovery (Rule 11(b)3).
       3) Albright v. Upjohn Co.
           a) Summary: Albright trying to prove she was using Upjohn‟s medication,
               but has no way of knowing. Based on 1983 Rule 11, court decides that
               claims by plaintiff against Upjohn cannot stand because they were not
               “well grounded in fact” but court also presages 1993 Amendment by
               saying that there was little likelihood that additional medical records
               would have been found in discovery stage.
           b) How would Albright would have been different with 1993 Amendment?:
               i)      If facts were same she would be home free because she had already
                       withdrawn her motion at time of Rule 11 motion in 1983.
               ii)     If timing were different, Albright would have the safe harbor
                       period to withdraw her motion under 1993 Amendment.
               iii)    If it was likely Albright could find medical records in discovery,
                       1993 Amendment would not allow a successful Rule 11 motion. If
                       not, decision would be the same.
       4) Where dust settles, where are we by 1993?
           a) Forces of fact pleading in retreat.
           b) Notice pleading in good shape, but be careful what that means. When are
               enough facts to put other side on notice? Form 9 provides a standard.
               Gillipsie, with notice pleading, probably would go on, but could go any
               number of ways.

H. RULE 9(B): PLEADING SPECIAL MATTERS: FRAUD, MISTAKE,
   CONDITION OF THE MIND
     1) Rule 9(b): In all averments of fraud or mistake, the circumstances constituting
        fraud or mistake shall be stated with particularity. Malice, intent, knowledge,



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          and other condition of mind of a person may be averred generally. (This is an
          exception to the exception, relating to element one below).
       2) Fraud and Rule 9(b)
          a) Procedural Issues
             i)      Rule 9(b) becomes an exception to Rule 8. Rule 9(b) means that
                     fact pleading standing is being stuck with in cases of fraud.
             ii)     Use a 12(b)6 motion as vehicle to raise a Rule 9(b) argument.
             iii)    Rule 11 still applies to everything.
          b) Four elements of fraud:
             i)      Intentional misrepresentation of a
             ii)     Material fact that somebody
             iii)    Reasonably relies on to their
             iv)     Detriment
          c) Why exception for fraud?
             i)      Allegation of fraud so heinous that mere allegations will cause
                     damage.
             ii)     Prevention of erroneous claims.
             iii)    Fraud claims may stop investment in securities.
             iv)     Not entirely sure. Based on rough empirical judgment that fraud is
                     used most often for groundless claims.
       3) Ross v. A.H. Robins (U.S. Ct. App., 2nd Cir., 1979)
          a) Summary: Class action suit against Robins for fraud regarding pregnancy
             product (Dalkon Shield). Plaintiffs demonstrate that contradictory
             information to that supplied by Robins existed, but they don‟t fix time
             when stocks dropped relative to the information, don‟t fix time when
             defendants knew of contradictory information and didn‟t say if defendants
             were aware of the report. Thus, court decides that plea should be
             dismissed because it is not with particularity, but what about second
             sentence in Rule 9(b) saying knowledge may be pleaded generally?
          b) Distinction with Rabbi Klein: Ross avers knowledge generally by showing
             that conflicting report existed. Rabbi Klein doesn‟t aver knowledge at all.
             People lose money on the stock market every day, he doesn‟t show why
             different. Although not show all “facts,” at least need to demonstrate
             “circumstances.”
          c) Why have exception for knowledge?:
             i) By its nature fraud is a secretive process.
             ii) Need discovery.
             iii) May turn on jury‟s perception of credibility of witness.

I. THE SPECIFICITY DEBATE: EXTENDING 9(B) BEYOND FRAUD
   1) Cash Energy v. Weiner (U.S. Dis. Ct., Dist. of Mass., 1991)
      a) Summary: Question of whether higher standards of pleading extend to a case
         where individual defendants are charged simply with knowledge of their
         corporations‟ environmental contamination. Does due process require
         heightened particularity for drastic nature of penalties?
      b) Judge Keeton‟s decision extends Rule 9(b) from fraud to other areas, arguing:


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           i)    9(b) already exists and has been extended to civil rights, RICO and
                 other types of cases.
         ii)     Rule 8(f) gives judges discretion in quest for “substantial justice.”
         iii)    Rule 12(e) Motion for More Definite Statement is underutilized.
         iv)     Judicial administration problems demand such a solution.
      c) Redish‟s arguments against Keeton
         i)      Rule 9(b) only sets out one exception, which is fraud. What is not
                 named is not covered.
         ii)     Rule 8(f) is to prevent dismissing a justifiable claim on a technicality.
                 “Pleading is not a game of skill.” 8(f) is used by Keeton to use rules
                 for substantial justice, but its purpose is for substantial justice in
                 pleadings.
         iii)    Rule 12(e) is for cases of ambiguity and is an anachronism.
   2) Leatherman v. Tarrant County (Sup. Ct. 1993).
      a) Summary: §1983 claim against municipality regarding the actions of its law
         enforcement officers in executing search warrants. Municipalities are free
         from respondeat superior liability (when one of its officers commits an illegal
         action) but is not immune from suits where the municipality is responsible.
         Here, question of how much detail is required in a pleading against
         municipality. All that is stated is illegal actions of officers, but not why
         municipality is responsible.
      b) Rehnquist‟s interpretation and aftermath:
         i)      Rehnquist‟s opinion: Expressio unius est exclusio alterius—There is
                 only one exception, which is for fraud. Heightened pleading standard
                 is not required here.
         ii)     Half courts say Leatherman decides fact pleading should not occur
                 only in civil rights cases against municipality. Others, like Redish,
                 read the decision broadly, applying it to all cases except fraud.

J. RULE 12(C): MOTION FOR JUDGMENT ON THE PLEADINGS
   1) Rule 12(c): After the pleadings are closed but within such time as not to delay the
      trial, any party may move for judgment on the pleadings. Thus, a litigant neutral
      measure as opposed to defense‟s 12(b)6.
   2) Plaintiff‟s perspective: Plaintiff will use 12(c) more often that defendant often to
      challenge validity of defendant‟s answer. Example of policeman‟s affirmative
      defense that doesn‟t hold weight.
   3) Defendant‟s perspective: Defendant uses 12(b)6 more often than 12(c). Often
      will file 12(b)6, even admitting what would have been in answer in order to prove
      claim and get it dismissed before filing an answer. Example of conscious
      parallelism of gas stations which admit setting similar prices, but saying there is
      no claim to support it as an antitrust action.

K. DEFENDANT’S RESPONSE
   1) Pre-answer motions under Rule 12 affect time periods for filing responsive
   pleadings:



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         Defendant files pre-answer motion within 20-day period following service of
          summons and complaint, deadline for filing answer is extended (Rule 12(a)1).
       If court denies the motion or postpones its disposition, defendant has until 10
          days after notice of court’s action to file an answer.
       If court grants the motion, in most cases suit will be dismissed.
       If motion for more definite statement is granted, defendant has until 10 days
          after service of an amended complaint with more definite statement to file an
          answer.
  2) Pre-answer Motions under Rule 12
      a) Seven defenses of Rule 12(b) are all, except failure to state a claim (12(b)6),
      objections of a procedural nature:
       Court is not empowered to exercise jurisdiction over subject matter of suit
          (12(b)1)
         Subject matter jurisdiction over particular type of substantive case, i.e. can’t bring state
         antitrust case in traffic court. Restrictions over what court can/cannot hear. Federal courts
         in Article III, Section 2 of Constitution, have list of type of cases federal courts can hear,
         which can be broken into two: 1) federal subject matter jurisdiction and 2) diversity
         jurisdiction.
        Court lacks proper jurisdiction over the defendant (12(b)2)
         Talks about geographical reach of court. Pertinent in cases where state courts attempt to
         assert jurisdiction over people from other states.
        This particular court is not the proper venue for the suit (12(b)3)
         District in which case is brought. Special federal statutes to explain which. Some overlap
         with 12(b)2.
        The circumstances or method for serving process were incorrect (12(b)4&5)
         !2(b)4: Served right, but defect in document; 12(b)5: Document fine, but service wrong, ex:
         mail instead of delivery.
        Suit shouldn‟t go on without a necessary party (12(b)7)
         Defendant may say another party should be brought in which may relate to jurisdiction and
         destroy case.
        12(b)6 different in that it challenges the legal sufficiency of the allegations in
         the complaint.
      b) 12(e) motion for more definite statement.
      c) 12(f) motion: To strike “redundant, immaterial, impertinent, or scandalous
         matter” or “any insufficient defense.”
  3) Rules 12(g) and (h) set out consolidation and waiver provisions concerning Rule
  12 motions:
      a) Rule 12(g) provides that if party makes a pre-answer motion, but omits one of
         the Rule 12 defenses then available, it cannot make any further pre-answer
         motions.
      b) Rule 12(h)1 provides that four disfavored defenses:
          Lack of jurisdiction over the person 12(b)2
          Improper venue 12(b)3
          Insufficiency of process 12(b)4
          Insufficiency of service of process 12(b)5
             Will be waived forever if omitted from a pre-answer motion or, if no
             motion is made, if omitted from the answer.
      c) Rule 12(h)2 provides that three favored defenses:

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               Failure to state a claim upon which relief may be granted 12(b)6
               Failure to join an indispensable party 12(b)7
               Failure to state a legal defense to a claim
                Can be made in any pleading, or by motion for judgment on the pleadings,
                or at trial on the merits.
       d) Rule 12(h)3 states that the most favored defense—lack of jurisdiction of the
           subject matter 12(b)1—may be made at any time.
   4) Why have these rules?
       a) 12(g): Anti-delay, anti-harassment, waste of time device.
       b) 12(g) and 12(h)3 conflict. Make Rule 12 motion, then make suggestion of
       12(b)1, which is allowable.
       c) 12(h)2: Raising a 12(b)6 at trial on merits. Redish: This doesn‟t make sense,
       but is allowable. BUT don‟t have to give at the trial on the merits. Text is
       ambiguous, could go either way.
   5) Hierarchy of preferred defenses:
       a) 12(h)1: Easier to waive because procedural, divorced from substance of case.
       Things you should know early on.
       b) 12(h)2: Tougher to waive. Middle ground.
       c) 12(h)3: Never waived. Most favored. Exclusively for benefit of defendant. 1)
       Rule 12(b)1 ensures protections from federalist friction, state and federal (protect
       state courts by ensuring that cases they should hear do not go to federal courts).
       2) Lowers burdens, expenses of federal courts.
   6) #9 on Waiver Hypothetical sheet
       a) If raise 12(b)6 once, shouldn‟t be allowed to do it again, but you can. Could go
       either way depending on case and judge.
       b) Res Judicata: Issue settled by judicial opinion. Can‟t split cause of action.
       c) Merger: Once you win, everything out of claim is merged.
       d) Bar: Lose once, everything in claim is barred.
       e) Spin-off of this: “Law of case doctrine” (Res Judicata Lite). Doesn‟t come
       from rules. When issue has been decided in case, can‟t be relitigated except on
       appeal.

L. AFFIRMATIVE DEFENSES (YES, BUT) (RULES 8(B) AND 8(C))
   1) Affirmative Defense/Denial
      (David v. Crompton & Knowles Corp., U.S. Dist. Ct., E.D., PA, 1973)
      a) Case Summary: Defendant denies that it made paper shredder on basis of lack
         of information, although facts relevant to the issue of its connection to the
         machine were within its knowledge and control.
      b) Relation to Rule 8(b)
         i)      When defendant files an answer they have three alternatives: 1) admit;
                 2) deny; 3) deny for lack of sufficient knowledge to form belief.
         ii)     If allegation is made, defendant denies and they “discover” truth later,
                 court can either: 1) not admit saying that argument should have been
                 given in answer because it was in defendant‟s control (treat as an
                 admission) or 2) decide it is part of denial and admit it.
   2) Affirmative Defense/Based on Element of Plaintiff‟s Claim


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      (Gomez v. Toledo, U.S. Sup. Ct., 1980)
      a) Fact Summary: Gomez fired, suing Toledo as police chief under § 1983 claim,
         for discharging Gomez after he reported the falsification of evidence by
         colleagues. Toledo wants to use government immunity as defense claiming he
         acted in good faith, but says that Gomez needs to allege that Toledo acted in
         bad faith.
      b) Holding: Plaintiff must plead all elements of statute only. Plaintiff does not
         need to anticipate defenses of the defendant. This would create “kitchen sink
         pleading” which would get away from shorter pleadings.
      c) Rehnquist‟s caveat in Gomez: Not saying that defendant has burden of
         persuasion at trial, just burden of pleading.
      d) Rule 8(c): List of possible affirmative defenses and catch-all for others:
         i)      accord and satisfaction
         ii)     arbitration and award
         iii)    assumption of risk
         iv)     contributory negligence
         v)      discharge in bankruptcy
         vi)     duress
         vii)    estoppel
         viii) failure of consideration
         ix)     fraud
         x)      illegality
         xi)     injury by fellow servant
         xii)    laches
         xiii) licenses
         xiv) payment
         xv)     release
         xvi) res judicata
         xvii) statute of frauds
         xviii) statute of limitations
         xix) waiver
         xx)     any other matter constituting an avoidance or affirmative defense
   3) Affirmative Defense/Counterclaim (See II. M.)

M. COUNTERCLAIMS (RULES 13 (A) AND 13(B))
   1) Wigglesworth v. Teamsters Local Union No. 592
      a) Case Summary: Defendants counterclaim libel and slander and abuse of
         process at press conference when complaint was filed. Plaintiff complaint is
         violation of rights under Federal Labor Management Disclosures Act which
         prevented him right of exercising freedom of speech and union members
         being informed of their rights.
      b) Holding: Counterclaim does not arise out of same transaction or occurrence
         (although Redish disagrees).
   2) Rule 13 (a) and (b), Compulsory and Permissive Counterclaims
      a) If the defendant‟s claim arises out of the transaction or subject matter of the
         opposing party‟s claim, then, if certain other requisites not here pertinent are


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          met, it is compulsory. Be definition, compulsory claims are “ancillary to the
          claim asserted in the complaint and [sic] no independent basis of [f]ederal
          jurisdiction is required.” Alternatively, if the counterclaim is unconnected
          with the transaction out of which the primary claim arose, it is permissive, and
          independent jurisdictional grounds are required.
      b) Strategy: File any possible counterclaim at time of pleading, otherwise may
          lose that right if filed as a separate claim at a later date. Only look at
          compulsory nature after the after, if it should have been compulsory when the
          original claim was filed.
   3) Supplemental Jurisdiction
      a) This is such a case. When a counterclaim arises out of state law in response to
          a federal claim, it can be admitted in federal court if arising out of the same
          transaction or occurrence.
      b) Strategy: If anything appears to be a counterclaim in a federal court, it is
          worth pleading for supplemental jurisdiction.
   4) Situations where events can be grouped together as same “transaction or
      occurrence.”
      a) Compulsory counterclaim (Rule 13(a))
      b) Relation back to amendment (Rule 15(c))
      c) Permissive joinder of parties (Rule 20)
      d) Supplemental jurisdiction
      e) Res judicata

N. AMENDMENTS (RULE 15)
   1) Rule 15 (a)
      a) Party may amend once at any time before responsive pleading is served, or if
          pleading is one to which no responsive pleading is permitted, party may
          amend within 20 days after it is served.
      b) Otherwise, party may amend only by leave of court with written consent of
          adverse party and “leave shall be freely given when justice so requires.”
      c) Plea in response to amended pleading shall occur within time remaining for
          response to original pleading or within 10 days after service of amended
          pleading, whichever is longer.
   2) „Given when justice so requires.” When would injustice to defendant occur?
      a) Amendment granted will unduly complicate action and confuse jury.
      b) Substantially increase defendant‟s liability.
      c) More discovery.
      d) Redo discovery. (Most important because not just adding, but start over.)
   3) Amendment after discovery: Technically allowed, but shows disrespect to court
      and Rule 16(e) is supposed to prevent this from occurring. As a result only
      allowed in cases of gross injustice
   4) Rule 15(d) Supplemental Pleadings
      a) Amendments relate to events that occurred before complaint was filed.
          Supplementals are events that occur after filing of complaint.
      b) Example: “He was hitting me. He‟s still hitting me.”



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  5) Rule 15 (c) Relation Back of Amendments (Swartz v. Gold Dust Casino, Inc., D.
     Nev. 1981)
     a) Case Summary: Woman who fell in casino desires to add additional defendant
        (defective construction added to defective maintenance of stairs) after statute
        of limitations has run out based on information gathered through discovery.
        Defendant Cavanaugh owns company in original claim as well as the
        additional company added in amendment.
     b) Holding: If arising out of same conduct or transaction and defendant is aware
        of litigation, defendant may be added after statute of limitations has run out.
     c) Rule 15 (c): Relation back of amendments can occur when:
        (1) relation back is permitted by the law that provides the statute of limitations
             applicable to the action, or
        (2) the claim or defense asserted in the amended pleading arose out of the
             conduct, transaction, or occurrence set forth or attempted to be set forth in
             the original pleading, or
        (3) (This deals with statute of limitations issue)
             i)       claim asserted in the amended pleading must have arisen from the
                      conduct, transaction or occurrence set forth in the original
                      pleading;
             ii)      the new defendant must have received notice of the action within
                      the limitations period and
             iii)     the new defendant should have known that but for a mistake
                      concerning the identity of the proper party, the action would have
                      been brought against him.
     d) Policy: Relation back and statutes of limitations
        i)        Relation back of amendments allows ability to add claims even if
                  statute of limitations has run out.
        ii)       Protecting plaintiff to enable adding defendant after learning more
                  facts through discovery.
        iii)      Why do statute of limitations exist? 1) Harder to gather reliable
                  evidence over time and 2) possible defendant doesn‟t have potential
                  lawsuit hanging over them.
        iv)       Rule 11 limits lawyers ability to plead right before statute of
                  limitations expires if had prior awareness.
     e) Schiavone v. Fortune
        a) Pre-1991
        b) Post-1991: New defendant added by amendment must be notified within
             120 days after filing suit (whether before end of statute of limitations
             period or extending after it).




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II.      DISCOVERY
A. HISTORY CONTINUUM:

BOT                         1938                       1983                             1993
True Adversary System       Attorney Control           Judicial Intervention            Auto. Disclosure
Surprise, technical skill   Adversarial system         Judges don‟t just stand back
total partnership. Give     invites fraud. After ‟38 but get involved, guide law-
no help to anyone else.     still have adversarial     yers along, club people vio-
Hegelian: Thesis-Anti-      system, although modi- lating the rules. Rule 26 (1983
thesis-Synthesis (Truth).   fied. Idea of advocates    Amendment), courts have to
Different from continen-    assisting clients, promo- get involved. Rule 26 is en-
tal system with fact-       ting private self-interest acted at same time as Rule 11.
gathering by neutral        to maximize societal wel- Redish: Doesn‟t make sense.
government.                 fare. Courts have very
                            little control. Attorneys
                            on honor system, control-
                            ling discovery completely.

      2) Importance of Discovery after Shift to Notice Pleading
         a) Prior federal practice: Pre-trial functions of notice-giving, issue-formation,
            and fact-revelation performed primarily and inadequately by pleadings.
         b) New rules: Restrict pleadings to the task of general notice-giving and invest
            the deposition-discovery process with a vital role in the preparation for trial:
            i)      As a device, along with pretrial hearing under Rule 16, to narrow and
                    clarify the basic issues between the parties and
            ii)     As a device for ascertaining the facts, or information as to the
                    existence or whereabouts of facts, relative to those issues.
         c) Battle of specificity has shifted from pleadings to discovery.

B. RULE 26 (A) REQUIRED DISCLOSURE/AUTOMATIC DISCLOSURE
   1) Initial Disclosures: Shall be made without awaiting a discovery request
      a) Name and, if known, address and telephone number of each individual likely
          to have discoverable information relevant to disputed facts alleged with
          particularity in pleadings.
      b) Copy or description of all documents, data compilations, and tangible things
          in the possession, custody, or control of the party that are relevant to disputed
          facts alleged with particularity in pleadings.
      c) Computation of any category of damages claimed by disclosing party
      d) Insurance agreements.
      e) Disclosures shall be made within ten days of Rule 26(f) meeting.
   2) Disclosure of Expert Testimony
      a) Party shall disclose identity of any person who may be used at trial to present
          evidence
      b) Disclosure shall be accompanied by written report prepared and signed by
          witness.
      c) Timing of disclosure (Rule 26(a)(2)(C))
   3) Pretrial Disclosures (In addition to initial disclosures)

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        a) Name and, if not previously provided, address and telephone number of each
            witness whom party expects to present or may call.
        b) Designation of witnesses whose testimony is expected to be presented through
            deposition.
        c) Appropriate identification of each document or other exhibit parties expects to
            offer or may offer.
   4)   Other Methods to Discover Additional Matter (Rule 26(a)(5))
        a) Depositions upon oral examination of written questions
        b) Written interrogatories
        c) Production of documents or things or permission to enter upon land or other
            property for inspection or other purposes
        d) Physical and mental examinations
        e) Requests for admission
   5)   Ways for automatic disclosure not to apply (Rule 26(a)(1))
        a) Stipulation of parties
        b) Trial court order
        c) District adopting local rule
   6)   Consequences
        a) Under old system lawyers should have brains to ask for things, now have to
            do work for opposing counsel, thus strategizing for other side, while in unique
            position to know what your own client has or knows about.
        b) Know less about client to avoid disclosure, may disrupt defense.
        c) If lawyer is not successful in figuring out what to give to opposing counsel,
            then possibility of sanctions, thus Scalia‟s dissent: Automatic disclosure may
            seem like velvet glove, but velvet glove with iron first underneath. Whole
            new level of ability for lawyers to jerk each other around.
        d) Worst of both worlds: 1) Expect more out of lawyers in defending client while
            2) Whole new layer of possible harassment from opponent.
        e) Problems exacerbated by notice pleading, thus give bonus for “pleading with
            particularity” (fact-pleading).
        f) Forum shopping: Local rule decision antithetical to Federal Rules. It destroys
            coherence and uniformity of Federal Rules and allows parties to shop not just
            between state and federal courts but now between federal and federal courts.
            Parties probably better off in district that has opted out.
   7)   Policy
        a) Yearning for civility. Takes out adversarial nature among lawyers.
        b) More efficient because requiring disclosure and no opportunity to fight about
            it. Accelerates exchange of basic information and eliminates paper work
            involved in requesting such information.
        c) Bonus for fact pleading, additional disclosure earlier in process. “Time is
            money.”

C. RULE 26(G)
   1) Description of Rule
      a) 26(g)(1): Each disclosure must be signed by at least one attorney as
         certification that disclosure is complete and correct.


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        b) 26(g)(2): Each discovery request, response, or objection shall be signed by
            attorney certifying that it is:
                 i)     Consistent with the rules and warranted by law or good faith
                        argument for extension, modification, or reversal of existing law.
                 ii)    Not done for any improper purpose, such as to harass, cause
                        unnecessary delay or increase cost of litigation.
                 iii)   Not unreasonable or unduly burdensome or expensive, given needs
                        of the case, the discovery already had in the case, the amount in
                        controversy, and the importance of the issues at stake in the
                        litigation.
                 Note on Importance of the issues: Big civil rights litigants not in it for
                 money. Without this phrase seems very bottom line, economic approach.
                 But how is it possible to measure importance.
        c) 26(g)(3): Court, upon motion or upon its own initiative shall impose sanctions
        upon person who made certification, the party itself or both. Sanction may
        include payment of reasonable expenses incurred before the violation, including
        reasonable attorney‟s fee.
   2)   Rationale and Consequences
        a) Concern with messing around on discovery requests (fishing expeditions), that
            are costly and time-consuming.
        b) But Rule 26(g) creates chilling effect.
        c) Fear that litigation may ensue regarding whether discovery was right. Result
            of vagaries, subjectivity of standard worse than Rule 11.
   3)   1983 Rule 26(g) and Rule 11 Amendments passed at same time with questionable
        effects.
   4)   Factors distinguishing Rule 26(g) from Rule 11
        a) Vague, subjective standards, more chilling, greater harm. Attorneys do not
            know how judges will use their discretion to impose these sanctions.
        b) Need for control (sanctions) not as great, claim already worth pursuing.
        c) Both can create incredible amount of satellite litigation.
   5)   Redish‟s Critique
        a) Use Rule 26(c) (see below) to prevent discovery abuses.
        b) Before 1983, few cases with discovery abuse, so 26(g) with its effects of
            chilling and satellite litigation does not seem necessary.

D. RULE 26(B) DISCOVERY SCOPE AND LIMITS
   1) In General
       Parties may obtain discovery regarding any matter, not privileged that is
          relevant.
       Information sought need not be admissible at the trial if the information
          sought appears reasonably calculated to lead to the discovery of admissible
          evidence.
   2) Limitations
       By order or local rule, court can limit number of depositions and
          interrogatories, length of depositions under Rule 30 and the number of
          requests under Rule 36.


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         Reasons for limitation
          i)      Discovery sought is unreasonably cumulative or duplicative, or is
                  obtainable from some other source that is more convenient, less
                  burdensome, or less expensive.
          ii)     Party seeking discovery has had ample opportunity by discovery in the
                  action to obtain the information sought
          iii)    Burden or expense of the proposed discovery outweighs its likely
                  benefit, taking into account the needs of the case, the amount in
                  controversy, the parties‟ resources, the importance of the issues at
                  stake in the litigation, and the importance of the proposed discovery in
                  resolving the issues.
   3) Trial Preparation
       Court shall protect against disclosure of mental impressions, conclusions,
          opinions, or other legal theories of attorney concerning the litigation.
   4) Trial Preparation (Experts)
       Party may depose any person who has been identified as an expert whose
          opinions may be presented at trial.
   5) Claims of Privilege or Protection of Trial Preparation Materials
       If withholding information as privileged, party shall make claim expressly and
          describe the nature of the material without revealing the information itself in
          order to assess the applicability of the privilege or protection.

E. RULE 26(C) PROTECTIVE ORDERS
    Motion to protect privileged materials may be made if there is certification that
     movant has in good faith conferred or attempted to confer with other affected
     parties to resolve the dispute without court action.
    Protections from annoyance, embarrassment, oppression or undue burden or
     expense may be made by court by one or more of the following:
     i)      that the disclosure or discovery not be had;
     ii)     that the disclosure or discovery may be had only on specified terms and
             conditions, including designation of time or place;
     iii)    that discovery only be had by another method of discovery;
     iv)     that scope of discovery be limited to certain matters;
     v)      that discovery be conducted with no one present except persons designated
             by court;
     vi)     that deposition be sealed and opened only by orders of court;
     vii)    that trade secret or other confidential research, development or
             commercial information not be revealed or only be revealed in designated
             way;
     viii) that parties simultaneously file specified documents or information in
             sealed envelopes to be opened as directed by the court.
    If motion is denied, order to provide or permit discovery with Rule 37(a)(4)
     applying to award of expenses incurred in relation to the motion.




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F. RULE 26 (D) TIMING AND SEQUENCE OF DISCOVERY
    Requests for discovery may not be made until Rule 26(f) discovery conference
     (see below).

G. RULE 26 (E) SUPPLEMENTATION OF DISCLOSURES AND RESPONSES
    Duty to supplement or correct disclosures

H. RULE 26 (F) MEETING OF PARTIES; PLANNING FOR DISCOVERY
    Except where exempted by local rule, parties shall meet as soon as practicable or
     at least 14 days before a scheduling conference is held or a scheduling order is
     due under Rule 16(b).
    Meeting to discuss the nature and basis of their claims and defenses and
     possibilities for prompt settlement or resolution of case, to make or arrange for
     disclosures required by Rule 26(a)(1), and to develop discovery plan.
    Discovery plan shall consist of:
     i)       What changes should be made in timing, form, or requirement for
              disclosures under Rule 26(a)(1) or local rule;
     ii)      Subjects on which discovery may be needed, when discovery should be
              completed, and whether discovery should be conducted in phases or be
              limited to or focused upon particular issues;
     iii)     What changes should be made in limitations on discovery imposed under
              these rules or by local rule, and what other limitations should be imposed;
              and
     iv)      Other orders entered by court under Rule 26(c) or under Rule 16(b) and
              (c).
    Discovery plan shall be submitted to court within 10 days after meeting.

I. DEPOSITIONS UPON ORAL EXAMINATION (RULE 30)
   1) Rule 30
      a) Anyone can be deposed, including a party. (Rule 30(a)(1))
      b) Limit of ten depositions, otherwise leave of court (Rule 30(a)(2)(A)). Leave
         of court also for deposition of person already deposed or deposition before
         time specified in Rule 26(d).
      c) If subpoena duces tecum is served, the designation of materials to be produced
         shall be including with notice (Rule 30(b)(1)).
      d) If public or private corporation or partnership or association or government
         agency is served, matters should be described with reasonable particularity.
         Organization shall designate one or more persons to testify on its behalf and
         set forth or each the matters on which person will testify. (Rule 30(b)(6)).
      e) Examination and cross-examination may occur. Objections may be made and
         recorded but the examination shall proceed, with the testimony being taken
         subject to the objections. Rule 30(c).
      f) Party may instruct deponent not to answer: a) to preserve a privilege; b) to
         enforce a limitation on evidence directed by the court; c) to present a motion
         under Rule 30(d)(3) (Rule 30(d)(1)).
      g) Can make a showing that examination is being conducted in bad faith, court
         may stop deposition or limit it under Rule 26(c). Deposition may be stopped

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          in order to make this order. The provisions of Rule 37(a)(4) apply to the
          award of expenses incurred in relation to the motion (Rule 30(d)(3)).
      h) If party giving notice of taking of deposition does not appear or if party fails
          to subpoena witness and thus that witness does not appear, party is liable for
          reasonable expenses of that other party and that party‟s attorney. (Rule 30(e)).
      i) Just because it is on the record does not mean it is automatically admissible in
          court.
   2) Purposes of depositions
      a) Information gathering device
      b) Preparation for trial/building case.
      c) Preservation of testimony. Gather testimony from someone before their death,
          use at court.
      d) Live testimony allows better determination of credibility.
      e) Video testimony being used increasingly since 1995. More interesting to
          juries, often entire tape will be shown rather than particular questions of oral
          deposition read aloud.
      f) Impeachment: Witness changes story, locked in at deposition.
      g) Far and away most used discovery device because you can question the
          witness.
   3) Rule 53: Special master, often retired judge appointed by court, to rule on
      objections and prevent conflicts which would occur without presence of judge.

J. DEPOSITIONS UPON WRITTEN QUESTIONS (RULE 31)
    1) Rule 31
       a) Testimony may be taken of any person, including a party by deposition upon
           written questions (Rule 31(a)(1)).
       b) Limit of ten depositions. Leave of court must be obtained in order to a) take
           more than ten depositions; b) take deposition of someone already deposed; c)
           take deposition before time specified in Rule 26(d) (Rule 31(a)(2)).
       c) Cross-questions may be served (Rule 31(a)(4)).
    2) Policy and Consequences
       a) Fit in between
       b) Useful if witness in remote location
       c) Stenographer reads question and witness answers for first time.
       d) A lot cheaper because lawyers not present
       e) Problem: No chance for follow-ups, although cross-questions may be served.

K. USE OF DEPOSITIONS IN COURT PROCEEDINGS (RULE 32)
   1) Rule 32(a): Depositions may be used in court in accordance with the following:
      a) For the purpose of contradicting or impeaching the testimony or deponent as a
         witness;
      b) Deposition of party or anyone who at time was an officer, director, or
         managing agent, or person designated under Rule 30(b)(6) or 31(a) to testify
         on behalf of public or private corporation, partnership or association or
         government agency may be used by adverse party for any purposes.
      c) Deposition of witness, whether or not a party, may be used by any party if:


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           i)      witness is dead
           ii)     witness is at greater distance than 100 miles from place of trial or
                   hearing, or is out of the U.S. for good reason
           iii)    witness is unable to attend because of age, illness, infirmity, or
                   imprisonment
           iv)     party offering the deposition has been unable to procure attendance of
                   witness by subpoena
           v)      exceptional circumstances in interest of justice and with due regard to
                   the importance of presenting the testimony of witnesses orally in open
                   court to allow deposition to be used.

L. INTERROGATORIES (RULE 33)
   1) Rule 33
      a) Party may serve up to 25 interrogatories to another party only. Leave of court
          is needed to serve more or to serve before time designated in Rule 26(d) (Rule
          33(a)).
      b) Business records: Where answer may be ascertained in this manner and
          burden would be same for either party, it is sufficient to specify records from
          which answer may be obtained and afford party serving the interrogatory
          reasonable opportunity to examine, audit or inspect such records (Rule 33(d)).
   2) Advantages of interrogatories
      a) Obtain information that would best be in writing, i.e., statistics, sales figures,
          etc.
      b) A lot less expensive
   3) Disadvantages of interrogatories
      a) Much clumsier information gathering device
      b) Can‟t ask follow-ups, at least not at same time.
      c) Cannot make witnesses look bad and force settlement, as with depositions.
      d) Interrogatories can be highly rehearsed.
   4) Problem with interrogatories: Most abused discovery: Ask in two lines which it
      takes forty years to answer. Can object to these requests, but cannot ignore them.

M. PRODUCTION OF DOCUMENTS AND THINGS FOR ENTRY UPON LAND
   FOR INSPECTION AND OTHER PURPOSES (RULE 34)
   1) Rule 34(a) and (b): Party may request from another party various documents
      which shall be produced and if not shall be subject to Rule 37 sanctions.
   2) Rule 34(c): Person not a party to action may be compelled to produce documents
      and things or to submit to an inspection as provided in Rule 45.
      a) Subpoena duces tecum: Deponent may be required to bring documents with
         them to deposition (See Rule 30(b)(1)).
      b) Problem develops in wanting documents from non-party witness, could
         request deposition, make out you want to ask questions just to take documents
         SO----
      c) 1991 Amendment, Rule 34(c): Method for people who are not parties to be
         subpoenaed for documents.
      d) Civil and Criminal Contempt (Rule 45): Told to do something and don‟t do it,
         in civil contempt until it is done. Criminal contempt occurs when sent to jail

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         for offending court, used as punishment until you comply. Subpoenas for
         discovery are not to parties but to non-party witnesses.
   3) Societe International v. Rogers
      a) Summary: Attempt to take property from SI for their trade with Nazis. SI
         sues attorney general. Government wants SI to produce Swiss business
         records but SI says it cannot.
      b) Influence test is imposed on SI. Does party have “possession, custody or
         control of documents? In this case SI does not, but they have influence over
         the party that does, which still makes them responsible for obtaining the
         information.
      c) Highly limited, usually in cases of fraud, often when party claims material is
         in hands of third party.

N. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 35)
   1) Rule 35 (a): Two differences between this rule and other discovery devices:
      a) Mental, physical examination must be “in controversy” within the case.
      b) Only can be made “with good cause shown.”
   2) Only discovery device where violation cannot be punished with contempt.
   3) Only parties are subject to this Rule.
   4) Rationale: Personal privacy.
   5) Schlagenhauf v. Holder
      a) Case Summary: Judge rules that Schlagenhauf, Greyhound bus driver
         involved in vehicle accident, be submitted for nine different examinations by
         neurologists, psychiatrists, internal medicine doctors and ophthalmologists.
         Schlagenhauf sues trial court judge forcing him to take exam. Supreme Court
         rules that discovery order was improper because it was not supported by
         sufficient showing, although it remands for more careful evaluation, leaving
         open the possibility of a visual examination.
      b) Tension between need to ascertain truth and right to privacy.
      c) Supreme Court graduating among the physical and mental tests.
         i)      Vision meets in controversy and good cause requirements, but problem
                 is that this is a conclusory allegation, no proof of requirement of vision
                 test in complaint.
         ii)     “What may be good cause for one type of examination may not be so
                 for another.” Sliding scale of good cause:
                 Tests not as humiliating: Lower bar
                 Tests more humiliating: Higher bar
                 More invasive test, the more that is demanded.
                 All Schlagenhauf should be read for.

O. TANGENT ON SCHLAGENHAUF: FINAL JUDGMENT ORDERS
   1) Can only appeal final judgment orders that end case, not interlocutory orders
      (non-final orders).
   2) If lose, then appeal interlocutory orders all at once, but if win may moot
      interlocutory orders.
   3) Consequences of Final Judgment Rule


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      a) If allow early appeals, perhaps lots of extra suits, but perhaps save time in
          some cases. Example: 6 month, $2 million case with motion to dismiss on
          statute of limitations and court denies. If allowed to appeal and win, save time
          and money.
      b) By not allowing early appeal, burden everyone equally.
   4) Writ of Mandamus: Filing of whole new proceeding against judge. Schlagenhauf
      pursues this because he does not want to submit to exams. Schlagenhauf was
      high water mark for Mandamus.
   5) Interlocutory Appeal Act (§1292(b)): Statutory safety valve to final judgment
      rule. Trial judge has to certify that she may be wrong and may save time to allow
      appeal at that time. This has not worked well because judges do not want to
      admit that they are wrong.

P. MANAGING THE SCOPE AND BURDEN OF DISCOVERY
   1) Davis v. Ross
      a) Fact Summary: Plaintiff sues for defamation. Through discovery she
         requests: 1) information on Ross‟ personal wealth; 2) billable hours of Ross‟
         law firm; 3) names of other employees who have complained about defendant,
         and nature of their complaints. Judge rules that all of these are not allowable
         because private. At same time he grants Ross‟ discovery request for mental
         examination on Davis because Davis is suing.
      b) Redish‟s response to 1) Information on Ross‟ personal wealth
         i)      Substantive: Could do discovery and keep it under wraps so that there
                 is no serious prejudice to jury making redistributive decision.
         ii)     Procedurally: Discovery is set up to do this, not worth it to redo
                 discovery after case is decided and have jury wait.
      c) For Assessment of Punitive Damages Need to Know How Much Person is
         Worth
         i)      Court says need to know worth but not yet.
         ii)     Under New York law have bifurcated proceeding—first assess liability
                 then punitive damages:
                  a) Still why not allow discovery now even if won‟t go to jury until after verdict.
                  b) Court doesn‟t want every plaintiff to obtain private information.
                  c) Coca-Cola Case: Bottlers said they have right to obtain any Coke product and
                     Coca-Cola says they can only get Coke—Ps want to prove same product by
                     getting ingredients to Coke—Coke not going to give so they settle.
                  d) Shows how discovery can be used to ask for something very sensitive and get D
                     to settle.
                  e) If judge allowed discovery of Ross‟ assets and net worth he would feel that he is
                     creating settlement in frivolous case.
       d) Response to 2) Billable hours of Ross‟ law firm
          i)    Davis wants information because Ross‟ lawyer is witness and she is
                concerned he may not be telling the truth.
          ii)   Court decides there is ability to probe for bias by inquiring into
                existence and nature of lawyer-client relationship BUT mere fact of
                employment does not mean bias.
          iii)  Redish: No other reason to prohibit discovery here than relevance and
                this is relevant.

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      e) Response to 3) Other employees complaints with Ross
         i) Redish: Truth is an absolute defense. If what is said is true than it is not
         defamatory. Burden has to be on plaintiff to prove absence of truth, thus this
         should be allowed.
      f) Ross‟ request for mental examination on Davis: Court said must be permitted
         to prove existence of damage on Davis‟ part since she is suing for mental pain
         and anguish.
   2) What Ross Reveals about Latitude of Application of Discovery (See Rule
      26(b)(1) and Rule 26(b)(2)).
      a) Relevance can be played with. As long as not privileged, might get us
         somewhere, be allowable.
      b) Enormous discretion and power of trial court regarding control of discovery
         i)      Discovery orders not final orders. Hard to appeal.
         ii)     Even if able appeal: a) appellate courts don‟t want to overrule
                 district/trial courts because of their access to nuances; b) once they
                 start reverse some decisions, more people will appeal; c) district judge
                 has to have respect of litigants.
      c) Safety valve for this through Interlocutory Appeal Act for egregious acts like
         in Schlagenhauf.
   3) Confidentiality Orders
      a) To what extent on discovery orders is it appropriate to have confidentiality
         orders?
      b) Purpose: To protect parties by keep information confidential.
      c) Confidentiality encourages settlement, controlling litigation because litigation
         is not supposed to be doing these things.

Q. EXEMPTIONS FROM DISCOVERY
   1) Hickman v. Taylor
      a) Fact Summary: Attorney for tugboat company (defendant) interviews four
         survivors of accident. One of decedent‟s representatives files a complaint
         against tug owners, individually and as partners and railroad. Decedent‟s
         representative (plaintiff) filed interrogatories to defendant, but attorney did not
         release them claiming “privileged matter in preparation for litigation.”
         District court rules the material should be released. Appellate court reverses,
         calling it privileged as “work product of the lawyer.” Supreme Court hears
         case. Tension between something prepared in:
         Anticipation of litigation------------------------Ordinary course of business
         Here, the controversy relates to fact that this was done before the litigation
         began.
      b) Holding: Information not privileged but not available to plaintiff, not because
         it is mental impression, but because they plaintiff not show good cause for
         legwork work product. Not substantial need because plaintiff had other means
         of obtaining information. Supreme Court says this is not privileged, because
         privilege is not absolute, as is attorney-client privilege.
   2) Legwork and Mental Impressions Work Product



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       a) Legwork Work Product: Fruits of attorney‟s labor in anticipation of litigation.
       Can be obtained if:
               i)       denial would unduly prejudice case (substantial need)
               ii)      other party cannot get it (can‟t be obtained other way)
       Why protect legwork product?: No incentive to get interview first if one lawyer
       who gets it has to share it with the other.
       b) Mental Impressions: Attorney‟s mental impact, reaction to evidence, trial
           strategy. Very difficult to obtain mental impressions on their own (though
           may be implicit in legwork work product). Problems with mental
           impressions:
               i)       Taking lawyer away from role as advocate and placing him within
                        the case itself.
               ii)      Would not want things written down if allowed to use mental
                        impressions.
               iii)     Chilling and demoralization.
       c) Result of this is to maintain some part of adversary system within Federal
           Rules, even moving toward openness.
  3)   Rule 26(b)(3): Court protects against disclosure of mental impressions: “[T]he
       court shall protect against disclosure of the mental impressions, conclusions,
       opinions, or legal theories of an attorney or other representative of a party
       concerning the litigation.”
  4)   Is Rule 33(c) a Caveat?
       a) “An interrogatory otherwise proper is not necessarily objectionable merely
           because an answer to the interrogatory involves an opinion or contention that
           relates to fact or the application of law to fact.”
       b) Seems like case of asking attorney, “What are you going to argue in this
           case?”
       c) Result is that attorney may have to give conclusions, but does not have to say
           how you got there.
  5)   Fraud and Adversariness
       a) Fine lines between what is part of adversary system of discovery and what is
           fraud.
       b) Hypo: Attorney commissions three studies in trademark infringement case.
           Two surveys said consumer confusion between products, one says there is no
           consumer confusion. Only the third survey is presented. Is this fraud? Not
           wrong not to introduce other two. Not wrong only to say one is correct. What
           is wrong is to say that no survey showed confusion. It is up to opposing
           counsel to ask for the other two surveys.
       c) Hypo: Scientific study for companies accused of product liability. Five for
           their industry, five against their industry. Only choose given for their
           industry. Not fraud. It is plaintiff‟s job to get other five. If there is a bribe or
           falsification of results, then fraud.
  6)   Should Work be Protected for Future Litigation?
       a) Courts divided, some say protection only extends to “related” litigation, not
           unrelated litigation.



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       b) Federal Trade Com‟n v. Grolier, Inc.: Supreme Court says that work in
          connection with terminated litigation could be withheld from request under
          Freedom of Information Act because it was still protected by the doctrine.
          Did not hold true that it would be true in civil litigation.

R. RULE 37: FAILURE TO MAKE DISCLOSURE OR COOPERATE IN
DISCOVERY: SANCTIONS
   1) Rule 37
   i) Making motions under Rule 26(a): If party fails to make disclosure as required by
            Rule 26(a), any other party may move to compel disclosure and appropriate
            sanctions. Motion must include certification that movant has in good faith
            conferred or attempted to confer with party not making the disclosure (Rule
            37(a)(2)(A)).
   ii) Making motions under other Rules: Motions may be made to compel answer if
            deponent fails to answer under Rules 30 or 31, corporation or other entity does
            not make designation under Rule 30(b)(6) or 31(a), party fails to answer an
            interrogatory under Rule 33, or party does not comply with document
            inspection order under Rule 34. All must be certified with good faith effort.
            In oral deposition situations, the deposition may be completed or adjourned
            before applying for the order (Rule 37(a)(2)(B)).
   iii) If motion is granted or if disclosure is made after filing of motion, then party in
            error is responsible to pay to moving party reasonable expenses incurred in
            making motion, including attorney‟s fees unless not done in good faith or
            other special circumstances (Rule 37(a)(4)(A)).
   iv) If motion is denied, protective order may be enter under Rule 26(c) and moving
            party or attorney filing motion or both is required to pay reasonable expenses,
            including attorney‟s fees, of other party unless special circumstances (Rule
            37(a)(4)(B)).
   v) Contempt: If deponent fails to be sworn or to answer question after being directed
            by court, failure may be considered contempt of that court.
   vi) Sanctions if Order of Court is not Obeyed (Rule 37(b)(2)(A-E)
            i)       Establishment Order: Matters about which order was made shall be
                     established.
            ii)      Preclusionary Order: Prohibition from introducing designated matters
                     in evidence.
            iii)     Striking of pleadings or parts thereof, or staying further proceedings
                     until order is obeyed, or dismissing the action or any part thereof, or
                     rendering a judgment by default against disobedient party.
            iv)      Contempt of court, except for failure to submit to physical or mental
                     examination.
            v)       Expenses, including attorney‟s fees, caused by failure to comply,
                     except under special circumstances.
   vii) Failure to Disclose, Attend, Answer, or Respond: Sanctions may be imposed
            without an order (Rules 37(c) and (d)).
   viii) Objectionable discovery may not be used as an excuse unless party has
            pending motion for protective order (Rule 37(d)).


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  ix) Failure to participate in framing of discovery plan may require party to pay
         expenses, including attorney‟s fees of other party (Rule 37(g)).

  2) Cine Forty-second Street Theatre Corp. v. Allied Pictures Corp.
     a) Fact Summary: Cine (P) takes action against Allied (D) and others for
        conspiracy to cut Cine‟s access to first-run films. It sought treble damages
        under antitrust laws and injunctive relief. D proposed interrogatories on issue
        of damages, P repeatedly fails to answer. Magistrate held that P acted
        willfully in not complying and precluded P from admitting evidence on
        damages. District judge believes it is gross negligence and imposes a fine
        only. He certified an interlocutory appeal on his own motion.
     b) Holding and Rule: A grossly negligent failure to obey an order compelling
        discovery is sufficient to justify severest disciplinary measures under Rule 37.
        Thus, P cannot admit evidence on damages, leaving only claim for injunctive
        relief.
     c) Due Process Protection—Relation to Societe Internationale: Two parts to this
        case. Due process is the other after influence test. SI acts with good faith to
        use its influence and still cannot get information, thus due process protects it
        from sanctions.
     d) Purposes of Sanctions
        i)       Preclusionary orders ensure party won‟t profit from own failure to
                 comply
        ii)      Deterrence
        iii)     Ensure that discovery process is complied with.




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III.   SUMMARY JUDGMENT
A. RULE 56
   1) For Claimant: Party may move for summary judgment any time after 20 days
      from the commencement of the action or after service of motion for summary
      judgment, with or without supporting affidavits (Rule 56(a)).
   2) For Defending Party: May at any time move, with or without supporting affidavits
      (Rule 56(b)).
   3) Motion: Summary judgment shall be rendered if evidence shows that “there is no
      genuine issue as to any material fact and that the moving party is entitled to
      judgment as a matter of law” (Rule 56(c)).
   4) Case Not Fully Adjudicated on Motion: Court may grant summary judgement on
      part of case, but rest of case will still have to be adjudicated (Rule 56(d)).
   5) Affidavits: “When a motion for summary judgment is made and supported as
      provided in this rule, an adverse party may not rest upon the mere allegations or
      denials of the adverse party‟s pleading, but the adverse party‟s response, by
      affidavits or as otherwise provided in this rule, must set forth specific facts
      showing that there is a genuine issue for trial. If the adverse party does not so
      respond, summary judgment, if appropriate, shall be entered against the adverse
      party” (Rule 56(e)).
   6) Affidavits are Unavailable: If party opposing motion cannot obtain affidavits,
      court may refuse application for judgment or may order a continuance to permit
      affidavits to be obtained, depositions to be taken or discovery to be had. (In other
      words, summary judgment motion may come before discovery, but may not be
      granted until necessary discovery is had.) (Rule 56(f)).
   7) Affidavits Made in Bad Faith: If affidavits are made in bad faith or for the
      purpose of delay, court shall order the party employing them to pay to the other
      party the amount of reasonable expenses which the filing of the affidavits caused
      the other party to occur including reasonable attorney‟s fees and may possibly be
      guilty of contempt (Rule 56(g)).

B. SUMMARY JUDGMENT IN CONTEXT OF OTHER MOTIONS
   1) Pre-Summary Judgment
      a) Rule 12(b)(6): Defendant looking at plaintiff‟s claim
      b) Rule 12(c): Either party looking at both sides
      c) These have nothing to do with truth or falsity of allegations; assume truth of
          allegations.
   2) Post-Summary Judgment (Rule 50: Judgment as a Matter of Law)
      a) Directed Verdict: Direct jury back with verdict in my favor. Occurs before
          case goes to jury. Usually judges don‟t want to do this for fear of being
          reversed. Have to a new trial because case never went to a jury if appellate
          court overrules decision.
      b) Judgment N-O-V: Judge overrules jury decision. Reinstate verdict if judge is
          wrong because deliberation has occurred. Jury finding.
      c) Can‟t move for judgment N-O-V without judgment for directed verdict.


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      d) Directed verdict: jury verdict irrational. Motion for new trial: jury verdict
         rational, but reason to be wrong.
      e) Rule 59: New Trial
   3) Summary Judgment v. Judgment as a Matter of Law
      a) Summary judgment asks same questions as J.M.O.L but at a different point in
         process. Does the party have enough evidence that a reasonable finder of fact
         could find for it?
      b) Because of this, seems summary judgment would be harder, but Supreme
         Court says that it is not.
      c) Why have Summary Judgment then?: Don‟t need summary judgment if
         J.M.O.L. is there, but use summary judgment to avoid trial. Theoretically
         don‟t need J.M.O.L, when have summary judgment; shouldn‟t need to get to
         J.M.O.L. Still have the two coexisting because occasionally there are cases
         that still ought to go to trial.

C. THE BURDENS DISTRIBUTED IN THE SYSTEM
   1) Burden of Pleading: Given to that side which wishes to produce the evidence at
      trial. (Rehnquist in Gomez makes this view unclear.)
   2) Burden of Proof
      a) Burden of Production: One party has this at a time. Burden can shift back and
           forth all over the place. Central focus is determining if party has enough
           evidence get to trial, i.e. producing enough evidence that a reasonable finder
           of fact has enough evidence that you could find for him.
      b) Burden of Persuasion: This burden rests with the party that must convince the
           trier of fact at trial of the accuracy of his factual assertions. This means that
           the party that is not able to convince the judge or jury will lose the case.
           Usually plaintiff on main case and defendant on affirmative defenses.
   3) The Mechanics of the Burdens:


D. ADICKES V. S.H. KRESS & CO. (1970)
   1) Fact Summary: Adickes was refused service at restaurant and was arrested for
      vagrancy. Brought action under § 1983, alleging conspiracy between Kress and
      the police. Under circumstances, a conspiracy could have existed only if police
      had been present in the store. Adickes could not show that police were present so
      Kress moved for summary judgment. This was granted and affirmed. Supreme
      Court reversed.
   2) Point of Adickes: In an action based on conspiracy, summary judgment may not
      be granted unless a defendant can show that no evidence thereof exists. (In
      Adickes, court doesn‟t care if plaintiff‟s evidence enough because Kress did not
      shift burden, foreclose possibility policeman was in store.)
   3) Analysis
      a) In this case, Kress needed to prove not only that the court could find for them,
          but that they should or must find for them. Thus, no need to bother looking at
          Adickes‟ evidence. Kress could not lift the burden to see it. This will change.



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        b) Effect of Celotex: Court in Celotex liberalized burden on moving party,
           holding that such a party on issue the opposing party has the ultimate burden
           of proving, could prevail on the basis that the nonmoving party could not
           produce evidence on the issue.
        c) This has made summary judgment much easier to obtain in federal courts,
           although most state courts retain procedures similar to the Adickes ruling.

E. THE THREE VIEWS ON SUMMARY JUDGMENT
   1) The traditional view (Adickes standard)
      a) Movant who does not have the burden of persuasion at trial must not only
         meet burden but shift it (meaning that finder of fact must find for him).
      b) Once the burden is shifted, the non-movant must at least meet its burden with
         facts (affidavits, interrogatories, etc.). Cannot just rely on pleadings (Rule
         56(e)).
   2) Louis‟ view
      a) The movant who does not have the burden of persuasion at trial must only
         meet his burden (meaning that the finder of fact could find for him).
      b) This can be done in two ways: 1) show that the non-movant does not have
         enough evidence to win at trial (preview his case) or 2) use movant‟s evidence
         to show that there is no genuine issue of fact and deserves decision as a matter
         of law.
   3) Currie‟s view (Redish agrees)
      a) Currie identifies the point of summary judgment as “to discover whether the
         parties have enough evidence to justify the time and expense of trial.”
      b) Summary judgment should mirror the analysis made during directed verdict.
      c) Movant who does not have the burden of persuasion at trial must simply make
         motion
   4) Continuum

Adickes                              Louis                                 Currie
Must shift burden                    Preview non-movant’s case             Make motion
                                     or meet own burden
   5) The harassment fallacy: Some argue that Currie‟s approach may lead to
      harassment, because it would be easy to make summary judgment motions, but
      Rule 11 can be used and Rule 56(f) is ultimate safety valve, meaning there is no
      way that this can be considered harassment, because non-movant can simply say
      it needs more time for discovery.
   6) Difference between who has burden
      a) These three approaches exist only when movant does not have burden of
          persuasion at trial.
      b) If the movant has the burden of persuasion at trial, the movant must shift.
          Why? Summary judgment avoids unnecessary trials. At trial, movant will
          have to meet burden and close off all other arguments as well.
F. CELOTEX CORP. V. CATRETT (1986)
   1) Fact Summary: Catrett‟s husband died and she sued several asbestos
      manufactures, claiming the death resulted from exposure to their products.
      Celotex, one of the manufactures, moved for summary judgment on basis that no

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         evidence existed that the decedent was exposed to its products. District court
         granted, appellate court reversed, Supreme Court granted motion for Celetox.
   2)    Point of Celetox: Summary judgment must be entered against a party who fails to
         make a showing sufficient to establish the existence of an essential element to his
         case and on which he bears the burden of proof at trial.
   3)    Analysis
   a)    Celotex is link of the 1986 summary judgment trilogy. With shift to notice
         pleading, summary judgment becomes more important. Courts can‟t afford
         luxury not to use summary judgment. Weapon against: 1) waste; 2) inefficiency;
         3) undue burdens; 4) harassment.
   b)    Rehnquist‟s opinion demonstrates two main points by collapsing summary
         judgment and directed verdict for question of burden shifting:
         i)      Move closer to Currie because it‟s simple test, but no lawyer will just
                 move, they will try to make a “pointing out” argument which is closer to
                 Louis approach.
         ii)     Sua sponte: Judge can decide without defendant moving.
   c)    White‟s concurring opinion closer to Louis than Currie. Movant must discharge
         burden of rules. At least “pointing out” which means more emphasis on
         affirmative action of the movant. “It is not enough to move for summary
         judgment without supporting the motion in any way or with a conclusory
         assertion that the plaintiff has no evidence to prove his case.”
   d)    Continuum

Currie                                 Louis                                 Adickes
Make motion                            Preview non-movant’s case             Shift burden
                                       or meet burden
         Rehnquist             White
         Pointing out          Discharge burden of rules
                               At least point out

G. ARNSTEIN V. PORTER (2ND CIR. 1946)
   1) Fact Summary: Arnstein appealed summary judgment for Porter, who, Arnstein
      alleged, had stolen tunes for several popular songs Porter had written.
   2) Point of Arnstein: Where credibility of the parties is crucial, summary judgment is
      improper and a trial is indispensable. Only evidence that Arnstein has is Porter‟s
      performance at the stand. So Frank and Hand deny summary judgment on basis
      that jury may disbelieve Porter.
   3) Analysis
      a) Relates to non-movant‟s burden once the curtain is lifted by the movant
          (which is what the earlier cases related to).
      b) Hand and Frank‟s opinion is termed the “slightest doubt test”: Can‟t grant
          summary judgment if there‟s any chance that non-movant might be right.
          Also known as scintilla rule.
      c) Clark dissents on basis that he needs summary judgment to maintain notice
          pleading system. If not grant summary judgment, impossible to use it
          effectively because too many cases would go to jury.



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       d) Dyer and definitely Celotex decisions bury this rule. In these cases, although
          some doubt exists, summary judgment was granted anyway. Thus, court
          moving toward Clark‟s opinion, although some still use scintilla rule.
       e) Alternative is Substantial Evidence Test that requires party with burden of
          production to have substantial evidence. This tougher rule is based on two
          rationale: 1) judicial administration, efficiency/burden and 2) juries into
          economic redistribution, tougher summary judgment rules stop this.

H. DYER V. MacDOUGAL (2ND CIR. 1952)
   1) Fact Summary: Summary judgment in a defamation action was granted in favor of
      MacDougal when he produced evidence that everyone to whom the alleged
      defamation was published denied receiving such statements.
   2) Point of Dyer: Summary judgment is appropriate in a defamation action when all
      individuals supposedly receiving the defamatory statements deny such receipt.
   3) Analysis
      a) Although theoretical doubt may still exist, it is doubtful jury would disbelieve
          this evidence and, moreover, it is doubtful that this case could get beyond
          motion for directed verdict.
      b) Without overruling Arnstein, Dyer goes the other way.
      c) Frank find flaw in Hand‟s logic: Hand argues from alleged unreviewability of
          cases with directed verdict relying on demeanor evidence as reason to grant
          summary judgment, but Frank says they are reviewable, for if Hand were
          correct any directed verdict cases relying on oral testimony would be
          unreviewable.

I. HARLOW V. FITZGERALD (U.S. SUP. CT. 1982)
   1) In a case of qualified, or “good faith” government immunity, court decides that
      objective standard should be used to analyze defendant‟s actions, not subjective
      standard. This makes judgment on defendant‟s conduct easier to determine, thus,
      making summary judgment easier to determine.

J. MATSUSHITA ELECTRIC INDUSTRIAL CO. V. ZENITH RADIO CORP.
   (US. SUP. CT. 1986)
   1) Fact Summary: American manufacturers bring antitrust suit against Japanese
      manufacturers for predatory pricing, but no evidence that it worked.
   2) Court rules in favor of summary judgment
      a) Opponents of summary judgment must show more than that there is some
          metaphysical doubt as to material facts.
      b) If factual context renders a party‟s claim implausible, party must have more
          persuasive evidence to support claim than would otherwise be necessary.
   3) Effects
      a) Court virtually puts an end to slightest doubt test. Mere presence of
          metaphysical doubt is not enough to prevent summary judgment.
      b) Court goes against dictum in Poller v. CBS, 1962, in which it resisted granting
          summary judgment in complex litigation cases. It would seem you would
          want to avoid unnecessary big trials, but court in Poller says that when there


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           is an issue of motive, it should go to the jury. Here, however, court doesn‟t
           hesitate to grant summary judgment in a big case.

K. ANDERSON V. LIBERTY LOBBY (US. SUP. CT. 1986)
   1) Summary judgment in defamation cases: Summary judgment burden is same as
      trial burden—clear and convincing evidence.
   2) In N.Y. Times v. Sullivan (1964), Supreme Court establishes that first amendment
      rights of free expression prohibited imposition of damages for defamation of
      public officials and public figures unless the defamation was published with
      “actual malice”—knowledge of falsity or reckless disregard of truth or falsity.
   3) Court required that plaintiff prove presence of actual malice by clear and
      convincing evidence, a standard much stricter than the usual preponderance of the
      evidence.
   4) In Anderson court considered whether this higher burden for plaintiffs meant that
      defendants should have a more lenient standard than normal for summary
      judgment. Court says that it should.
      a) Parallel summary judgment with directed verdict.
      b) Thus, standard of proof for summary judgment should be same as that at trial.
      c) Must ask in defamation cases, for example, whether reasonable finder of fact
           could conclude that plaintiff showed with convincing clarity that defendant
           acted with actual malice.
   5) Rehnquist in dissent: Clear and convincing evidence is nontranssubstantive, it is
      an exception particular to trial. Rule 56 summary judgment means that
      defamation is transsubstantive, what‟s good for one action is good for another.
      Redish says that Rehnquist‟s anger should be directed to N.Y. Times decision
      which gave defamation the clear and convincing standard.

L. WHEN THE DUST SETTLES
   1) Summary judgment standard similar to directed verdict.
   2) Supreme Court favors Currie standard of merely pointing out or less. This makes
      summary judgment easier to obtain. But be aware of White‟s concurrence that
      demands a little more than merely pointing out.
   3) “The majority of post-Celotex lower courts have read that decision not to impose
      a significant triggering burden on a movant who lacks the burden of production at
      trial. Indeed, many lower court decisions following Celotex have either reduced
      the burden dramatically or ignored it completely.”
   4) Judicial administration reasons favor granting summary judgment for efficiency.
   5) Clark (and Rehnquist in Celotex) realizes importance of liberalization of summary
      judgment with the shift to notice pleading. Open up funnel at top means closing it
      at bottom. Thus, tougher standard of substantial evidence on non-movant once
      the movant has lifted the curtain. This is demonstrated in Dyer and Matsushita.
   6) Defamation standard is clear and convincing evidence that makes it easier for
      defendant to obtain summary judgment in such cases.
   7) Note that partial summary judgment may be granted, but litigation remains on
      other parts of claim.



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IV.    JUDGMENT AS A MATTER OF LAW

A. RULE 50: JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY
   JURY; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL
   RULINGS
   1) If a party has been fully heard with respect to an issue and there is no legally
      sufficient evidentiary basis for a reasonable jury to have found for that party with
      respect to that issue, the court may grant the motion against any claim that cannot
      under the controlling law be maintained without a favorable finding on that issue.
   2) JMOL combines old directed verdict and JNOV.
   3) Very much like summary judgment with same burden shifting analysis. But
      without the business of moving party proving enough to get courts to lift the
      curtain.
   4) Asks same question as summary judgment: Could a reasonable finder of fact find
      for party with burden of production based on the evidence presented?
   5) Judge is not to decide the issues. He is to decide whether there is an issue of fact.
   6) Judgment N.O.V. operates just like directed verdict, except it is after verdict.
      Directed verdict must be moved first, but judge will deny and let case go to jury.
      Two reasons why he may wait:
      a) Trial judges don‟t like to stick necks out. If jury comes out same way as
           judge would, judge doesn‟t have to stick neck out. Only if they come out
           other way, then grant J.N.O.V.
      b) Lets jury decide on the issue. If J.N.O.V. gets overruled on appeal, already
           have jury verdict, don‟t have to retry.
   7) Directed verdict is used when it‟s clear a party doesn‟t have enough evidence—
      save time by getting rid of it early.
   8) Big problem with directed verdict is knowing when there‟s enough evidence for a
      case to go to a jury. Juries aren‟t supposed to guess, but there‟s always some
      guessing involving.

B. LAVENDER V. KURN (U.S. SUP. CT., 1946)
   1) Issue: Hook or crook? If decedent was standing on a mind in just the right way,
      he may have been struck by the hook. Evidence that his wallet was found away
      from his person leads defendant to believe that hobos in area may have robbed
      decedent.
   2) State Supreme Court reversed jury decision in favor of plaintiff because jury
      could only have speculated about whether decedent was killed by hook or by
      murder.
   3) U.S. Supreme Court reversed saying jury wouldn‟t be speculating. Says this fits
      the window between directed verdict for defendant and for plaintiff and it must be
      a jury question. Here there is not physical impossibility for the train to hit
      decedent.
      a) Some say that Justice Murphy was using the scintilla rule, where if there is
          anything supporting the plaintiff‟s claim, issue must go the jury. Deferential
          to jury.


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       b) Most federal courts use “substantial evidence” test that requires that non-
          movant have substantial evidence such that a reasonable jury could find for it.
          (Big question as to whether Lavender met substantial evidence test). This is
          not very deferential to jury.
       c) Possible that court made its decision that Lavender‟s action was taken until
          the pro-plaintiff FELA statute, thus should protect plaintiff‟s ability to get the
          case to a jury. Many courts have limited Lavender decision (scintilla rule
          analysis) to pro plaintiff statutes.

C. GOOD CONFUSION ABOUT SCINTILLA AND SUBSTANTIAL EVIDENCE
   RULE HYPOS
   1) Questions to ask in a summary judgment or directed verdict situation
      a) Could a reasonable jury find for the nonmovant?
      b) Using substantial evidence test and scintilla rule.
   2) Hypo 1: Rainy, foggy night, someone saw driver speeding 5 miles north driving at
      excessive speed. Give miles later, accident, everyone killed, car is totaled. Estate
      sues defendant‟s estate for negligence. Only evidence is that car ends up on other
      side of road, plus witness who saw car 5 miles earlier. Defendant moves for
      directed verdict.
      a) Scintilla rule: Allow this case to get to jury. Jury could reasonably go from
          point A to point B here. There seems an even stronger case here than in
          Lavender.
      b) Substantial evidence: Good confusion about how much more would be
          required to get to jury. Real case in MS with these facts won on directed
          verdict.
   3) Hypo 2: Scar from piece of broken glass. Skin cancer develops 5 years later. 1 in
      100 chance of this occurring.
      a) Scintilla rule: Allow this case to get to jury. Even stronger than Lavender and
          Hypo 1 because there is medical exam testimony plus scar is in shape of
          cancer.
      b) Substantial evidence: In the actual case directed verdict was granted. Redish
          thinks there is enough here for a reasonable juror to find for non-movant.

D. GUENTHER V. ARMSTRONG RUBBER CO. (3RD CIR., 1969)
   1) Fact Summary: Plaintiff suing for injuries sustained due to negligently
      manufactured tire. Didn‟t know what kind of tire it was, but sued Armstrong
      because 75-80% of tires sold where plaintiff bought his tires were made by
      Armstrong.
   2) Plaintiff must show by preponderance of the evidence that it was defendant‟s tire.
   3) 75-80% tells you nothing about the individual tire. Court says jury would only be
      guessing. Redish agrees, but says that if you had statistics for individual tire,
      plaintiff would get directed verdict, so where‟s the window? If we allow in cases
      like Lavender or conceivably in the scar case, why not here? Seems difference is
      that those cases show there is a chance of something specifically occurring,
      whereas here is just general statistical possibility.



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     4) Agent Orange cases at cutting edge of procedure and tort. In individual cases, the
        general statistics don‟t have an effect, but if there is a mass tort case and general
        statistics say some many people will be affected, it is hard not to grant recovery,
        because some in the group would be affected. Judge Weinstein reduces
        settlement on basis that statistics don‟t support it. An offshoot of this is damage
        provisions in mass tort claims where randomly selected people‟s claims are
        litigated and damages then extrapolated to all claimants. Related is Rosenburg‟s
        theory of setting up fund to reimburse percentage of population with various
        diseases and distribute money to all affected.
     5) Difference between these cases and Summers v. Dice and Sindell
        a) Summers: 3 guys hunting negligently. One gets shot. If plaintiff has burden
             of production case will never get to jury, so shift burden to defendants to
             prove they didn‟t do it.
        b) Sindell: Class action on hazardous drug. Plaintiff can‟t find identity of
             defendant that made hazardous drug, so shift burden to defendants to show
             they didn‟t produce.
        c) Agent Orange: Burden remains on plaintiffs here. Weinstein‟s decision is
             based on fact that plaintiffs could not epistemologically prove the link
             between Agent Orange and their physical condition.



Rule 50. Judgment as a Matter of Law in Actions Tried by Jury; Alternative Motion for New Trial; Conditional Rulings

 (a) Judgment as a Matter of Law.
   (1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for
judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.
   (2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall
specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.




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V. JURISDICTION

A. PENNOYER V. NEFF (1877)—TOTAL CONTROL W/IN NO CONTROL W/O
   1) Fact Summary: Mitchell brought suit in Oregon against Neff (P) for legal fees.
      Neff, nonresident served by publication, and Mitchell obtained default judgment
      b/c Neff does not show up. Neff obtains property in Oregon that is sold at auction
      to satisfy judgment. Pennoyer (D) purchased property. Neff files suit in Oregon
      for return of property. Neff (P) alleged that court had never acquired in personam
      jurisdiction over him.
   2) Point of Pennoyer: State must have:
      a) Notice: Where object of action is to determine the personal rights and
          obligations of the parties, service by publication against nonresidents is
          ineffective to confer jurisdiction on the court.
      b) Power: Control of everything within the state. No control of anything without
          the state.
   3) Analysis
      a) If Neff‟s land was owned at time of suit and had been attached to the suit,
          there would have been grounds for quasi-in-rem jurisdiction. ISSUE: did
          not attach land, therefore no QIR juris. Never had in personam
          jurisdiction.
      b) Holmes: Essence of jurisdiction is physical power.
      c) Court grounds decision in due process laws, but no real basis for this.
          Due process inquiries: (1) substantive—power of court to exert
          jurisdiction and (2) procedural—notice and opportunity to be heard. DP
          should be requirement for fair procedure for citizens. Justice Field derives
          postulates governing jurisdiction from international public law (French and
          Dutch scholars). What they really are discussing is state‟s powers (control
          rule above) and full faith and credit clause of Constitution: “Full faith and
          credit of each state‟s judicial acts and proceedings.”
      d) When it is feasible that more than one state could exercise jurisdiction, the
          judgment from the first one that does is binding and all others must recognize
          its validity (full faith and credit) (see McGee).
      e) Redish has problems with Field‟s analysis. He prefers a focus on the
          individual citizen and their relationship to government, analyzing what is
          procedurally fair and is not.
      f) Exceptions to Field‟s power theory:
          i)       Marriage: 1) intangible res stays in the state; 2) that state can
                   determine status, valid marriage, divorce, etc.
          ii)      Partnerships: If chartered in state, the res stays in that state.
      g) SC struggles to get of out the second principle of Pennoyer, but never touches
          first principle.
      h) “Positivism” and “formalism”
          i)       p—determining the good…what is morally correct. Look to who has
                   the power and see if decision came from one with power.
          iii)     f—concerned with legal contraptions for their sake. STRONG &
                   EASY RULES.


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       j) post-P all cases are of con law—Due Process (see full faith and credit clause)


       Power theory incoherent at its core. J. Field asking wrong questions.
Interstate sov. questions found no where in Due Process clause or general scheme of
Cons. Complete non sequitor from Constitutional grounding.

B. IN PERSONAM V. IN REM
   1) In personam
      a) In Pennoyer, court rules that “A court can enter a valid judgment in personam
          only, when jurisdiction has been obtained by personal service of process in the
          state, although it does not mater that the defendant was in the state only
          briefly.”
      b) Consequences
          i)       Neff not served in Mitchell‟s case against.
          ii)      Grace v. MacArthur: reductio ad absurdum, passenger on flight from
                   Memphis to Dallas served over Pine Bluff, AK.
          iii)     Grace is a case of “transient jurisdiction” with service while defendant
                   in state, even for a short period.
          iv)      Ehrenzweig argues that pre-Pennoyer, services neither essential nor
                   sufficient to jurisdiction, only concern was convenience and
                   submission of defendant to power of state. Grace shows that the latter
                   is no longer a concern, put is personal service, by itself, sufficient for
                   jurisdiction.
   2) In rem
      a) In cases of in rem jurisdiction, the physical presence of the property within the
          state vests the state with jurisdiction to adjudicate the rights of any
          individual—whether in the state or not—in that property. Adjudicate rights of
          anyone around world, but only in relation to rights in that particular property.
      b) “Pure” in rem
          i)       State seeks to bind rights of whole world in a piece of property in the
                   state‟s borders. Do this to preserve uninhibited alienability of
                   property.
      c) In the nature of rem (sometimes inadvertently called quasi in rem)
          i)       State seeks to bind merely rights in a particular piece of property, only
                   as to specifically named individuals.
          ii)      As a result, suit can be in personam (to determine control of
                   defendant‟s personal rights in property) or in nature of rem (to
                   adjudicate rights in property located in state).
          iii)     Practical result: From plaintiff‟s perspective, characterization would be
                   different:
                   If property in state but defendant not subject to service, then in the
                   nature of rem.
                   If property was beyond state‟s borders, but defendant was subject to
                   service of process, then in personam.
      d) Quasi in rem


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           i)      Action is purely in personam, substance of case has nothing to do with
                   property. However, state lacks authority to assert in personam
                   jurisdiction over defendant. As a result, plaintiff allowed to assert
                   jurisdiction over defendants property within the state by attaching
                   garnishment, or other process available at the beginning of the suit to
                   allow seizure of property to secure claim—only to limit of value of
                   property.
           ii)     Example: A from IL sues B from NY for $50,000 for personal services
                   contract. B is not subject to in personam jurisdiction in Illinois, but
                   owns piece of property worth $25,000 in IL. This is attached and if
                   won, then A can sue B in another jurisdiction for remaining amount.
                   (Why not use diversity jurisdiction here?).
           iii)    “Limited appearance” of defendant is allowed in such cases, i.e. to
                   appear to defend suit up to the value of property without implicitly
                   consenting by presence to full in personam jurisdiction.

C. SPECIAL APPEARANCE AND LIMITED APPEARANCE
   1) Special Appearance (Now unnecessary because of 12(b)(2) motion): Appearance
      to contest court‟s jurisdiction as long as nothing is said about merits of case, in
      which case in personam jurisdiction may be used.
      a) BIG DILEMMA: if lose at SA, you can wait to challenge juris. on appeal, but
          can‟t argue on merits, b/c that would be submission to PJ. So…default would
          be entered in first state, and if you lose on jurisdiction in 2nd state, you‟ve lost
          case w/o arguing merits.
   2) Limited Appearance: Appearance in quasi in rem case where  allowed to argue
      on merits without submitting to personal jurisdiction up to limits of amount of
      property in question. (No longer needed after Shaffer: Court either has full
      jurisdiction or none at all.)

D. HARRIS V. BALK (1905)—DEBT FOLLOWS DEBTOR…MOST EXTREME
   VERSION OF POWER THEORY…TRANSIENT RULE
   1) Fact Summary: Harris (D), a North Carolina resident, owed $180 to Balk (P),
      another North Carolina resident. While Harris was in Maryland temporarily,
      Epstein brought suit to recover $300 which Balk owed him, attaching the $180
      which Harris owed Balk. Epstein recovered the $180, still having the opportunity
      to obtain other $120. Balk took action against Harris to recover the $180. Court
      held for Harris.
   2) Point of Harris: Debt accompanies debtor wherever he goes, being seen as
      property that can confer in rem and quasi in rem jurisdiction. Extends QIR to
      movable property.
   3) Very unfair to creditor
      a) He can be hailed into court wherever his debt goes.
      b) That includes states with which he has no connection.
   4) NO LONGER GOOD LAW. Court overrules Harris in 1977 with Shaffer.
      Although debt following debtor is gone, having a bank account in a state may
      give jurisdiction.


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   5) Today, expansion of in personam jurisdiction, so less use of quasi in rem.

E. FACTORS GOVERNING CHOICE OF JURISDICTION
   1) Ease of procedure
   2) Substantive types of law in certain states beneficial.
   3) State courts more sympathetic to residents.
   4) Example: This is why Epstein waits for Harris to get to Maryland rather than sue
      Balk in North Carolina, which he also has the power to do.

F. HESS V. PAWLOSKI (1927)
   1) Fact Summary: MA statute provides that nonresident motorists were deemed to
      have appointed a state official as their agent for service of process in cases
      growing out of accidents or collisions involving them. Pawloski (P) sues Hess
      (D), a nonresident, for damages due to auto accident. Hess claims that statute is a
      violation of due process. Supreme Court finds for Pawloski.
   2) Point of Hess: In advance of a nonresident‟s use of its highways, a state may
      require the nonresident to appoint one of the state‟s officials as his agent on whom
      process may be served in proceedings growing out of such highway use. Non-
      resident consents to jurisdiction by driving through state.
   3) Analysis—Under PT, no redress W/O.
      a) Rationale: Inherent danger of automobile use justifies this implied consent
          because states have interest in protection from out of state drivers.
      b) Try to get around physical power of Pennoyer, but still tied to Pennoyer,
          using legal fiction of consent to get around it, as exception to procedural due
          process.
      c) The cat is on the roof.
   4) Redish objects: Under Privileges and Immunities of 14th A. state could not
      discriminate against out-of-state drivers. They enjoy same P&I as in-state drivers.

G. JURISDICTION OVER CORPORATIONS AT THIS TIME (PRE IS)
   1) Generally a corporation would be under a state‟s jurisdiction either by:
      a) Implied consent
      b) “Presence”—analogous to person‟s physical presence rationale under transient
          jurisdiction.
   2) Test for both was “doing business.”
   3) Gradually “doing business” replaced fictions of consent and presence.
      a) Doing business was supposed to be a quantitative determination, look to how
          business is done there.
      b) Random, sporadic deals were not enough to equal doing business, had to be
          continuous and systematic (Cardozo test—Tauza v. Susquehanna)
   4) Suit didn‟t have to have anything to do with the business being done there; doing
      business established in personam jurisdiction over all matters.
   5) Registering to do business in state, regardless of actual business activity, implies
      consent to state‟s jurisdiction.




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H. INTERNATIONAL SHOE CO. V. WASHINGTON (1945)—MINIMUM
   CONTACTS (reasonableness and fairness)
   1) Fact Summary: IS (D) had not made unemployment contributions for its
      employees in violation of a state statute. IS was a nonresident corporation,
      incorporated in DE with its principle place of business in MO. IS had 11-13
      salespersons in WA who resided there but did not have authority to enter
      contracts or make collections. IS had no office in WA or any contracts there.
      Court holds that IS, is subject to in personam jurisdiction.
   2) Point of IS: For a state to subject a nonresident defendant to in personam
      jurisdiction, due process requires that he have certain minimum contacts with it to
      make it reasonable and just that the maintenance of the suit does not offend
      traditional notions of fair play and substantial justice.
   3) Analysis
      a) Court moves away from old Pennoyer PT to fair play and substantial justice,
          laying groundwork for substantive changes, at least with second element of
          Pennoyer. If MC then jurisdiction…implicitly saying: If not MC then no
          jurisdiction.
      b) Establishes “minimum contacts” standard
          i)      Look to notions of “fair play” and “substantial justice” in addition to
                  amount of business done—anathema to PT.
          ii)     Look to convenience factors
                  aa) Where are witnesses, evidence, parties, etc.?
                  bb) Making considerations of forum nonconveniens, due process.
          iii)    Still considers amount of business, but to see how much company has
                  derived benefit from the state—not quantitative but qualitative.
      c) Single act: Under “minimum contacts,” it may be that the cause of action
          arises out of a single act. That would never be enough to satisfy jurisdiction
          under old “doing business” standard. Note that court cites Hess as example of
          a single act. Pre-IS: soliciting not enough. IS rubbing court doctrine in its
          face.
      d) New standard looked to:
          i)      Connection between suit and corporation‟s in-state activity.
          ii)     State interest in providing a forum to plaintiff.
          iii)    Procedural burdens and inconvenience to defendant.
      e) Note that in the majority opinion uses previous test of “doing business”—
          “continuous and systematic”—which is not what minimum contacts is based
          upon.
      f) Redish view: opinion is dressed-up sovereignty. Not kind of break DP
          requires. We can‟t allow another to apply jurisdiction if litigating in one area
          would be just as convenient as another.




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I. MULLANE V. CENTRAL HANOVER BANK (1950)—CENTER OF
   GRAVITY
   1) Transitionary period
                    ___________
                  _/McGee        \
               _/Mullane           \
             _/IS                    \
           _/Pennoyer                  \Hanson
   2) This is primarily a notice case and here notice by publication ruled insufficient.
      Notice should be sent across state lines.
   3) Court does uphold jurisdiction in New York claiming that since this is a case of
      common trust fund with beneficiaries across country, but all trusts in New York,
      New York is focal point and has interest. State‟s interest in administering its laws
      may be so insistent and rooted in custom as to establish beyond doubt the right of
      its courts to determine the interests of all claimants provided they‟re provided
      with fully opportunity to appear and be heard. J. Jackson throws out arguments of
      in personam (P‟s on basis of negligence) and in rem (D‟s on basis of property)
      and says that common trust fund is good idea, need to have an accounting to move
      on, and NY has most contacts, thus it is only state that can assert jurisdiction.
   4) Court no longer recognize difference between in rem and in personam in
      determining juris.—only look to question of state interest.
   5) See this case as moving up ladder from IS, along with McGee. Redish approves
      because it clarifies the contacts analysis. Move to forum conveniens, center of
      gravity, focal point of case—wherever center of gravity, case should be heard—
      Ehrenzweig analysis.
   6) Redish approves because it moves to state with:
      a) strongest interest
      b) most parties
      c) most evidence
      d) consequences have biggest effect

J. McGEE V. INTERNATIONAL LIFE INSURANCE CO. (1957)—HEIGHT OF
   STATE INTEREST STANDARD.
   1) Fact Summary: McGee (P) was the beneficiary of a life insurance policy for her
      son, CA resident. He had purchased policy by mail from International Life (D),
      which had solicited in CA, and he was the only CA policyholder. McGee (P)
      obtained a judgment for the proceeds in CA that she attempted to enforce in TX.
      TX claimed that CA did not have jurisdiction. Supreme Court finds for McGee.
      TX has to give full faith and credit.
   2) Point of McGee: Due process requires only that in order to subject a nonresident
      defendant to the personal jurisdiction of the forum, he have certain minimum
      contacts with the forum and that the maintenance of the suit does not offend
      traditional notions of fair play and substantial justice.
   3) Analysis
      a) By soliciting in CA, International Life passes minimum contacts test. This is
          lowest standard for jurisdiction. One contact is enough. Under old “doing


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         business” test—systematic and continuous—mother would have lost…but she
         doesn‟t here.
      b) McGee represents farthest extension of minimum contacts doctrine.
      c) If insured had taken policy out in Texas and moved to CA, where he was sole
         policyholder, the Forseeability argument present in McGee would be diluted
         (see Hanson v. Denckla).
   4) Analyzing McGee from three parts of minimum contacts test
      a) Defendant‟s pre-litigation contact with state: Getting benefits from CA
         resident.
      b) State interest in providing a forum: State has strong interest in insurance
         issues as they affect residents.
      c) Balance of inconveniences: Communication, transportation has developed.
         Burden on Texas corporation not as great as one McGee.
   5) Applying MC standard, Court considers:
      a) ‟s pre-lit contacts with state.
      b) State interest in providing forum
      c) Balance of inconveniences of parties
      d) Whether  could be considered “on notice” of suit in jurisdiction.
   6) When dust settles after McGee
      a) High water point of socially policy orientated reasonableness test. Gets away
         from doing business, continuous and systematic test.
      b) Don‟t bother with old concepts of in rem, quasi in rem, in personam. If it is
         reasonable, fair, does state have interest?
      c) In McGee, get far away from old standards. State interest, little burden arising
         out of activity in state means that jurisdiction can arise from one shot deal.


BREAKING AWAY FROM RIGID FORMALISM OF POWER THEORY AND
LOOKING TOWARDS CONCERNS OF REASONABLENESS & BENEFITS,
CONVENIENCE, AND STATE INTEREST.


K. HANSON V. DENKLA (1958)—PURPOSEFUL AVAILMENT
   1) Warren said state interests (forum conveniens) don‟t apply—ignore decision in
      McGee—essentially twisting jurisdiction law to prevent bad sisters from
      winning—returning to in rem/in personam PT distinctions—turns to PA, citing its
      absence here and presence in McGee.
   2) “Very hard cases make very bad law.”
   3) Woman sets up trust in Delaware and then moves to Florida. Daughters want to
      prove trust is not valid, but need to obtain jurisdiction over trust company.
   4) Court holds that jurisdiction in Florida is not present because trustee did not
      perform any acts in Florida that bear similar relationship to agreement as the
      solicitation in McGee, thus no purposeful availment because no voluntary
      affiliation. Redish doesn‟t see this distinction since Wilmington Trust benefits
      from woman in Florida.



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   5) Redish argues Mullane analysis should be used with Florida as the forum
       conveniens, but Supreme Court goes back to old in rem and in personam
       categories, claiming that Delaware has in rem jurisdiction.
   6) Court argues that Florida law may be applied in Delaware, but to Redish this
       doesn‟t make sense. It should not be easier to assert body of law in another state
       than to win jurisdiction in your own state. Redish argues that jurisdiction should
       be easier to obtain and then decide which state law should apply.
   7) Developments of Mullane, McGee come down with a THUD.
   8) Court kicks Mullane upstairs, example of “jurisdiction by necessity”: if not NY,
       then nobody.
   9) Court does not overrule McGee, but seems to want to get away from forum
       conveniens approach, to quiet any leanings of unimportance of state boundaries.
   10) This is the start of purposeful availment.


L. AS THE DUST SETTLES
   1) Court gropes toward standard of what minimum contacts should be after IS.
      Three elements with one becoming preeminent.
      a) Defendant‟s pre-trial contacts with forum state. This takes on form of
          purposeful availment, which Hanson holds up as the preeminent element.
      b) State interest.
      c) Inconvenience to defendant.
   2) State long-arm statutes develop
      a) Cal.: state may exercise juris. on any basis not inconsistent with Due Process.
      b) Ill: any person submits to jurisdiction if:
            1. transaction of business within state
            2. commission of tortious action within state
            3. ownership/possession of any real estate in the state
            4. contracting to insure any person, property or risk located within state at
                time of contracting.

M. GRAY V. AMERICAN RADIATOR (ILL. 1961)—STREAM OF COMMERCE
   1) Fact Summary: Gray (P) a resident of Illinois, alleged that Titan‟s (D), an Ohio
      corporation, negligent construction of a valve, which it sold to American (D),
      which incorporated the valve into a water heater, caused an explosion that injured
      her.
   2) Point of Gray: Whether a nonresident activity within a state is adequate to subject
      it to jurisdiction of that state depends upon the facts of each case, and the relevant
      inquiry is whether the defendant engaged in some act or conduct by which he
      invoked the benefits and protections of the forum. State is justified in asserting
      juris. over manufacturer, despite no minimum contacts, if manu. has inserted
      products into stream of commerce—thereby knowing it was invoking benefits and
      protections of forum state.
   3) Analysis
      a) This is preview of specific jurisdiction.



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       b) Titan is liable on the basis of stream of commerce theory. It placed its valve
          in a stream of commerce, knowing that American Radiator did business in
          Illinois and that the valve foreseeably could wind up in a radiator sold there.
       c) This is an example of long-arm statutes passed by states to provide local
          forum for local plaintiffs to bring claims on locally generated causes of action.
       d) Note that this is different from McGee, but still jurisdiction. Titan argues that
          there is solicitation in McGee that does not occur here, but court says that
          Titan derives indirect benefit that is similar to direct benefit in McGee. There
          is a quid pro quo in Gray that exists in McGee and in IS.
       e) Note also that there is no purposeful availment, but Illinois Supreme Court
          could care less, stream of commerce approach puts manufacturer on notice
          that it can be sued anywhere.

"In one of the modern quartet of decisions, Schaffer v.Heitner, the Court made a
significant contribution to the evolution of personal jurisdiction theory by removing
longstanding metaphysical barriers between in personum and in rem jurisdiction."

"The Court there held that all forms of judicial jurisdiction must be measured by the
tenants of "minimum contacts" test. In so doing, the Court largely abandoned the artificial
and conseptual distinctions between in personum, in rem and quasi in rem jurisdiction."



N. SHAFFER V. HEITNER (1977)—NO MORE QIR (OR IN REM)—ONLY
   CASE SINCE PENNOYER TO DEAL WITH RULE #1—TOTAL CONTROL
   W/IN.
   1) Fact Summary: Heitner (P) brought a derivative suit against Greyhound (D)
      directors for antitrust losses it had sustained in Oregon. The suit was brought in
      Delaware, Greyhound‟s (D) state of incorporation.
   2) Point of Shaffer: Jurisdiction cannot be founded on property within a state unless
      there are sufficient contacts within the meaning of the test developed in
      International Shoe.
   3) Analysis—“We therefore conclude that all assertions of state court
      jurisdiction must be evaluated according to the standards set forth in IS and
      its progeny.”
      a) Suit is against directors and since neither site of wrong or residence of
          defendants is in Delaware, court believes there is no basis for jurisdiction.
          Only basis is on fact that the directors‟ stock is based in state of incorporation,
          which is Delaware (D only state to say that situs of stock is state of
          incorporation), which would allow quasi in rem jurisdiction, but court
          considers this analysis outdated. Post-IS only time QIR would be necessary
          would be when juris. is not proper…lack of MC  unfair.
      b) Quasi in rem jurisdiction is dead. (But some judges keep alive, example: New
          York where due process would allow assertion of jurisdiction but “gaps” in
          long-arm statutes precluded that.) Court got rid of in rem part of Penn Rule
          #1 and assumed that in personam was gone also, but it was not.—transient
          rule.
      c) Court says that all assertions of state control must be evaluated according to
          the standards of IS and subsequent cases. Everything is minimum contacts

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            (but is it? (e.g. tag jurisdiction))! Thus, while quasi in rem is dead, permanent
            property will be strong factor, not because of state‟s power over individual,
            but because of its demonstration of minimum contacts.
       d)   Redish likes result but not the reasoning: Marshall argues that court has gotten
            rid of in personam jurisdiction, but this is wrong because it still exists in tag
            jurisdiction. Instead, court has gotten rid of second rule of Pennoyer: states
            have no control without the state. Subsequent decisions demonstrate control
            of corporations, individuals outside of state. Shaffer decision seems to
            indicate that in personam will also follow same minimum contacts rule.
            While it does in terms of property, it does not in terms of the person. Tag
            jurisdiction is still good law, even if no other contact than passing through
            state. Thus, while the directors‟ property was not enough of a minimum
            contact to grant jurisdiction, if they flew across Delaware and were served that
            would be enough.
       e)   Redish thinks that having stock in Delaware is purposeful availment, but court
            wants to prevent strike suit by stockholder, so holds there is no jurisdiction
            because no purposeful availment.
       f)   Tough question after Shaffer: Is summer home enough property to constitute
            minimum contact (purposeful availment) in state to grant jurisdiction over
            individual resident of other state? Bank account seems to be enough, but
            courts take different approach. One N.Y. court used bank account to grant
            quasi-in-rem jurisdiction over foreign airline.
       g)   Delaware later passes state statute that would enforce jurisdiction on basis of
            stock present in state on basis of directors consenting to suit there on claims of
            malfeasance in that position.

Pre—Volkswagen all you had to do was meet certain level of (1) P/A, (2) state
interest and (3) balance of conveniences. Other strong concerns could make up for
weakness in PA. Now, with Volkswagen, nothing matters without PA.


O. WORLD-WIDE VOLKSWAGON CORP. V. WOODSON (1980)—
   PA=NECESSARY
   1) Fact Summary: The Robinsons bought a new Audi in New York from Seaway
      and while traveling in Oklahoma were involved in a crash allegedly aggravated by
      Audi‟s negligent placement of the gas tank. The state district court asserted
      personal jurisdiction over Seaway and World-Wide, another New York based
      dealer. Oklahoma Supreme Court affirmed. Supreme Court reverses.
   2) Point of World-Wide: The sale of an automobile by a corporate defendant is not a
      sufficient purposeful availment of the benefits and protections of the laws of a
      state where the automobile is fortuitously driven there so as to constitute the
      requisite “minimum contacts” with that state for personal jurisdiction purposes.
   3) Analysis—“DP acting as instrument of interstate federalism” J. White.
      a) This decision sets up purposeful availment as the test for minimum contacts.
          Court says that dealer putting car into stream of commerce is not enough, even
          being able to foresee car will get to Oklahoma is not enough. White


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            distinguishes from Gray in that product here arrived in state through actions of
            consumer not through actions of distributor
       b)   Purposeful availment: If a party purposely avails himself of the privilege of
            conducting business within a state, he is subject to jurisdiction in that state.
            Court saying they don‟t care where balance of interests lie nor what‟s in the
            state‟s best interest. If no PA, then no jurisdiction.
       c)   This standard (quid pro quo theory) is not new, but here a huge, new emphasis
            is put on it. It used to be one factor, now is a necessary condition, but it is not
            true that purposeful availment=jurisdiction.
       d)   White argues forseeability—F of product ending up in juris. is not enough.
            ‟s conduct and connection with forum state must be enough to establish that
            he reasonably anticipates be haled into court there.
       e)   Court was reaffirming notion of interstate sovereignty…federalism trumping
            all other concerns…rather the IS notions of fairness. Why? In dissent,
            Marshall objects, claiming V is same as Gray…Stream of commerce should
            be enough…cars are mobile.
       f)   Redish believes that although court attempts to distinguish Volkswagon from
            Gray by saying that Forseeability was greater in Gray (Titan knew that
            distributor sold in Illinois, whereas in Volkswagon, consumer unilaterally
            takes product out of state), it is nearly impossible to do, both are really stream
            of commerce.
       g)   Note that Audi and Volkswagon of America were also part of the original suit.
            They would have been subject to suit in Oklahoma, but could have removed to
            federal court on grounds of diversity (irrebutable right). Robinsons‟ lawyer
            did not want that so he added the two New York defendants (minimal
            diversity—no right of removal). Audi and Volkswagon underwrote costs of
            their appeals so that case would be removed to federal court, where jury found
            for defendants.
       h)   Volkswagon (White) with three factors that came out of IS
            i)      Defendant‟s pre-trial contacts with forum state (purposeful availment):
                    No. This is enough for Supreme Court to say no jurisdiction even
                    though other two are in the affirmative.
            ii)     State interest: Yes, Oklahoma roads, hospitals, people may be injured.
            iii)    Procedural Convenience: Yes, all evidence and witnesses in
                    Oklahoma.
       i)   White: Gray stream of commerce is still good law, however—unilateral
            transportation to 3rd state not enough, but shipment to be 3rd state is enough.
       j)   Court goes back to reinforcing interstate sovereignty as a key to due process,
            but Redish asks, “What does state sovereignty have to do with due process?”
            Due process has nothing to do with interstate federalism. Redish has problem
            with the 1) theory, thus sees the 2) doctrine as mangled.

P. INSURANCE CORP. OF IRELAND v. COMPAIGNE DES BAUXITES DE
   GUINEE (1982)
   1) Fact Summary: A district court held jurisdiction to exist over nonresident
      corporations when they failed to comply with discovery orders.


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   2) Point of Insurance Corp. of Ireland: A court may declare jurisdiction as a
      sanction for failure to comply with discovery.
   3) Analysis
      a) No, no…I meant it to be individual liberty instead of interstate federalism in
         Volkswagen
      b) When a defendant specially appears in an action contesting jurisdiction, it is
         bound to follow all court orders until the jurisdiction issue is settled. Refusal
         to do so can constitute a waiver of jurisdictional objections.
      c) Court argues that this is an example of liberty/due process in a jurisdictional
         matter, not interstate federalism, but purposeful availment comes out of
         interstate federalism, not liberty/due process idea. White concedes he is
         wrong on theory, but doesn‟t do anything about doctrine.

Q. CALDER V. JONES (1984)—INTENTIONAL TORT FOCAL POINT TEST
   1) Fact Summary: In a defamation action, CA state court asserted jurisdiction over
      out-of-state authors from FL, who had not visited state nor had substantial
      presence there.
   2) Point of Calder: Publication of a defamatory article in a state may create
      jurisdiction over the authors thereof.
   3) Analysis—creates intentional tort exception to PA focal point analysis.
      a) Special case for intentional torts: Focal point analysis is used (same analysis
          that court decided it wouldn‟t use in Hanson). California is focal point for
          case because knowingly hurt someone in forum state. Seems a strange
          aberration case because courts don‟t use this analysis again. Only way to
          reconcile is to say that it is special case for intentional torts.
      b) Nontranssubstantive exception to personal jurisdiction for intentional
          tort based on focal point analysis.
      c) Redish says court could have said that writers knew that the newspaper was
          selling lots of copies in California, thus they got benefits and purposefully
          availed themselves, but instead court uses focal point analysis. Why? Court
          doesn‟t want to use this in individual cases because it opens up all sorts of
          people to jurisdiction. Example: Don‟t want to get the welder who was
          involved in manufacturing the Titan radiator. This protects him.
      d) Court seems to want to set up system so state can provide forum for its
          resident who is injured there. This may relate to issue of Internet jurisdiction.
          State wanted to protect its citizens then makes purposeful availment
          irrelevant. Redish says, “Good. It was wrong to adopt purposeful availment
          in the first place.”
      e) Other courts have interpreted this decision as relating only to intentional tort
          cases, but mere fact resident of state is injured is usually not enough, has to be
          something more.
      f) This sets up rule of nontranssubstantivity for 1st Amendment (different set of
          procedure), which gets Rehnquist upset in Anderson.
      g) Publisher, National Enquirer, did not contest jurisdiction since it sold over
          500,000 issues in jurisdiction.



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       k) Jurisdiction upheld in cases with even smaller circulation figures, i.e. Keeton
          v. Hustler Magazine, Inc., where jurisdiction was upheld in New Hampshire
          on basis of circulation of no more than 15,000 issues.



R. HELICOPTEROS NACIONLES DE COLOMBIA V. HALL (1984)—
   GENERAL JURISDICTION
   1) Fact Summary: A Texas state court exercised jurisdiction over Helicopteros in a
      cause of action related to helicopter crash killing Americans in Peru, on the basis
      of its regular purchases in the state, although these purchases were unrelated to
      incident in question.
   2) Point of Helicopteros: Purchases, even at regular intervals, do not subject a
      foreign corporation to general jurisdiction if the purchases are unrelated to the
      cause of action.
   3) Analysis
      a) This is a case of general jurisdiction, in which jurisdiction is not on basis of
           specific actions within the state related to cause of action (specific
           jurisdiction). Test for general jurisdiction remains continuous, substantial
           and systematic contact—old “doing business test.”
      b) Specific jurisdiction is claimed when the cause of action arises out of the
           activities in the state.
      c) General jurisdiction is when cause of action did not arise out of activities in
           the state. General jurisdiction very hard to establish. Must prove systematic
           and continuous contacts with state. Like old tests.
      d) In this case, respondents foolishly concede no specific jurisdiction, tried to
           establish general. Here: 1) contract made with Texas company; 2)
           Helicopteros accepted checks from Houston bank; 3) Helicopters were bought
           in Texas; 4) Pilots were trained in Texas. But suit would have had to say that
           negligence in training or in the helicopters that came from Texas.
      e) Brennan‟s dissent says that there is middle ground of “related to,” thus he
           found sufficient contacts to grant juris. and would grant specific jurisdiction
           even if plaintiffs did not ask for it.
      f) Asbestos and Light Bulb Hypo: NY company sells asbestos and light bulbs.
           Sell asbestos only in Tri-State area and light bulbs all over the country. S-O-L
           runs out for NY plaintiff on asbestos in NY. S-O-L doesn‟t run in OK, so sue
           there because they sell light bulbs there. Can do that on basis of general
           jurisdiction. Redish says maybe argue that this is different because of serious
           of asbestos, huge lawsuits, perhaps don‟t want to use general jurisdiction as
           way to get the asbestos maker in Oklahoma when no asbestos business is
           there.
      g) Brilmayer test—if action is the type you‟d expect to see among two residents
           of the same state  specific jurisdiction.

S. BURGER KING CORPORATION V. RUDZEWICZ (1985)—PURPOSEFUL
   AVAILMENT IS NECESSARY AND SUFFICIENT CONDITION


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   1) Fact Summary: Burger King (P) appealed from decision of court of appeals
      finding that the district court erred in asserting personal jurisdiction over
      Rudzewicz (D) without reasonable notice of the prospect of franchise litigation in
      Florida and thus violated due process fairness concerns.
   2) Point of Burger King: Where the circumstances establish a substantial and
      continuing relationship with a forum state and indicate there was fair notice that a
      nonresident might be subject to suit in the forum state, the assertion of personal
      jurisdiction over the nonresident by the forum state, if otherwise fair, does not
      offend due process.
   3) Analysis
      a) Case of purposeful availment. Purposeful availment is not only necessary
          condition, it‟s a sufficient condition for jurisdiction. Court says that franchise
          payments, awareness that this Florida corporation, Florida law resolving
          disputes all make defendants subject to jurisdiction, even if Rudzewicz
          doesn‟t go there.
      b) Convenience and burden factors can be considered for change of venue, but
          they don‟t really affect whether state has right to exercise jurisdiction.
      c) Issues of choice of law. Brennan says that since parties agreed to use Florida
          law in resolution of disputes, defendants should have expected to be hailed
          into courts there. Redish asks why not apply Florida law in Michigan? This
          is not fair fight, greater burden on defendants going to Florida, plus Michigan
          is focal point (this is Stevens‟ dissent argument).
      d) Fairness may also play part.  may request change of venue—since this is
          discretionary and unappealable…it‟s not a constitutional issue.
      e) 28 U.S.C. § 1404(a)—change of venue. Court usu. give  choice of venue,
          but if could have been brought in another juris. and that‟s more convenient to
          , the court may transfer.
      f) Problem with contracts. Is mere factor of contracting between person from
          state A to state B enough? Example: Consumer in NY orders something from
          Nieman Marcus in TX, then N-M sues in TX. Courts say this is not enough.
          Burger King is distinguishable because 1) arms length, businessperson‟s deal;
          2) non one-shot, but relational.

T. ASAHI METAL V. SUPERIOR COURT OF CALIFORNIA (1987)—STREAM
   OF COMMERCE PLUS—JUST S of C is not PA
   1) Fact Summary: Zurcher, CA resident, seriously injured in motorcycle accident.
      Zurcher sues Cheng Shin, Taiwanese company, which made motorcycle tire.
      Cheng Shin sought indemnity (through impleader) from Asahi, Japanese
      corporation, which made tire valves and sold to Cheng Shin. Zurcher settled with
      Cheng Shin. Cheng Shin continues action against Asahi. Asahi appeals from
      decision of CA Superior Court allowing jurisdiction. Supreme Court rules no
      jurisdiction.
   2) Point of Asahi:
      a) O‟Connor‟s Opinion: “Stream of commerce plus”—Minimum contacts
          sufficient to sustain jurisdiction are not satisfied simply by the placement of a
          product into the stream of commerce coupled with a “mere awareness” that its


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         product would reach the forum state. There must be some action of
         purposeful availment of the benefits of the state. She used “manifestly unjust”
         to explain why S of C cannot be used to defend juris. This is not binding
         precedent, however, because only a plurality of the court.
      b) Brennan‟s Opinion: State court rightly concluded that stream of commerce
         satisfies minimum contacts and this has been preserved in this decision. Here
         stream of commerce, but fair play and substantial justice prevent allowing
         jurisdiction.
      c) Stevens‟s Opinion: Minimum contacts analysis unnecessary; jurisdiction here
         would be unreasonable and unfair on basis on convenience factors.
   3) Analysis: Where does the dust settle after Asahi?:
      a) Stream of commerce: Is there a theory at all? O‟Connor says no, Brennan
         says yes. Split decision so courts go both ways. At least we have stream of
         commerce plus, some say we still have stream of commerce. Inertia is in
         favor of stream of commerce.
      b) Purposeful availment: Still governing rubric, but why isn‟t stream of
         commerce, purposeful availment? Court seems to indicate it is not.
      c) Court also considers reasonableness of jurisdiction—(1) burden on , (2)
         convenience of gathering evidence and witnesses and (3) state‟s interest in
         providing forum (Ca. resident settled).
      d) Calder: Focal point analysis for intentional torts. Why have special
         jurisdictional rules for intentional torts? What is needed to trigger Calder
         exception? Knowingly hurt someone is forum state.
      e) Procedural burdens: Use sub-constitutional doctrines, such as change of venue
         and choice of law, according to Brennan. O‟Connor uses these as alternate
         basis of jurisdiction beyond stream of commerce in Asahi. Procedural burdens
         not an issue in Burger King, though. Asahi is an exception, showing that
         these burdens are looked at few and far between, but when is that the case?
      f) Severe inconvenience? Is that only a concern when dealing with IR? BK said
         inconvenience is rarely a factor.
      g) Could Asahi be unique because California plaintiff had settled and left suit
         between two foreign corporations?

U. BURNHAM V. SUPERIOR CRT. CAL. (1990)—TRANSIENT RULE IS BACK
   1) Fact Summary: Burnham (NJ resident) personally served with a summons on
      basis of wife‟s divorce petition while visiting San Francisco to see children during
      CA business trip. Burnham contended that California lacked personal jurisdiction
      over him because his only contacts with the state were a few short visits there to
      conduct business and to visit his children.
   2) Point of Burnham: Personal jurisdiction based on physical presence alone does
      not violate due process.
   3) Analysis
      a) Scalia‟s decision keeps alive tag jurisdiction on basis of Pennoyer‟s control of
          all things within the state principle. S says that all cases since IS have dealt
          with absentee ‟s. This is different—uses IS to say that did nothing to Rule 1
          (total control w/in state). Uses IS “traditional notions of fair play and


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            substantial justice” to justify holding, b/c…what could be more fair than
            transient rule?
       b)   Scalia rationalizes “tag rule” on historical ground; Brennan rationalizes on
            PA.
       c)   Troublesome to Redish and others because Pennoyer‟s second principle of no
            control of things outside state was thrown out with IS.
       d)   Brennan‟s concurrence is based on fair play and substantial justice using
            purposeful availment analysis, but this is problematic.
       e)   Nonresident fraudulently enticed to enter a state may defeat such jurisdiction.

V. REDISH’S SOLUTION: “PURE DUE PROCESS”
   1) Reforms Constitutional inquiry, focusing on individual‟s relation to government
      (micro-concerns), not government power over individual and relation to one
      another (macro-concerns) that are derived from Pennoyer.
   2) Pennoyer: States do have power; Redish “Pure due process”: States may have
      power.
   3) Revised structure examines three factors
      a) Degree of inconvenience defendant would suffer in being forced to litigate in
          distant forum.
      b) Degree of inconvenience plaintiff would suffer in being forced to proceed in
          different forum.
      c) State interest in having its own law to resolve controversy.
   4) Revised structure would eliminate two elements of present “minimum contacts”
      structure
      a) Pre-litigation contacts of defendant and forum state.
      b) Defendant‟s awareness of possible suit in that forum.
   5) Example: Somebody from Indiana sues Titan in Chicago on matter relating to
      radiator in Minnesota. Redish would allow this. Procedural burdens minimal.
      Question of what law should be applied.

W. GENERAL JURISDICTION—cause of action does not arise out of activities
   w/in state.
   1) You can always consent to jurisdiction
   2) Pre-IS: “doing business”—implied consent and presence (like tag jurisdiction).
   3) Post-IS: if it arises out of activities w/in state, then there‟s jurisdiction.
   4) Perkins v. Benguet (1952)—Filipino company set up in Ohio during WWII. After
      war, claim brought in Ohio for activities arising out of Philippines. Court held
      that b/c doing substantial business, there‟s jurisdiction.
      a) should be viewed as “jurisdiction by necessity.”  would have no other place
          to litigate b/c of circumstances.
   5) Brillmayer—facts solely regarding jurisdiction point to general jurisdiction.
   Would fact be included in complaint between two residents of same state?




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GENERAL JURISDICTION                                           SPECIFIC JURISDICTION

Doesn‟t arise out of                                           “Arises out of” instate activity
Helicopteros—old “doing business” test—                        “Minimum contacts”—purposeful availment
systematic, substantial and continuous. (same things           standard. It could be “one shot.”
that IS Court told us were mindless).

H court say b/c does not arise out of instate activity,
you need to meet the more stringent standard.
(Brennan dissent—says it‟s a continuum—not
distinct arise out of or not arise out of).
Redish Criticism:

    1.   Dichotomy forgetting beneficial insights of
         IS—not looking for rigid categories—we‟re
         looking for qualitative connections.

Is it reasonable? How available are other forums?
Kind of qualitative calculus provided by IS.

Systematic, substantial, & continuous—over-
inclusive b/c allows state to provide forum when
state has no interest in asserting jurisdiction.




Internet:

Should we take traditional concepts and apply to new developments?

Calder—focal point analysis. Traditional jurisdictional

Courts have really not had idea as to what to do with it:
   1. Internet = purposeful availment (some district courts have held this)—minority view.
   2. Drawn passive/active dichotomy—if just have info on website, but not soliciting anything in
        response, you‟re not purposefully availing yourself. If you are soliciting, then you are purposely
        availing. Or
   3. Internet plus—do something more to focus your inquiry on a specific state.
   4. intentional tort loss.

If Courts haven‟t realized yet that purposeful availment doesn‟t work now, they need to look at current
internet concerns.

How difficult is it to bring  in and consider how much state interest state has in litigating in its
jurisdiction.



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Rule 8—General Rules of Pleading
Rule 9—Special Pleading matters
Rule 11—Sanctions (Representations to Court)
Rule 12—Defenses and Objections


Pre-answer motion—Rule 12(b)
Motion for Judgment on the Pleadings—Rule 12(c)
Summary Judgment—Rule 56
JMOL (DV)
JMOL (JNOV)
Motion for new trial


PA—some sort of conscious choice on behalf of  to avail herself of rights and
protections of law of state.

state interest
Lack of convenience.


DNA of juris? sovereignty or procedural fairness?




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PLEADING

Rule 8—GENERAL PLEADINGS.

Rule 8. General Rules of Pleading

 (a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds
upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no
new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the
alternative or of several different types may be demanded.

 (b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each
claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is
without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall
so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied.
When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall
specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends
in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as
specific denials of designated averments or paragraphs or may generally deny all the averments except such
designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to
controvert all its averments, including averments of the grounds upon which the court's jurisdiction
depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11.

  (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord
and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a
counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the
pleading as if there had been a proper designation.

 (d) Effect of Failure To Deny. Averments in a pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied
or avoided.

 (e) Pleading To Be Concise and Direct; Consistency.
   (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or
motions are required.
   (2) A party may set forth two or more statements of a claim or defense alternately or hypothetically,
either in one count or defense or in separate counts or defenses. When two or more statements are made in
the alternative and one of them if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements. A party may also state as
many separate claims or defenses as the party has regardless of consistency and whether based on legal,
equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.

 (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.




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Rule 12—DEFENSES AND OBJECTIONS

Rule 12. Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment
on the Pleadings

 (a) When Presented.
   (1) Unless a different time is prescribed in a statute of the United States, a defendant shall serve an
answer
    (A) within 20 days after being served with the summons and complaint, or
    (B) if service of the summons has been timely waived on request under Rule 4(d), within 60 days after
the date when the request for waiver was sent, or within 90 days after that date if the defendant was
addressed outside any judicial district of the United States.
   (2) A party served with a pleading stating a cross-claim against that party shall serve an answer thereto
within 20 days after being served. The plaintiff shall serve a reply to a counterclaim in the answer within 20
days after service of the answer, or, if a reply is ordered by the court, within 20 days after service of the
order, unless the order otherwise directs.
   (3) The United States or an officer or agency thereof shall serve an answer to the complaint or to a cross-
claim, or a reply to a counterclaim, within 60 days after the service upon the United States attorney of the
pleading in which the claim is asserted.
   (4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters
these periods of time as follows:
    (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive
pleading shall be served within 10 days after notice of the court's action; or
    (B) if the court grants a motion for a more definite statement, the responsive pleading shall be served
within 10 days after the service of the more definite statement.

  (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which
relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall
be made before pleading if a further pleading is permitted. No defense or objection is waived by being
joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets
forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse
party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the
defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

  (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 (d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule,
whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this
rule shall be heard and determined before trial on application of any party, unless the court orders that the
hearing and determination thereof be deferred until the trial.

 (e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so
vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party
may move for a more definite statement before interposing a responsive pleading. The motion shall point
out the defects complained of and the details desired. If the motion is granted and the order of the court is

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not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court
may strike the pleading to which the motion was directed or make such order as it deems just.

 (f) Motion To Strike. Upon motion made by a party before responding to a pleading or, if no responsive
pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the
pleading upon the party or upon the court's own initiative at any time, the court may order stricken from
any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

 (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it
any other motions herein provided for and then available to the party. If a party makes a motion under this
rule but omits therefrom any defense or objection then available to the party which this rule permits to be
raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted,
except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

 (h) Waiver or Preservation of Certain Defenses.
   (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or
insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in
subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading
or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
   (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a
party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be
made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or
at the trial on the merits.
   (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.



Rule 11—PLEADING SANCTIONS


Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

 (a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of
record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by
the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise
specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An
unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to
the attention of the attorney or party.

  (b) Representations to the Court. By presenting to the court (whether by signing, filing, submitting, or
later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying
that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances,-
   (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation;
   (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of
new law;
   (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;
and
   (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.



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 (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are
responsible for the violation.
   (1) How Initiated.
    (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or
requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as
provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service
of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may
award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in
presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly
responsible for violations committed by its partners, associates, and employees.
    (B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific
conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause
why it has not violated subdivision (b) with respect thereto.
   (2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to
what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.
Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives
of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys'
fees and other expenses incurred as a direct result of the violation.
    (A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision
(b)(2).
    (B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to
show cause before a voluntary dismissal or settlement of the claims made by or against the party which is,
or whose attorneys are, to be sanctioned.
   (3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a
violation of this rule and explain the basis for the sanction imposed.

 (d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and
discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26
through 37.


Rule 9(b)—PLEADING SPECIAL MATTERS--FRAUD


Rule 9. Pleading Special Matters

 (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party
to sue or be sued in a representative capacity or the legal existence of an organized association of persons
that is made a party, except to the extent required to show the jurisdiction of the court. When a party
desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued
or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue
shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge.

 (b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.

 (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is
sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial
of performance or occurrence shall be made specifically and with particularity.


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 (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that
the document was issued or the act done in compliance with law.

  (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it.

 (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place
are material and shall be considered like all other averments of material matter.

 (g) Special Damage. When items of special damage are claimed, they shall be specifically stated.

 (h) Admiralty and Maritime Claims. A pleading or count setting forth a claim for relief within the
admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other
ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of
Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the
claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so
identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by
the principles of Rule 15. The reference in Title 28, U.S.C. Sec. 1292(a)(3), to admiralty cases shall be
construed to mean admiralty and maritime claims within the meaning of this subdivision (h).




Rule 13—COUNTERCLAIM & CROSS-CLAIM

Rule 13. Counterclaim and Cross-Claim

 (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state
the claim if (1) at the time the action was commenced the claim was the subject of another pending action,
or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did
not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any
counterclaim under this Rule 13.

 (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing
party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.




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Rule 15—AMENDED AND SUPPLEMENTAL PLEADINGS
Rule 15. Amended and Supplemental Pleadings

 (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the
action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days
after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in
response to an amended pleading within the time remaining for response to the original pleading or within
10 days after service of the amended pleading, whichever period may be the longer, unless the court
otherwise orders.

  (b) Amendments To Conform to the Evidence. When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even after judgment;
but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a
continuance to enable the objecting party to meet such evidence.

  (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original
pleading when
   (1) relation back is permitted by the law that provides the statute of limitations applicable to the action,
or
   (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, or
   (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the
foregoing provision (2) is satisfied and, within the period provided by Rule 4([j]M) for service of the
summons and complaint, the party to be brought in by amendment (A) has received such notice of the
institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B)
knew or should have known that, but for a mistake concerning the identity of the proper party, the action
would have been brought against the party.
  The delivery or mailing of process to the United States Attorney, or United States Attorney's designee, or
the Attorney General of the United States, or an agency or officer who would have been a proper defendant
if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the
United States or any agency or officer thereof to be brought into the action as a defendant.

  (d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such
terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences
or events which have happened since the date of the pleading sought to be supplemented. Permission may
be granted even though the original pleading is defective in its statement of a claim for relief or defense. If
the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order,
specifying the time therefore.




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DISCOVERY
Rule 26(a)—GENERAL DISCOVERY PROVISIONS


Rule 26. General Provisions Governing Discovery; Duty of Disclosure

  (a) Required Disclosures; Methods to Discover Additional Matter.
   (1) Initial Disclosures. Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a
discover request, provide to other parties:
     (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant
to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information;
     (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession,
custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings;
     (C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as
under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is
based, including materials bearing on the nature and extent of injuries suffered; and
     (D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance
business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment.
  Unless otherwise stipulated or directed by the court, these disclosures shall be made at or within 10 days after the meeting of the
parties under subdivision (f). A party shall make its initial disclosures based on the information then reasonably available to it and is
not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the
sufficiency of another party's disclosures or because another party has not made its disclosures.
   (2) Disclosure of Expert Testimony.
     (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who
may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
     (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or
specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all
opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all
publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a
listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
     (C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from
the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be
ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another
party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these
disclosures when required under subdivision (e)(1).
   (3) Pretrial Disclosures. In addition to the disclosures required in the preceding paragraphs, a party shall provide to other parties the
following information regarding the evidence that it may present at trial other than solely for impeachment purposes:
     (A) the name and if not previously provided, the address and telephone number of each witness, separately identifying those whom
the party expects to present and those whom the party may call if the need arises;
     (B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken
stenographically, a transcript of the pertinent portions of the deposition testimony; and
     (C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party may offer if the need arises.
  Unless otherwise directed by the court, these disclosures shall be made at least 30 days before trial. Within 14 days thereafter, unless
a different time is specified by the court, a party may serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a
deposition designated by another party under subparagraph (B) and (ii) any objection, together with the grounds therefor, that may be
made to the admissibility of materials identified under subparagraph (C). Objections not so disclosed, other than objections under
Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.
   (4) Form of Disclosures; Filing. Unless otherwise directed by order or local rule, all disclosures under paragraphs (1) through (3)
shall be made in writing, signed, served, and promptly filed with the court.
   (5) Methods to Discover Additional Matter. Parties may obtain discovery by one or more of the following methods: depositions
upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon
land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and
requests for admission.




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Rule 26(b)—DISCOVERY SCOPE & LIMITS

Rule 26(b)

  (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of
discovery is as follows:
    (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible
at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
    (2) Limitations. By order or by local rule, the court may alter the limits in these rules on the number of depositions and
interrogatories and may also limit the length of depositions under Rule 30 and the number of requests under Rule 36. The frequency
or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it
determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the
action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking
into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under subdivision (c).
    (4) Trial Preparation; Experts.
     (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report
from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.
     (B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called
as a witness at trial only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on the same subject by other means.
     (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable
fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision
(b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and opinions from the expert.
    (5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim
expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or
protection.

 (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that
the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without
court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition,
the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
   (1) that the disclosure or discovery not be had;
   (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;
   (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
   (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;
   (5) that discovery be conducted with no one present except persons designated by the court;
   (6) that a deposition, after being sealed, be opened only by order of the court;
   (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in
a designated way; and
   (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by
the court.
 If the motion of a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that
any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion.

 (d) Timing and Sequence of Discovery. Except when authorized under these rules or by local rule, order, or agreement of the parties,
a party may not seek discovery from any source before the parties have met and conferred as required by subdivision (f). Unless the
court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery
may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate
to delay any other party's discovery.

 (e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or responded to a
request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include
information thereafter acquired if ordered by the court or in the following circumstances:
   (1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in
some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert



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from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to
information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by
the time the party's disclosures under Rule 26(a)(3) are due.
   (2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for
admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other parties during the discovery process or in writing.
  (f) Meeting of Parties; Planning for Discovery. Except in actions exempted by local rule or when otherwise ordered, the parties
shall, as soon as practicable and in any event at least 14 days before a scheduling conference is held or a scheduling order is due under
Rule 16(b), meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution
of the case, to make or arrange for the disclosures required by subdivision (a)(1), and to develop a proposed discovery plan. The plan
shall indicate the parties' views and proposals concerning:
   (1) what changes should be made in the timing, form, or requirement for disclosures under subdivision (a) or local rule, including a
statement as to when disclosures under subdivision (a)(1) were made or will be made;
   (2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be
conducted in phases or be limited to or focused upon particular issues;
   (3) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other
limitations should be imposed; and
   (4) any other orders that should be entered by the court under subdivision (c) or under Rule 16(b) and (c).
  The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging and being
present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the
court within 10 days after the meeting a written report outlining the plan.

  (g) Signing of Disclosures, Discovery Requests, Responses, and Objections.
    (1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in
the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's
address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and
belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.
    (2) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one
attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the request,
response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that to the best of
the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
     (A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal
of existing law;
     (B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation; and
     (C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the
amount in controversy, and the importance of the issues at stake in the litigation.
  If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the
attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it
until it is signed.
    (3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own
initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or
objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred
because of the violation, including a reasonable attorney's fee.




Rule 30—DEP ORAL EXAMINATION
Rule 30. Depositions Upon Oral Examination

 (a) When Deposition May Be Taken; When Leave Required.
   (1) A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court
except as provided in paragraph (2). The attendance of witnesses may be compelled by subpoena as provided in Rule 45.
   (2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if
the person to be examined is confined in prison or if, without the written stipulation of the parties,
    (A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 31 by the plaintiffs, or by
the defendants, or by third-party defendants;
    (B) the person to be examined already has been deposed in the case; or
    (C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice contains a certification, with
supporting facts, that the person to be examined is expected to leave the United States and be unavailable for examination in this
country unless deposed before that time.

 (b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of
Organization; Deposition by Telephone.
  (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be
examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or



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group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the
materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice.
   (2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court
orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear
the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by
nonstenographic means.
   (3) With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony
in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that
party's expense unless the court otherwise orders.
   (4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28
and shall begin with a statement on the record by the officer that includes (A) the officer's name and business address; (B) the date,
time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and
(E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A)
through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or
attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on
the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript
or recording and the exhibits, or concerning other pertinent matters.
   (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote
electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means is taken in
the district and at the place where the deponent is to answer questions.

  (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of
witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615. The
officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone
acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken
stenographically or recorded by any other method authorized by subdivision (b)(2) of this rule. All objections made at the time of the
examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the
conduct of any party, or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the
examination shall proceed, with the testimony being taken subject to the objections. In lieu of participating in the oral examination,
parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall
transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

  (d) Schedule and Duration; Motion to Terminate or Limit Examination.
   (1) Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.
A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence
directed by the court, or to present a motion under paragraph (3).
   (2) By order or local rule, the court may limit the time permitted for the conduct of a deposition, but shall allow additional time
consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another party impedes or delays
the examination. If the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the
deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees
incurred by any parties as a result thereof.
   (3) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the
action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule
26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action
is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to
make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

 (e) Review by Witness; Changes; Signing. If requested by the deponent or a party before completion of the deposition, the deponent
shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or
recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the
deponent for making them.
 The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append
any changes made by the deponent during the period allowed.

  (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.
    (1) The officer shall certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony
given by the witness. This certificate shall be in writing and accompany the record of the deposition. Unless otherwise ordered by the
court, the officer shall securely seal the deposition in an envelope or package indorsed with the title of the action and marked
'Deposition of [here insert name of witness]' and shall promptly file it with the court in which the action is pending or send it to the
attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction,
tampering, or deterioration. Documents and things produced for inspection during the examination of the witness, shall, upon the
request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except
that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and
annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by
comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to
inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party
may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the
case.


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   (2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken
stenographically or a copy of the recording of any deposition taken by another method. Upon payment of reasonable charges therefor,
the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent.




Rule 31—DEP ON WRITTEN QUESTIONS


Rule 31. Depositions Upon Written Questions

 (a) Serving Questions; Notice.
   (1) A party may take the testimony of any person, including a party, by deposition upon written questions without leave of court
except as provided in paragraph (2). The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45.
   (2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if
the person to be examined is confined in prison or if, without the written stipulation of the parties,
    (A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 30 by the plaintiffs, or by
the defendants, or by third-party defendants;
    (B) the person to be examined has already been deposed in the case; or
    (C) a party seeks to take a deposition before the time specified in Rule 26(d).
   (3) A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the
name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to
identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the
officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation
or a partnership or association or governmental agency in accordance with the provisions of Rule 30(b)(6).
   (4) Within 14 days after the notice and written questions are served, a party may serve cross questions upon all other parties.
Within 7 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 7 days after
being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown
enlarge or shorten the time.

 (b) Officer To Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the
party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c),
(e), and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition,
attaching thereto the copy of the notice and the questions received by the officer.

 (c) Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties.




Rule 32—USE OF DEP IN COURT PROCEEDINGS

Rule 32. Use of Depositions in Court Proceedings

  (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so
far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any
party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of
the following provisions:
   (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness,
or for any other purpose permitted by the Federal Rules of Evidence.
   (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a
person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or
governmental agency which is a party may be used by an adverse party for any purpose.
   (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
     (A) that the witness is dead; or
     (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it
appears that the absence of the witness was procured by the party offering the deposition; or
     (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
     (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
     (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with
due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
  A deposition taken without leave of court pursuant to a notice under Rule 30(a)(2)(C) shall not be used against a party who
demonstrates that, when served with the notice, it was unable through the exercise of diligence to obtain counsel to represent it at the
taking of the deposition; nor shall a deposition be used against a party who, having received less than 11 days notice of a deposition,



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has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be
held or be held at a different time or place and such motion is pending at the time the deposition is held.
   (4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part
which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
   Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action has
been brought in any court of the United States or of any State and another action involving the same subject matter is afterward
brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the
former action may be used in the latter as if originally taken therefor. A deposition previously taken may also be used as permitted by
the Federal Rules of Evidence.

 (b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at
the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying.

  (c) Form of Presentation. Except as otherwise directed by the court, a party offering deposition testimony pursuant to this rule may
offer it in stenographic or nonstenographic form, but, if in nonstenographic form, the party shall also provide the court with a
transcript of the portions so offered. On request of any party in a case tried before a jury, deposition testimony offered other than for
impeachment purposes shall be presented in nonstenographic form, if available, unless the court for good cause orders otherwise.

  (d) Effect of Errors and Irregularities in Depositions.
    (1) As to Notice. All errors and irregularities in the notice
  for taking a deposition are waived unless written objection is
  promptly served upon the party giving the notice.
    (2) As to Disqualification of Officer. Objection to taking a
  deposition because of disqualification of the officer before whom
  it is to be taken is waived unless made before the taking of the
  deposition begins or as soon thereafter as the disqualification
  becomes known or could be discovered with reasonable diligence.
    (3) As to Taking of Deposition.
      (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been
obviated or removed if presented at that time.
      (B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions
or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured
if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
      (C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party
propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the
last questions authorized.
    (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and
31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is,
or with due diligence might have been, ascertained.




Rule 33—INTERROGATORIES

Rule 33. Interrogatories to Parties

 (a) Availability. Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not
exceeding 25 in number including all discrete subparts, to be answered by the party served or, if the party served is a public or private
corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is
available to the party. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule
26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(d).

 (b) Answers and Objections.
   (1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the
objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.
   (2) The answers are to be signed by the person making them, and the objections signed by the attorney making them.
   (3) The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30
days after the service of the interrogatories. A shorter or longer time may be directed by the court or, in the absence of such an order,
agreed to in writing by the parties subject to Rule 29.
   (4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is
waived unless the party's failure to object is excused by the court for good cause shown.
   (5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure
to answer an interrogatory.


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 (c) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1), and the answers
may be used to the extent permitted by the rules of evidence.
 An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion
or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be
answered until after designated discovery has been completed or until a pre-trial conference or other later time.

 (d) Option To Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business
records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business
records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially
the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the
records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall
be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from
which the answer may be ascertained.




Rule 34—DOCUMENT PRODUCTION

Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

 (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone
acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts,
photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which
constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon
whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon
whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property
or any designated object or operation thereon, within the scope of Rule 26(b).

 (b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with
reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the
related acts. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).
 The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or
longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29.
The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested,
unless the request is objected to, in which event the reasons for the objection shall be stated. If objection is made to part of an item or
category, the part shall be specified and inspection permitted of the remaining parts. The party submitting the request may move for
an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure
to permit inspection as requested.
 A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize
and label them to correspond with the categories in the request.

 (c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to submit to an
inspection as provided in Rule 45.




Rule 35—MENTAL AND PHYSICAL EXAMS

Rule 35. Physical and Mental Examinations of Persons

 (a) Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the
custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit
to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's
custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined
and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by
whom it is to be made.

 (b) Report of Examiner.



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   (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the
examination to be made shall deliver to the requesting party a copy of the detailed written report of the examiner setting out the
examiner's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier
examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from
the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition,
unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on
motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to
make a report the court may exclude the examiner's testimony if offered at trial.
   (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party
examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony
of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.
   (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise.
This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance
with the provisions of any other rule.



Rule 37—DISCOVERY SANCTIONS

Rule 37. Failure to Make Disclosure or Cooperate in Discovery: Sanctions

  (a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling disclosure or discovery as follows:
   (1) Appropriate Court. An application for an order to a party shall be made to the court in which the action is pending. An
application for an order to a person who is not a party shall be made to the court in the district where the discovery is being, or is to be,
taken.
   (2) Motion.
     (A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate
sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not
making the disclosure in an effort to secure the disclosure without court action.
     (B) If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to
make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to
permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order
compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or
material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn
the examination before applying for an order.
   (3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure,
answer, or response is to be treated as a failure to disclose, answer, or respond.
   (4) Expenses and Sanctions.
     (A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after
affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney
advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including
attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the
disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially
justified, or that other circumstances make an award of expenses unjust.
     (B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an
opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who
opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the
making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
     (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and
may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties
and persons in a just manner.

  (b) Failure To Comply With Order.
   (1) Sanctions by Court in District Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being
directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that
court.
   (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including
an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in
which the action is pending may make such orders in regard to the failure as are just, and among others the following:
    (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the party obtaining the order;
    (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party
from introducing designated matters in evidence;




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    (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
    (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any
orders except an order to submit to a physical or mental examination;
    (E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination,
such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is
unable to produce such person for examination.
 In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that
the failure was substantially justified or that other circumstances make an award of expenses unjust.

 (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.
   (1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless
such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so
disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose
other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure,
these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and
may include informing the jury of the failure to make the disclosure.
   (2) If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party
requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply
to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable
attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or
(B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the
party might prevail on the matter, or (D) there was other good reason for the failure to admit.

 (d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a
party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a
party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers
or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response
to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on
motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under
subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this
subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to
answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the
court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make
an award of expenses unjust.
 The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless
the party failing to act has a pending motion for a protective order as provided by Rule 26(c).
 ((e) Subpoena of Person in Foreign Country.) (Abrogated Apr. 29, 1980, eff. Aug. 1, 1980)
 ((f) Expenses Against United States.)(Repealed Oct.21,1980, eff.Oct.1, 1981)

 (g) Failure To Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the
development and submission of a proposed discovery plan as required by Rule 26(f), the court may, after opportunity for hearing,
require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.




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SUMMARY JUDGMENT
Rule 56—SUMMARY JUDGMENT

Rule 56. Summary Judgment

 (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at
any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by
the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.

 (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought
may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

 (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse
party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

 (d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and
by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts
are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall
be conducted accordingly.

  (e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other
order as is just.

 (g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented
pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing
them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur,
including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.




MOTION FOR JUDGMENT AS A MATTER OF LAW
Rule 50(a)--JMOL
Rule 50. Judgment as a Matter of Law in Actions Tried by Jury; Alternative Motion for New Trial; Conditional Rulings

 (a) Judgment as a Matter of Law.
   (1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for
judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.
   (2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall
specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.




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EXAM NOTES:




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