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									                                            Civil Procedure Outline
                                              Clermont – Fall 2006

How trial is conducted
   I.      Pleadings
           a. Generally
                  i. Notice pleading – to give courts and adversary fair notice of pleader’s contentions
                          1. As opposed to fact pleading and issue pleading
                  ii. Usually do not have to be sworn (unless special like shareholder derivative
                 iii. Pleadings may be alternative and inconsistent, but must adhere to Rule 11
                          1. either-or, or, if-then
           b. Complaint
                   i. Filing this commences the lawsuit (Rule 3)
                  ii. Rule 8(a) require complaint to have:
                          1. a jurisdictional allegation – affirmative allegation as to SMJ
                          2. shorts and plain statement of the claim
                          3. demand for judgment (usually does not box pleader in)
                  iii. if these three things aren‟t there, usually end up in dismissal w/o prejudice
                 iv. in certain cases, have to give more detail (rules 9(b)(g))
                          1. (b) allegations of fraud or mistake require particulars of circumstances
                          2. (g) special damages must be pleaded in specificity
                                 a. That which does not normally flow from the event
                  v. Conley v. Gibson
           c. Motion to Dismiss/Answer (has to occur within 20 days)
              (For motions – either move or make a motion (not a verb))
                   i. Objections (waived if not made before responsive pleading):
                          1. 12(e) - more definite statement
                          2. 12(f) – strike redundant or scandalous matter (can be made by either party)
                             or motion to strike an insufficient defense (made by plaintiff)
                  ii. Disfavored Defenses (waived if not made in first motion or (amended) answer)
                          1. (b)(2) – lack of personal jurisdiction
                          2. (b)(3) – improper venue
                          3. (b)(4) – insufficiency of process
                          4. (b)(5) – insufficiency of service of process
                  iii. Defenses on the Merits (waived if not made in the answer or amended answer)
                          1. Respond to allegations of complaint
                                 a. Specific denials
                                 b. Qualified general denial (denies everything not expressly admitted)
                                 c. General denial (usually improper_
                                 d. Failure to deny can constitute an admission, except as to damages
                                 e. Failure to respond can result in default judgment for plaintiff
             2. Raise affirmative defenses – Rule 8(c)
                     a. injecting a new fact that shows the P cannot win
                     b. you must plead AD, or you risk waiving it
      iv. Favored Defenses (waived if not raised before end of trial – Rule 12(h)(2))
             1. These usually end up with the complaint being amended
             2. Rule 12(h)(2)
                     a. Coleman
             3. (b)(6) - Failure to state a claim upon which relief can be granted
                     a. Formerly called a demurrer
                     b. Court usually does not look at evidence
                     c. Only looks at the face of the complaint
                     d. Asks, if everything here were true, would the plaintiff win a judgment?
                     e. If based on evidence other than pleadings, treated as motion for summary
                        judgment and other party has chance to counter
             4. (b)(7) – Failure to join a necessary or indispensable party
      v. Super Duper Favored Defense (can‟t ever be waived)
             1. (b)(1) – lack of subject matter jurisdiction
                     a. Can be brought by any party, at any time
                     b. Can also be brought by the court
d. Preliminary Hearings - Rule 12(d)
       i. either party can ask for hearing to determine the validity of any of 12(b) defenses and
          12(c), unless court chooses to hold until trial
      ii. Why would plaintiff be allowed to apply for pretrial hearing on defenses?
             1. So P can amend pleading under 15(a)
             2. So P doesn‟t incur extra costs
             3. Adversary system: if D wants to have the case go through litigation, P has
                interest of stopping it earlier
             4. Statute of limitations – D will avoid getting victory while statute is still open; wants
                to let SoL run out before winning
             5. Legal strategy – D waits until SoL runs out and then makes motion to dismiss
      iii. Rule is so complicated to make amends for abuse, delay and harassment
e. Plaintiff’s Responses
       i. Responding to Defenses
             1. Motion
                     a. within 20 days after service of answer, plaintiff may move under Rule
                        12(f) to strike any redundant or immaterial matter that causes him
                     b. 12(f) also allows to strike any insufficient defense (basically 12(b)(6)
             2. Reply
                     a. Rule 8(d) – answer‟s averments are automatically taken to be denied or
                     b. Court may order reply under 7(a) in the interests of clarification
                              i. If so, has 20 days to reply
f.   Amending pleadings
        i. FRCP are very liberal about allowing amendments
       ii. Rule 15(a): Amendments as a Matter of Course
              1. plaintiff has a right to amend once before D serves answer
                     a. hypo: if p files complaint, D serves motion to dismiss, P can still file
                        amendment because D hasn‟t served answer yet
              2. D has a right to amend once within 20 days of serving answer
              3. If there is no right to amend, you seek court permission
                     a. It shall be freely given as justice so requires
                              i. Standard formula to when justice so requires (Q36):
                                     1. fault + harm - prejudice + public interest (favors amending)
                                        = standard
                             ii. Fault of movant or oppotnent in delaying
                             iii. Harm of amendment to opponent
                             iv. Prejudice – amendment is going to harm by effects of delay in
                                 asserting the amendment, not just the harm because every
                                 amendment is to help themselves and hurt their opponent.
                     b. Basically given unless you‟ve delayed too long or it would be prejudicial
       iii. Rule 15(b): About Variance
              1. only comes up at trial
              2. Amendments to Meet Objections at Trial
                     a. where objection is made on grounds that proffered evidence is irrelevant
                        under the pleadings
              3. Amendments to Conform to Evidence at Trial
                     a. if evidence is accepted without objection that goes beyond pleadings, it is
                        treated as if the original pleadings included that issue
              4. variance is where evidence introduced at trial goes beyond the pleading
                     a. hypo: P complaint about contracts, but at trial evidence comes up about
              5. if the other side does not object:
                     a. the evidence is admitted, so the variance is accepted
              6. if the other side objects:
                     a. even at trial, the party may be allowed to amend
              7. Blair – accident where timber falls on P‟s head
                     a. P‟s original complaint was that D‟s negligently handle the timber
                     b. P wants to amend complaint to allege negligent scaffolding (from D)
                     c. P did this because she found out that D was not up on scaffolding
                     d. Nelle Durham‟s mistakes
                              i. She didn‟t investigate the case better
                             ii. She could‟ve sued the subcontractor too
                             iii. She could‟ve alleged negligence generally
                               iv. She could‟ve retained negligent-handling allegations in the
                                   amended complaint
                               v. She could‟ve objected to defendant‟s method of raising statute of
                                  limitations which defendant did by motion to dismiss
                     e. Algernon Blair‟s strategies
                                i. Why did D not resist the making of the amendment itself?
                                         1. They wanted new complaint, against which they would
                                            launch statute-of-limitations attack
                                         2. Very difficult to let amendments in trial
                               ii. Statute of limitations applies to new amendment, unless new
                                   amendment involves the same transaction or occurrence
                     f.   Federal court‟s reason
                                i. Decided that it was from the same transaction or occurrence
                               ii. Whether it fell by negligent scaffolding or negligent handling arises
                                   from same transaction in time – when repairs where going on in
                                   the post office
                               iii.    Do you agree with the court‟s statement that “the issue here
                                      depends upon whether the amendment stated a new cause of
                                      action?” - No. Rule 15 never talks about a cause of action, only
                                      transaction or occurrence.
      iv. Rule 15(c): Relation Back Amendments
             1. When D wants to amend the claim either to:
                     a. add a new claim
                     b. Or join a new defendant
             2. Only works if there is “relation back”
                     a. If amended pleading if treated as if it were filed as if the original filed
             3. If adding a new claim: 15(c)(2) – that pleading relates back to original pleading if
                it concerns the same conduct, transaction or occurrence as the original
             4. If joining a new defendant: 15(c)(3)
             5. Beeck
      v. Rule 15(d): Supplemental Pleadings
             1. not really amendments, deals with events that occurred since the date of the
                pleading sought to be supplemented
g. Rule 11(c) – Sanctions
       i. What is difference between old and new rule 11?
             1. 1983, cranked up rule 11 to prevent floodgates of litigation
      ii. You have to make a reasonable investigation to look lightly at the law, and look
          reasonably at given facts.
      iii. A continuing duty
      iv. Safe harbor (21 days) to withdraw
      v. Tightening ethics does not achieve utopia – just leads to changing dynamics of
         economic reality
h. Rule 12(c) – Motion for Judgment on the Pleadings
       i. Court reads pleading facts in light most favorable to nonmoving party
              ii. If based on other evidence besides pleadings, treated as motion for summary judgment
              iii. Never really used successfully as Rule 56 SJ is much better because then you look at all
                   the evidence
             iv. Intended to decide questions of law, never issues of fact
              v. So you want to deny allegations so that 12(c) motion fails even if a SL motion is denied.
             vi. 12(f) is way to knock out an insufficient defense – if D denies allegations and thus 12(c)
             vii. 12(c) is a 12(b)(6) motion later in time
            viii. 12(f) is to strike the legal sufficiency of the defense
II.    Disclosures – rule 26(a)
       a. A party must produce information even if no one asks for it
       b. Purposes:
               i. to save time and money
                      1. people argue that it actual costs more money
              ii. moderate litigants adversary behavior in the pretrial phase
       c. Three stages:
              i. 26(a)(1) – initial disclosures
                      1. Witnesses likely to have discoverable information that the disclosing party may
                             a. Unless solely for impeachment
                      2. Documents and things that are in control of party that the disclosing party may
                         use to support its claims or defenses
                             a. Unless solely for impeachment
                      3. Computation of claimed damages
                      4. Insurance agreements that might cover part or all of an eventual judgment
              ii. 26(a)(2) – expert information
                      1. Must disclose identity of any expert witnesses
                             a. Usually must deliver a detailed report that includes all opinions to be
                                expressed and the underlying reasons
             iii. 26(a)(3) – pretrial required disclosures
                      1. Shortly before trial, parties must disclose trial witness lists and the like regarding
                         nonimpeachment evidence
                      2. Especially must disclose trial exhibits
       d. Mechanics
               i. Sanctions may be imposed for failure to make mandatory disclosure – usually means
                  can‟t use the undisclosed evidence
              ii. Party is under duty to supplement disclosures if party learns that the information
                  disclosed is incomplete or incorrect in some material respect
III.   Discovery
       a. Purpose
               i. To prevent blind trial from unfairly favoring one party over another
                      1. problem is that this usually happens with discovery – browbeating
              ii. Narrow the issues
      iii. May facilitate settlement
     iv. Get all the facts out on the table – truth
      v. Predictable trial
b. Scope of discovery
       i. Standard – Rule 26(b)(1) – can discover anything nonprivileged and relevant to the claim
          or defense of any party
              1. Relevant if reasonably calculated to lead to admissible evidence
      ii. Work products are immune from discovery – Rule 26(b)(3)
              1. material prepared in anticipation of litigation
              2. parties can overcome that immunity if:
                      a. substantial need
                      b. not otherwise available
      iii. Opinion Work Products are for the most part absolutely protected:
              1. mental impressions, conclusions, opinions, and legal theories
              2. can be generated by the party or any representative of the party – does not have
                 to be done by the lawyer
     iv. Rule 26(e) – imposes a rule based duty of truthfulness, but no duty of candor
      v. Umphres
              1. why not discoverable? Discovery is undesirable
     vi. Brandenburg
              1. why discoverable?
c. Devices – SEE PAGE 96 IN BLS
      i. Oral Depositions – Rules 30
              1. sworn, live, oral testimony
              2. can take deposition of party or non-party
                      a. have to subpoena the non-party
      ii. Written Deposition – Rule 31
              1. not as helpful as oral depositions
              2. use this instead of interrogatories when want to send to non-party
     iii. interrogatories – Rule 33
              1. written answers under oath
              2. only sent to parties
              3. 30 days to answer these
              4. O‟Brien
     iv. Request to produce – Rule 34
              1. forces other party to produce things related to case
              2. (c) can send requests to non-parties if subpoenaed
      v. Medical examination – Rule 35
              1. you can get a medical examination of a party or someone in the party‟s custody
                 or control
                      a. interpreted narrowly
                      b. doesn‟t include employee
                   2. must get a court order
            vi. Request for admission – Rule 36
                   1. sent only to parties
                   2. statements of fact – admit or deny
                   3. failure to deny treated as an admission
      d. Other Features
             i. Sanctions – Rule 37
                   1. go to court to compel compliance
                   2. like in Sibbach!
             ii. Freed
                   1. Fruits of discovery are admissible as evidence
IV.   Pre-trial Conference
      a. General
             i. Generally: (*) - old
                   1. (in)Formal
                   2. (un)Complicated
                   3. (non)Coercive
                   4. (non)Binding
            ii. Purposes:
                   1. improve the quality of justice
                   2. sharpening preparation
                   3. eliminate trial surprises
                   4. facilitate settlement
            iii. Subjects for consideration
                   1. formulation and simplification of issues (eliminate frivolous claims)
                   2. amend the pleadings
                   3. admissions of facts and documents to avoid time spent later
                   4. pare down proof and cumulative evidence
                   5. appropriateness and timing of summary adjudication (SJ)
                   6. control and scheduling of discovery
                   7. identification of witnesses and documents
                   8. advisability of referring matters to magistrate judge or master
                   9. settlement and use of special procedures to assist when authorized
                   10. form and substance of pretrial order
            iv. Identiseal v. Positive ID systems
                   1. decided before 1993
                   2. so judge cannot compel discovery
                   3. how about today? New rule 16 still protects good faith lack of participation
            v. J.F. Edwards case
                   1. says that the judge cannot force stipulation
                   2. but this was before the rewriting of rule 16
           vi. Washington Hospital & Shuber v. Kresge:
                   1. old rule 16 – “such order when entered controls the subsequent course of the
                      action, unless modified at the trial to prevent manifest injustice.”
                   2. New rule 16(e) – “the order following a final pretrial conference shall be modified
                      only to prevent manifest injustice.
                   3. Therefore, the amender must clearly (manifest injustice) show the injustice of
                      denying an amendment
                   4. 16(e) > 36(b) > 15
                   5. 16(e) motion to amend final pretrial order hardest to amend – because you have
                      to clearly show the injustice of not allowing the amendment
V.   Other Steps
     a. Terminating litigation without trial
            i. Voluntary Dismissal
                   1. A claimant generally may obtain dismissal of his action or claim by his filing a
                      notice of dismissal early in the case, by all parties' signing a stipulation of
                      dismissal, or by court order upon such terms and conditions as the court deems
            ii. Involuntary Dismissal
                   1. A defending party may move for dismissal of an action or claim against her on
                      the ground of the claimant's failure to prosecute, or failure to comply with a court
                      order or rule. Also, the court may so act on its own initiative.
           iii. Default
                   1. If a party against whom a claim for relief is asserted has failed to plead or
                      otherwise defend, the claimant may (1) get the court clerk (or the judge pursuant
                      to implicit powers) to enter a default, and then (2) get the judge (or the court clerk
                      when the act is strictly ministerial) to enter a default judgment. See Federal Rule
                      55. Also, the court may enter a default judgment for failure to comply with a court
                      order or rule. See, e.g., Rule 37(b)(2)(C).
           iv. Settlement
                   1. The parties may agree to a compromise, and then usher the action or claim out
                      of court by one of the preceding routes or by entry of a consent judgment.
     b. Summary judgment – Rule 56
            i. Standard: Court construes all factual matters in the light reasonably most favorable to
               the party opposing the motion and then asks whether reasonable minds could differ
                   1. granted if there is no dispute on a material issue of fact that the moving party is
                      entitled to judgment as a matter of law
                          a. material – it matters
                          b. Never resolve disputes of fact on summary judgment
                          c. If evidence shows issue material fact, then don‟t grant SJ
            ii. Major evidence used:
                   1. pleadings
                          a. pleadings are usually not evidence, but they might still be relevant
                             because there might be an admission in them
                   2. depositions
                   3. answers to interrogatories
                   4. admissions on file
              5. affidavits – sworn testimony
      iii. Courts usually hesitant to grant SJ
              1. But higher courts told lower courts to loosen up about SJ
                      a. celotex
     iv. SJ is always discretionary
      v. SJ can never be granted on matters of credibility
     vi. AA v. Ulen
c. Provisional Remedies
      i. Seizure – Rule 64 – law
              1. Adopts state law to provide security for possible eventual judgment
              2. Attachment – to seize property in hands of D
              3. Garnishment – to seize D‟s property that is in other people‟s hands
      ii. Injunction – Rule 65 – equity
              1. Instead of grabbing some property and holding it, it is an order in the meantime
                 to do or not do something
              2. Preliminary injunction frequently determines the outcome of the case
              3. If provisional remedy is the real remedy – it must therefore be high scrutinized
              4. Temporary restraining order is ex parte, and usually without notice
              5. Backs up the temporary restraining order with power of contempt
              6. Second Circuit – “the settled rule is that a preliminary injunction should issue only
                 upon a clear showing of either (1) probable success on the merits and possible
                 irreparable injury, or (2) sufficiently serious questions going to the merits to make
                 them a fair ground for litigation and a balance of hardships tipping decidedly
                 toward the party requesting the preliminary relief” FKC 114
                      a. E D conducting blasting operation. Under branch (1), does P need to
                         show “sufficiently serious questions”?
                              i. P needs to show probably success – better than 50% of winning –
                                 and possible irreparable injury
                              ii. Sufficient serious questions easier to prove than probable success
                      b. E same. Under branch (2) does P need to show “possible irreparable
                         injury” to herself?
                              i. Sufficiently serious questions – that they deserve to be considered
                                 by the jury – and balance of hardships
                      c. First factor and second factor are talking about the same thing – success
                         on the showing
                      d. Should district court in Second Circuit grant PI if P shows merits are a
                         toss-up and balance of hardships tip slightly toward her?
                              i. Have to look at harms to both. It would hurt P $50,000 if no
                                 injunction granted, it would hurt D $45,000 if injunction is granted.
                      e. Should district court in Second Circuit be less likely to grant PI if it would
                         put hundreds out of work?
                              i. Circuit doesn‟t care about that. Don‟t worry about D‟s harm.
              7. Seventh Circuit
                      a. Looks at Second circuit‟s standard and disagrees.
                             b. “the court asks whether the plaintiff will be irreparably harmed if the
                                preliminary injunction is denied (sometimes also whether the plaintiff has
                                an adequate remedy at law), whether the harm to the plaintiff if the
                                preliminary injunction is denied will exceed the harm to the defendant if it
                                is granted, whether the plaintiff is reasonably likely to prevail at trial, and
                                whether the public interest will be affected by granted or denying the
                                injunction (whether third parties will be harmed)” FKC 116
                             c. Is it relevant within the four factors whether the party‟s predicament is
                                self-induced or despicable?
                                      i. The seventh circuit‟s formula is leaving a lot of stuff buried.
                                         Doesn‟t tell you what to do with the factors. It has 4 different
                                         conditions, but what is the guiding rationale?
                                              1. You‟re looking for irreparable harm from wrongfully
                                                 imposed injunctions.
                                              2. What we‟re trying to do is give interim relief, in light of how
                                                 the case is ultimately decided.
                     8. Judge Posner
                             a. It is clear that there are two things really being looked at in both circuits:
                                      i. Harms – Hp versus Hd = expected cost of refusing, or granting, PI
                                         with costs broadly inclusive
                                      ii. Probability – P versus (1-P) = probability of party‟s being right, as
                                          shown by prevailing at trial – probability of costs being wrongfully
                             b. Grant PI iff: P * Hp > (1-P) * Hd
                                      i. iff expected harm to P is greater than expected harm to defendant
                                      ii. Harm is not limited to P or to D. Harm is total harm if you allow or
                                          not allow injunction. I.e. Harm(d) encompasses public interest
                             c. Preliminary injunction – has a hearing
                             d. Temporary restraining order – no hearing
      d. Settlement
              i. Formula to determine whether or not to go to litigation (or settle)
                     1. P(p)J – L + S > P(d)J + L –S
                     2. (Pp – Pd)J > 2(L – S)
                     3. (Probability that P thinks he‟ll win – Probability that D thinks he‟ll win) * Judgment
                        Amount > 2(???)
                     4. So if both parties think they‟re going to win – likely to go to litigation
                     5. If J is high, likely to go to litigation
      e. Appointment of Masters and Special Magistrates
              i. SEE PAGE 102 in BLS
VI.   Trial
      a. Right to Jury Trial
              i. Juries determine the facts (including damages), Judges determine the law
              ii. Right to jury trial in federal court is governed by 7th Amendment
                     1. applies only to federal civil cases
                     2. preserves right to jury trial in actions at law but not at equity
                     a. because preserved, not granted, have to look at historical common law
                        from 1791
                     b. today law and equity are merged
                              i. difference between the two are the remedy they can give
                             ii. at law – the remedy is damages – money to compensate you for
                                 the harm
                            iii. at equity – remedies include things like injuction, specific
                                 performance, rescission of contract, reformation of contract
                     c. up to 1959, look at center of gravity of the case to determine whether jury
                        is given
                     d. afterwards, beacon and dairy queen cases:
                              i. determine jury right issue by issue
                             ii. if an issue of fact underlies both law and equity, then you get a
                            iii. generally, try the jury issues first before the equity issues
b. Admissibility of Evidence
       i. Incompetence (Rule 601)
             1. dying concept – tool to ensure reliability of testimony
             2. today mostly aimed at mental incompetency or children
      ii. Privilege (Rule 407)
             1. extrinsic social policy
             2. loss of truth is justified by offsetting social gain
             3. if judge erroneously upholds witness‟ privilege and excludes testimony, should
                party damaged by able to attack this on appeal?
                     a. Yes, because truth is erroneously denied
             4. If judge erroneously denies privilege and admits testimony, should party
                damaged be able to attack on appeal?
                     a. No, because who cares if “too much” truth came out
      iii. Hearsay (Rules 801-805)
             1. Protects cross-examination and being able to see witness‟ demeanor
             2. Examples:
                     a. Hearsay: Witness testifies that X said P to prove P
                     b. Not Hearsay: Witness testifies to P to prove P
                     c. Not Hearsay: Witness testifies that X said P to prove that X said P
                              i. When out of court statement is a verbal act
                             ii. In libel cases
             3. Hearsay exceptions
                     a. Availability of Declarant Immaterial
                              i. Excited Utterance Exception
                                     1. Someone who blurts out the truth when they‟re excited
                                        probably doesn‟t have time to fabricate mistruth
                                     2. Handel: door closing on guy on trolley
                                             a. Why did he close the door on me?
                     b. Declarant Unavailable - Rule 804
                              i. Dying Declaration – construed narrowly
                                     1. case must be in homicide case
                                     2. utterance had to be made by declarant while believing his
                                        own death was imminent
                              ii. Declaration against Interest
                              iii. Admissions
                                     1. they are just not hearsay
                                     2. differences from declaration:
                                             a. admissions attributable to parties, while a
                                                declaration is against an interest and can be
                                                uttered by anyone
                                             b. admissions need not be against interest
                                             c. for admissions, availability of declarant is
              4. In multiple hearsay problems, if each of the degrees of separation are justified,
                 then it is admissible
c. Motions at Close of Evidence
       i. Special Verdicts and interrogatories – Rule 49
              1. special verdict for when you want specific findings of fact
              2. written interrogatories used with general verdict
              3. rarely used – mostly just general verdicts
       ii. Instructions to Jury – Rule 51
              1. judges can give brief instructions at the beginning and periodic instructions
                 throughout the case, and even substantial instructions before closing arguments,
                 and instructions again after closing arguments
              2. usually just give instructions at end of closing arguments
              3. federal approach is to assume unintelligence of jury
      iii. Findings by Court – Rule 52
              1. where judge must find facts and law separately if sitting as the decision maker
d. Motions related to trial
       i. For court to exercise control over jury
       ii. Motion for Judgment on Partial Findings – Rule 52(c)
              1. only available in trials with judge
              2. if court finds against non-mover, if they haven‟t met burden of production
              3. after P presents all of his evidence
              4. standard: supported by findings of fact and conclusions of law for court find
                 against nonmoving party
      iii. Motion for Judgment as a Matter Law (JMOL) – Rule 50
              1. used to be motion for directed verdict
              2. standard: the reasonable minds can‟t differ on the result
                     a. legally sufficient evidentiary base for reasonable jury to find for non-
                        moving party on an issue with respect to a claim
                       3. very similar to summary judgment, which is before trial
                               a. using evidence at trial – in light favorable to the motionee
                               b. why could judge grant Rule 50 but have denied SJ motion?
                                        i. If evidentiary record changes or testimony is impeached
                                        ii. Judge is often hesitant about prematurely interceding
                       4. no issue of disputed fact
                       5. after 12/1/06 – can make a JMOL motion at any time, even before close of all the
                iv. Renewed Motion for Judgment as a Matter of Law – Rule 50(b) - Notwithstanding
                    Verdict (JNOV)
                       1. exactly the same as JMOL
                       2. except after the jury has returned the verdict
                v. Motion for a New Trial
                       1. where judge says, there is a problem with this case, lets have a new trial
                       2. Reasons are many –wrong jury instructions, prejudicial misconduct, wrong
                          burden of proof
                       3. less radical than the RJMOL
                       4. different standard from JMOL – verdict is against the weight of the evidence
                       5. also considers all evidence together

                 Summary           Partial             JMOL – 50(a)        R JMOL – 50(b)        New Trial –
                 Judgment – 56     Findings –                                                    59(a)(1)

Standard of      Reasonable        N/A – judge is      Reasonable          Reasonable            Verdict is
Review           minds could not   the decision        minds could not     minds could not       against weight
                 differ            maker               differ              differ                of evidence

Amount of        Evidence          All evidence        Evidence            Evidence              All Evidence
evidence         favorable to                          favorable to        favorable to
considered       opponent +                            opponent +          opponent +
                 unquestionable                        unquestionable      unquestionable
                 evidence                              evidence            evidence

   VII.   Judgment
          a. Declaratory Relief
                 i. Constitution forbids advisory opinions
                ii. § 2201(a) – allows anticipatory relief in certain cases of actual controversy
                iii. American Machine
                       1. P wants court to construe contract for him before he breaches
                       2. second circuit says he constructed statute too narrowly
                iv. Medimmune v. Genentech
                       1. court says that P has to breach license to create actual controversy
                v. International Longshoremen‟s
                       1. there needs to be actual harm to create controversy
                       2. by ruling the way he did, Frankfurter actually allowed union to bring actual cases
                          by erasing district court‟s unfavorable ruling
              vi. Evers
                      1. Balancing costs of deciding v. costs of not deciding
VIII.   Appeals
        a. Final judgment rule
               i. In federal court, you can not appeal until the trial court enters a final judgment
                      1. final judgment – an ultimate decision on the merits of the entire case
                      2. question to ask: after making this order, does the trial judge have anything left to
                         do on the merits of the case?
                      3. then you need a interlocutory order – made before end of trial
                      4. hypo: after the case, other party motions for new trial and it is granted, you can‟t
                         appeal until new trial is finished
        b. Interlocutory review – some non-final orders that can be appealed
               i. By statute
                      1. § 1292(a) – certain interlocutory orders are appealable as matter of right –
                         usually dealing with injunctions
                      2. § 1292(b) – allows trial judge to certify an issue for appeal
                               a. Court of appeals also has to agree
              ii. Under FRCP
                      1. Rule 23(f) – gives COA discretion to hear a class action certification appeal
                               a. Even if trial court denies certification
                      2. Rule 54(b) – in cases with multiple claims or multiple parties, allows trial court to
                         treat it like a final principle
              iii. Judge made
                      1. collateral order rule
                               a. gives COA discretion to hear appeal if all the following are true:
                                       i. important issue separate from merits of the case; AND
                                       ii. trial court has completely resolved the issue; AND
                                      iii. effectively unreviewable if COA waits until final judgment
                               b. only really used in 11th amendment immunities cases
        c. Types of Review
               i. Correctness Review
                      1. to oversee lower court judges‟ decisions
              ii. Institutional Review
                      1. to ensure harmony and consistency in the development and application of legal
                         rules among various judges in a given jurisdiction
                      2. all supreme court review is institutional
        d. Reviewability: On appeal, can review errors:
               i. Appearing of record
              ii. Asserted in trial court (by objections)
              iii. Reasserted in appellate court
              iv. Adequately serious – harmless errors not reviewed
              v. Adequately clear, given standard of review
                           1. varies from de novo to highly deferential
          e. Standard of Review
                     i. Almost de novo – for matters of law decided by judge
                 ii. Intermediate – for matters of fact decided by judge
                 iii. Highly deferential - for matters of fact decided by jury

Selecting a Forum:
   IX.    Personal Jurisdiction
   X.     Subject Matter Jurisdiction
          a. Generally
                     i. Constitutionally required
                 ii. Non-waivable
                 iii. Different from PJ – PJ tells us that we can sue in a particular state, but did not say
                      anything about what court we go to
                 iv. SMJ allows you to decide whether to go to a state court or a federal court
                 v. State courts have general SMJ
                           1. can hear any cognizable claim
                           2. except some federal question cases, which have exclusive federal question
                              jurisdiction (i.e. patent infringement, federal anti-trust cases)
                vi. Federal courts have limited SMJ (due to constitutional limit)
                           1. Diversity of Citizenship and Federal Question
                vii. Federal Courts have exclusive jurisdiction in certain areas:
                           1. Not provided by USCON, because all powers given to federal courts by USCON
                              also given to state courts
                           2. Given to federal courts by Congress
          b. Diversity of citizenship - § 1332 (a)(1)
                     i. Purposes:
                           1. to protect parties against bias in state courts
                           2. to protect international relations
                 ii. Have to have citizens of different states; AND
                           1. complete diversity rule:
                                    a. no diversity if any plaintiff is a citizenship of the same state as any
                                    b. from strawbridge v. curtis, not from statute
                           2. what is the state citizenship of human being?
                                    a. For a US citizen
                                            i. they are a citizen of the state where she is domiciled
                                            ii. Factors:
                                                   1. Physical presence in the state
                                                   2. Subjective intent to make that your permanent home (i.e.
                                                      voting, employment)
                                           iii. Everyone is domiciled, and no one has more than one domicile
                                    iv. Need both national formality + state domicile. Baker v. Keck
                                            1. so US citizen living in UK has no state nor foreign
                                               citizenship = no SMJ
                                    v. alien admitted to the US for permanent residence shall be
                                       deemed a citizen of the state in which such alien is domiciled

       Def.:         CA       NY         NY          UK          UK citizen living     Cuban
                                         living in               in NY with Green      Refugee
                                         UK                      Card                  living in FL

CA                   NO       Yes        NO          Yes         Yes                   NO

NY                   Yes      NO         NO          Yes         NO                    NO

NY living in UK      NO       NO         NO          NO          NO                    NO

UK                   Yes      Yes        NO          NO          Yes                   NO

UK citizen living    Yes      NO         NO          Yes         NO                    NO
in NY with Green

Cuban Refugee        NO       NO         NO          NO          NO                    NO
living in FL

                    3. what is citizenship of corporation?
                           a. § 1331 (c)(1) – a corporation is a citizens of all states where incorporated
                              (corps. are usually incorporated in only 1 state); AND
                           b. also a citizen of the one state where it has its principle place of business
                           c. Corporation can be citizen of 2 states
                           d. How to figure out PPB:
                                     i. Nerve center: where the decisions are made – usually corporate
                                    ii. Muscle center: where the corporation does more stuff than
                                        anywhere else – manufacturing headquarters
                                    iii. Total activities test: use the nerve center unless all of the activity
                                         is in a single state
             iii. Amount has to exceed $75,000
                    1. Has to be $75,001 or more, not counting interest and costs
                    2. P‟s claim governs, unless it is clear to a legal certainty that she can‟t recover
                       more than $75,000
                           a. Can prove legal certainty if there is a legal cap
                      b. But usually have to go with P‟s claim amount
              3. if P is awarded <$75,001, then under § 1332(b), can remand the case to state
                 court, but usually doesn‟t happen
              4. Aggregation means adding 2 or more claims to get over $75,000
                      a. We aggregate claims if its one P (with 2 claims) v. one D
                      b. Can‟t aggregate if there are multiple parties on either side
              5. with joint claims (i.e. joint tortfeasors), use total value of the claim and the
                 number of parties is irrelevant
c. Federal Question Jurisdiction - § 1331
       i. Ctizenship is irrelevant and no amount requirement
      ii. Requirements
              1. statute must give jurisdiction to the courts
              2. bestowal must fit within guidelines of article III
      iii. Special statutes
              1. § 1338 – gives federal courts exclusive jurisdiction to hear patent, plant variety
                 cases, etc…
      iv. Problem with FQJ; The well-pleaded complaint rule
              1. in assessing FQJ, the court looks only at P‟s complaint, it does not look at
                 anything at D; AND
              2. look only at the claim itself and ignore everything else;
              3. AND that claims must deal with federal question
      v. Motley case
              1. lifetime pass on railroad; but congress passes a federal law that says that
                 railroads can‟t honor free passes
              2. Claims:
                      a. Motley‟s claim that railroad is breaching the contract with us (to give us
                         free passes)
                      b. Motley‟s claim that the federal law does not apply to them
              3. Decision:
                      a. No FQJ because their claim has nothing to do with federal law, its only a
                         breach of contract case
                      b. The second part of their claim only addresses the anticipated defense
              4. Look at whether a P is enforcing a right under that federal law, if yes, then FQ, if
                 no, then no FQ
d. Supplemental Jurisdiction § 1367
       i. Usually, the P must invoke either diversity or FQJ to get the case into federal court
              1. There may be additional claims asserted in that case (by P, D, or 3rd party)
              2. For every single claim you see in federal, you must have subject matter
       ii. But Supplemental jurisdiction allows court to hear non-diversity /non-FQ claims:
              1. The original claim must have invoked SMJ
              2. The additional claim can still get into federal court by supplemental jurisdiction
      iii. Gibbs:
              1. P(Tenn) ------------------------ D(Tenn)
                                1. (FQ claim)
                                2. (state law claim)
                     2. obviously claim 1 gets into federal court because its FQJ
                     3. the second claim cannot get in on FQ or Diversity, but federal court can hear
                        claim 2 if part of the same overall case (pendant jurisdiction = supplemental
                     4. they are part of the same case if they share a common nucleus of operative fact
            iv. Same transaction or occurrence meets Gibbs test
             v. Does § 1367 grant supplemental jurisdiction? – yes if it meets Gibbs - § 1367 codifies
                Gibbs rule
            vi. Does § 1367 (b) take away Supplemental jurisdiction of this claim?
                     1. only applies in diversity cases, not FQ
                     2. takes away SJ over certain claims by P‟s, does not apply to claims by D‟s or
                        other parties
                     3. SJ taken away over these claims:
                            a. Claims by the P against parties joined under rules 14, 19, 20, and 24
                            b. Claims by plaintiffs brought in by rule 19
                            c. Claims by plaintiff interveners
      e. Removal
             i. Where a D sued in state court removes the case to federal court
             ii. § 1441, 1446, 1447
            iii. Removal works only one-way (from state to federal)
                     1. if case does not belong in federal, then it gets remanded to state court
            iv. plaintiff can never remove, even if they‟re counterclaimed
             v. you must remove within 30 days of service of the document that first makes the case
            vi. can remove if there is Federal SMJ
            vii. exceptions (apply only in diversity, not in FQ):
                     1. no removal if any D is citizen of the forum
                     2. there is no removal more than 1 year after the case was filed in state court
           viii. can also go from State Supreme Court to US Supreme Court
XI.   Venue § 1391(a)(b)
      a. Generally
             i. Non constitutional
            ii. Waivable
            iii. Tells us which federal court to go to
            iv. § 1391(a) – diversity, (b) – FQ; (but usually the same provisions)
             v. Different from jurisdiction
                     1. Residence basically means domicile
                     2. For corp., residence defined by §1391(c): they reside in all districts where it is
                        subject to personal jurisdiction (could be up to all 50 states)
      b. P may lay venue in a district:
             i. Where any defendant resides if all defendants reside in the same state,
                      1. Exception: if all D‟s reside in different districts of the same state, you may lay
                         venue where any of them resides
              ii. OR Where substantial part of the claim arose
             iii. OR where a substantial part of property that is the subject of the action is situated
             iv. Exception
                      1. § 1391(a)(3) and (b)(3) are only relevant if there is no district any where in the
                         US that does not meet any one of these two choices
                      2. In which case, then apply the venue where any D is subject to personal
                      3. Or, wherever the defendant may be found
       c. For Removal Jurisdiction
              i. When removing from state to federal court, must be in the federal court that
                 encompasses the state courthouse from which it was removed
       d. Transfer of Venue: moving from one court to another in the same judicial system
              i. You can transfer from federal court in NJ to federal court in CA
              ii. Can‟t transfer from state NJ court to state CA court
             iii. The transferor court is the original court (where the case is original is field); transferee is
                  the court to which we transfer
             iv. Transfer statues: §1404(a) + §1406(a)
                      1. In both of these statutes, transferee must be a proper venue and must have
                         personal jurisdiction on the D
                      2. In §1404(a), the transferor is a proper venue, but transferring because other
                         court is better
                             a. Look at convenience and the interest of justice
                      3. In §1406(a), the transferor is an improper venue
                             a. Court can transfer or dismiss the case
              v. Forum non convienens – doctrine of dismissal
                      1. where court dismisses a claim because there is a much more appropriate court
                         somewhere else
                      2. don‟t transfer here because transfer is impossible – the other court is in a
                         different judicial system
                      3. often that other court is in a different country
                      4. piper aircraft v. reyno (1981), plane crash in Scotland, court dismisses from PA to
                             a. factors to determine whether or not to dismiss (footnote 6)
                                      i. public factors
                                     ii. private factors
XII.   Notice (service of process)
       a. Generally
              i. Constitutional
             ii. Waivable
             iii. In addition to PJ, DP requires notice and an opportunity to be heard
             iv. Service does more than establish personal jurisdiction
              v. Asserting Nexus
           b. Service of Process (FRCP 4)
                   i. Process consists of summons and copy of complaint
                  ii. Rule 4(c)(2): Service can be made by any non-party who is at least 18 yrs – rule
                  iii. Rule 4(e)(2): ways to serve
                          1. personal service – handing service to the person, can happen anywhere in the
                          2. substituted service – okay only at the D‟s usual abode or dwelling house; and
                             serve someone of suitable age and discretion who resides there
                          3. service on D‟s agent -
                  iv. Rule 4(e)(1): supplements the ways to serve above
                          1. allows to use a method that is allowed by state law (either where state where Fed
                             court sits or state where service is effective)
                  v. Rule 4(d): waiver of service of process – done by mail
                          1. waiving formal service
                  vi. Geographic limits under Rule 4
                          1. Rule 4(k)(1)(a) – can serve process throughout the state where the federal court
                          2. Can serve out of state only if state court in the state could do so as well
                          3. 4(k)(1)(b)(c)(d) – exceptions to above rule, allows you to serve out of state in
                             certain circumstances
           c. The Constitutional Standard for Notice
                   i. Mullane v. Central Hannover Bank
                          1. Standard: Notice must be reasonably calculated under all the circumstances to
                             apprise the parties of the suit
                          2. Doesn‟t apply to Rule 4 methods
                          3. is constructive notice okay (i.e. notice in newspaper)? usually no good; but rarely
                             okay if reasonably calc.
           d. Opportunity to be heard
                   i. Some safeguard factors for court to give D “opportunity”
                          1. D gets a hearing at some point
                          2. The P must give an affidavit
                          3. P must state facts specifically
                          4. P gets order from judge, not from sheriff
                          5. P must post a bond

Complex Litigation
   XIII.   Multi-claim litigation
           a. Diversity
                   i. Ok - New Yorker and New Yorker v. Missourian
                          1. Under §1332(a)(1) – “between citizens of different states”
                  ii. Not ok – New Yorker v. Missourian and New Yorker
                          1. No complete diversity
                    a. Rule of complete diversity read into rule 1332 by Justice Marshall
     iii. Not ok – NY + OH v. MI + NY
             1. Minimal diversity because there are citizens of different states on either side
             2. But still not complete because NY on each side
     iv. Ok – NY and OH v. MI
      v. Ok – NY and OH v. Frenchwoman
             1. Under §1332(a)(2) – “between citizens of a state and citizens or subjects of a
                foreign state”
                    a. Mean to address suits between Americans and aliens
             2. But how about the plural “citizen of a state”?
                    a. Both NY and OH – problem under statute because they are from different
             3. If the statute is ambiguous, allows the courts to pursue policy.
                    a. So courts decided that purpose of alien clause is to get Americans and
                       foreigners into federal court
             4. So this provision, being ambiguous, should be interpreted to mean, “between a
                foreign citizen and citizens of a State or of different States.”
     vi. Yes – NY and Frenchwoman v. OH
             1. under §1332(a)(3) – “between citizens of different States and in which citizens or
                subjects of a foreign state are additional parties.”
     vii. Yes – NY and Frenchwoman v. OH and Frenchman
             1. under §1332(a)(3)
             2. no members of same US State on opposing sides
             3. Under Marshall‟s complete diversity ruling – if you have a New Yorker on both
                sides, you‟re out of the situation where there might be bias
             4. So the policy behind complete diversity doesn‟t carry over to here
    viii. No – NY and German v. Frenchman
             1. §1332(a)(3) is an expansion of §1332(a)(1) – (a)(3) does not apply to this case
                because it is not between citizens of different states
             2. Lots of policy reasons give good arguments for federal jurisdiction, but limited by
                    a. Reason for alien jurisdiction – you‟re going to offend a foreign country
             3. Has to be heard in state court or in France
b. Removal (under §1441)
      i. CA v. CT & CT Inc. in CA state court seeking joint relief: can corporation alone
             1. No, they must remove together
      ii. CA v. CA & CT Inc. in CA state court seeking joint relief: can defendants together
             1. Yes, if and only if federal question case
                    a. Cannot be under diversity claim because CA on opposing sides
                    b. So it must be under federal question
                    c. And no limitation under federal question about in-state defendants being
                       unable to move
      iii. CA v. CA & CT Inc in CA state court seeking declaratory judgment on accident
           coverage: can corporation alone remove?
             1. Yes, but why?
             2. ? Under §1441(c) – “if you have separate and independent claims, you apply the
                removal test to each of the claims”
                     a. But this does not work here, because not separate and independent
             3. ? Under 1332(c)(1) – there is an exception to an insurer
                     a. Refers to situations in states, that allows an injured person to sue an
                        insurance company directly (In Wisconsin and Louisiana)
                             i. Direct action statute
                     b. 1332(c)(1) – knocks out the direct action, but this is not a direct action
             4. Because technically A and B both want the same result against the
                insurance company
                     a. Insurance company is the sole defendant and can remove (under
                        diversity of jurisdiction)
                     b. The alignment of the parties as Ps and Ds in the pleadings is not
                        conclusive in determining diversity jurisdiction. The court will realign the
                        parties for such purpose according to their ultimate interests.
                        Realignment thus may either defeat or create jurisdiction.
                     c. Realignment would occur when the question is put in front of the federal
                        court, so this would happen after removal
                     d. The whole case goes up on removal, even under 1441(c).
c. Venue
       i. What is the proper venue in each of these cases:
             1. Maine v. Vermont and New Hampshire – diversity of citizenship, claim in Maine
                     a. Maine
             2. Maine v. Buffalo (WDNY) and C (SDNY) – diversity of citizenship, claim in Maine
                     a. Any district in New York, maine
             3. Buffalo and Manhattan v. Vermont and NH – DOC, claim arose in Quebec
                     a. 1391(a)(3) – where you satisfy personal jurisdiction
                             i. Can’t do Vermont or NH because you can’t get personal
                                jurisdiction over the other
                                    1. If you sue in Vermont, you can‟t get personal jurisdiction
                                       over NH person
                     b. You could drop one of the defendants, or just bring two separate lawsuits
             4. Same as preceding case except that D work sin a factory in Vermont
                     a. Then, Vermont is okay because you can assert personal jurisdiction over
                        the NH in Vermont
d. General Joinder Provisions
       i. Permissive Joinder = Outer limit on joinder of parties
             1. Proper Parties
                     a. Rule 20(a) – who may be joined as co-plaintiffs and co-defendants
                             i. If arises out of same T/O; AND
                              ii. Raises at least one common question
                              iii. (as long as there is SMJ)
      ii. Required Joinder = Inner limit on joinder of parties
              1. Necessary and Indispensible Parties
                      a. Rule 19 – court may enjoin certain parties if it is necessary
                               i. (a) Is the other party necessary? Yes, if:
                                      1. (1) Without other party, the court cannot accord complete
                                         relief, OR
                                              a. Interest of efficiency
                                      2. (2)(1) Interest of other party may be harmed if not joined,
                                              a. Interest of other party
                                      3. Interest of other party may subject D to multiple or
                                              a. Interest of defendant
                              ii. If necessary, then is joinder feasible?
                                      1. Usually boils down to PJ and SMJ
                                      2. Not feasible if it destroys diversity of citizenship
                             iii. If not feasible, then proceed with other party or dismiss the
                                  whole case (called indispensable)
                                      1. This decision made by Rule 19(b) – according to equity
                                         and justice
                                      2. Motion to dismiss by 12(b)(7)
e. Special Provisions
       i. If it starts with C its between existing parties
      ii. If it starts with I, then joining someone new
     iii. Impleader
              1. Rule (14)(a) - a defending is joining somebody who owes her indemnity or
                 contribution on the underlying claim
                  P  D  TPD(third party defendant)
                  P  TPD (P can assert his from same T/O)
                  TPD  P
              2. Can only be used to cover the third party plaintiff‟s liability to the original plaintiff,
                 not to assert any liability that the TPD might have directly to the original P
              3. TPD must be a non-party (if not then cross claim)
              4. P can also implead on a counterclaim
              5. TPD can also implead to bring in fourth party defendant, etc…
              6. Vouching in:
                      a. Where TPP gives simple notice of action and offers control of defense to
                      b. Vouchee is bound by the judgment on the questions of his liability
     iv. Interpleader
              1. when you get two people who are going to sue you for the same thing, and there
                 is a risk of you getting hit twice with judgment
       2. can be brought as an original action or by counterclaim
       3. if based only on federal question, then apply usual rules of SMJ, venue and
       4. if based on diversity:
              a. Rule interpleader – no special provision for jurisdiction, venue and service
              b. Statutory interpleader – partial diversity (if any P can sue any D) + $500;
                 process is nationwide; venue is in any district any claimant resides in
v. Intervention
       1. Rule 24 - Where third party (absentee) brings himself into the case
              a. Can come in either as P or D
       2. Intervention of right – rule 24(a)(2)
              a. basically the same test as 2nd part of necessary parties test (to avoid
                 harm to the absentee)
       3. Permissive intervention – rule 24(b)(2)
              a. have to show that your claim or defense has at least one common
                 question with the pending case
vi. Class Action
       1. Rule 23 – where rep. sues on behalf of a class
       2. Requirements:
              a. you must demonstrate all 4 requirements of 23(a)
                       i. numerosity – too many people for simply joinder
                      ii. commonality – some questions in common
                      iii. typicality – rep‟s claim must be typical of class
                      iv. rep will fairly and adequately rep the class
              b. must fit the case within 1 of 3 types in 23(b)
                       i. (b)(1) and (b)(2) are more specialized, rare
                              1. No right to opt out
                      ii. (b)(3) – must show:
                              1. that common questions predominate
                              2. that class action is superior method for resolving the
              c. if class is certified, the court must define the class and appoint class
                       i. not a real class action until certified by court
              d. notice of pendancy
                       i. in b(3) class, the court must give notice to all members reasonably
                              1. what kind of notice required is defined by 23(c)(2)(b) (i.e.
                                 right to opt out)
              e. who is bound by a class judgment
                       i. all class members except those who opted out of b(3) class action
              f.   settlement or dismissal of certified class must be approved by the court –
                   rule 23(e)
              g. what about SMJ?
                                           i. For citizenship of class, look only at representative
                                          ii. How about amount in controversy?
                                                  1. Invokes diversity if representative‟s claim exceeds $75,000
                                                  2. You don‟t care about class members
                                 h. class action fairness act (2005)
                                           i. you can take a class action to federal court if any class member is
                                              diverse from any defendant; AND
                                          ii. if class claims exceed $5mil
                                          iii. whole point is for corporate defendants to get cases out of state

Choice of Law
   XIV.   Erie Doctrine
          a. Historically
                 i. Swift v. Tyson – (1837 – 1939)
                          1. Facts: whether a discharge of a prior debt constitutes valid consideration for an
                             indorsement of a bill of exchange
                                 a. NY said no, Federal said yes = swift wins
                          2. Rule: in federal court diversity actions, courts will apply federal common law
                             unless there is a state statute or local usage that is applicable
                          3. Rationale:
                                 a. Rules Decision Act does not include case law.
                                 b. Story interpreted “laws of several states” § 1652 in RDA to apply only to
                                    state statutes and local usages
                                 c. How did he do this?
                                           i. Didn‟t think that court decisions constituted laws – they were only
                                              evidence of what the laws are
                                          ii. Only refers to positive laws, not general principles
                                          iii. Isn‟t saying there isn‟t general law, but that the RDA was referring
                                               only to the positive laws
                                 d. Story is suggesting that its odd for federal judges to look to the state
                                    judges to understand what general, transcendental law was.
                                           i. Everyone is bound by natural law
                                          ii. They might as well do it themselves – federal shouldn‟t be bound
                                              by states judges
                                 e. What was strongest motivator of Story‟s decision?
                                           i. Instrumentalist policies – trying to make sure that the law
                                              optimizes values
                                          ii. Underlying jurisprudence – to not have federal courts subjected to
                                              state courts
          b. Erie Doctrine
                 i. Found old doctrine unconstitutional because it took federal courts into areas beyond the
                    powers constitutionally bestowed on the federal courts (into matters of state)
        1. but at the same time, did not compel federal courts to adopt the outermost
           boundary of its powers
        2. therefore, in hard cases, the choice-of-law problem is not really a constitutional
 ii. RDA “except clause” – state law presumptively applies in federal court except where the
     Constitution, a statute, or the judicially developed choice-of-law technique displaces it
iii. All it said was that the choice-of-law must not:
        1. foster forum shopping between the two systems
        2. favor one party over another (unequal treatment)
        3. infringe on states authority
iv. No real guidance as to how to choose the governing law
 v. How is federal court usually to determine the forum state‟s law?
        1. Make believe it is the state‟s highest court – rule as if it were the state‟s court –
           replicate the state court
                a. SDNY – pretend that it is the NY state court applying PA law
        2. You have look at everything the highest court would look at
        3. trying to do what would happen if certification was practical
                a. certification doesn‟t usually happen because state‟s usually don‟t give
                   advisory opinions and because its very expensive
                b. used very rarely – in only very important questions
                c. i.e. if a state is very influenced by the restatement, then the federal court
                   would adopt the same method
        4. follows basic premise of erie – that state law applies in federal court
        5. follows basic premise of klaxton – want the same outcome in state and federal
vi. Where is state/federal line? The real importance of Erie.
        1. The rule of erie: state law, whether its in the form of statutes or decisions,
           provides the rule of decision in federal courts as to certain matters
        2. What are those matters?
                a. The later cases decide this
vii. Differences with Swift
        1. New statutory construction - Story read RDA wrongly
                a. relied on Ellsworth‟s original draft of RDA, which has both statutes and
                   common law
                b. interpreted the taking out to mean that they wanted it in there, and that
                   the short hand fully encapsulated what it meant
                c. counter argument: but if they removed the language with “common law”
                   from draft, doesn‟t that mean they didn‟t want it in there?
        2. Different underlying jurisprudence
                a. went from natural view to positivism
                b. and went from declaratory view to realism
                c. early view
                        i. natural law
                        ii. courts declare law, don‟t make law
                    d. positivist view
                            i. law consists of that which has been enacted by a sovereign
                    e. legal realist view
                            i. courts are making law all the time
             3. Instrumentalist policies
                    a. What was Brandeis really motivated by?
                            i. Forum shopping, equal protection rights
             4. From reading the opinion, what seems to be the strongest motivator of Erie
                    a. underlying jurisprudence
c. Later attempts to determine when to apply state/federal law (1938-1965)
       i. Substance Procedure Test
             1. Cities Service v. Dunlap
                    a. apply state law on matters of substance and federal laws of procedure
                            i. How to determine what is substance?
                                   1. general: elements of claim and defense are substance
                                   2. how about other things (i.e. burden of proof, statute of
                                      limitations, etc…)
                                   3. look at other cases
                    b. Here, SC determined that the burden of proof was a substantive matter
                       to be handled by appropriate state law
                            i. upheld by Palmer v. Hoffman – said that burden of proof as to
                               contributory negligence was a substantive issue notwithstanding
                               Rule 8(c), because it only covers the manner of pleading
             2. Klaxon v. Stentor Electric
                    a. The conflict of laws rules to be applied by federal court must conform to
                       those prevailing in the state‟s courts
                    b. i.e. action brought in USDC for District of Delaware, instead of apply
                       general conflicts laws, should do what the state court does in conflict of
                       laws case
                            i. turned out to be the same thing – apply NY law
                    c. Horizontal forum shopping fostered by Klaxon:
                            i. You can forum shop among the states, and you can forum shop
                               among the federal courts
                            ii. Okay because interstate forum shopping is inherent in a federal
                    d. But you can‟t vertical forum shop anymore – eliminates intrastate forum-
      ii. Outcome Determinative Test
             1. Guaranty Trust v. York
                    a. rejected the substance-procedure test in favor of policy based approach
                    b. Federal judge want to ignore the state statute of limitations in order to go
                       ahead with the case
                    c. Statute of limitations is substantive for erie purposes because it affects
                       the outcome
               d. Problem with this is that everything is somewhat outcome determinative –
                  court has never addressed this
               e. holding: state statute of limitations applies to state-created claim
               f.   basically asks whether applying a federal rule will change the outcome, if
                    so, apply state law
       2. Ragan v. Merchants Transfer
               a. holding: state statute which states that action is commenced with service
                  of process governs when action is deemed commenced for statute of
                  limitations purposes
       3. Woods v. Interstate Realty Co.
               a. holding: state statute closing courthouse doors to non-qualifying foreign
                  corporations applies
               b. state law prohibiting foreign corporation from bringing any action in MI
                  state court unless it designates an agent in-state applies in federal courts
       4. Cohen v. Beneficial Industrial Loan Corp
               a. holding: state security-for-suit statute applies
       5. Bernhardt v. Polygraphic Co. of America
               a. holding: state law on enforceability of agreements to arbitrate applies
               b. issue of what to do when there is no state law on point, or if the state law
                  is outdated
iii. Interest Analysis
       1. Byrd v. Blue Ridge (1958)
               a. question of whether jury or judge should decide certain fact-based
                  element of a state-created defense
                          i. federal practice said jury
                         ii. state law (SC) said judge
               b. still takes outcome determinative effect into account, but doesn‟t treat it
                  as dispositively
               c. balances state‟s interests against federal interests [affirmative
                  countervailing considerations] (with outcome determinative effect
                  weighing against federal interest)
                          i. states interest V. federal interests – OD effect
               d. Where something is not clearly a matter of substance, the federal court
                  will apply state law, unless there is a federal interest in doing it differently
               e. The federal interest here is allocating power between judge and jury
       2. Hannah v. Plumer (1965)
               a. Issue of whether service should be performed according to Rule 4(e)(2)
                  or state law
               b. Hanna/Sibbach Rule
                          i. Applies FRCP whenever there is one on point, as long as
                         ii. The rule needs to be valid under the Constitution AND
                         iii. Have to see if it fits within the Rules Enabling Act - § 2072
                         iv. FRCP is valid as long as its arguably procedural
                         v. Arguably ignored state interests
               c. Hanna/Erie Rule
                            i. What happens if there is no FRCP on point
                           ii. Court looks to whether the difference in laws would undermine the
                               twin aims of Erie: prevent forum shopping and unequal treatment
                               of laws.
                           iii. Refined outcome determinative test
                           iv. Unbalanced towards applying state law
            3. Szantay v. Beech Aircraft Co.
                   a. State door closing statute to suits bring by non-citizens against state
                   b. Federal court found state interest weak, some outcome determinative
                      effect, but federal interest in the unequal treatment of citizens v. non
                   c. Thus applied federal law
            4. Day v. Zimmerman
                   a. Issue of whether to apply state conflict of laws rules as opposed to federal
                      rules – same issue as in Klaxon
                   b. Although Court of Appeals did an ad hoc balancing to determine the
                      federal interests at stake were high,
                   c. Supreme Court remanded stating that stare decisis holds that state
                      conflicts laws applied
            5. Walker v. Armco Steel
                   a. Same issue as in Ragan – whether service of process is required to toll
                      state statute of limitations (or filing complaint)
                   b. Plaintiffs argued that Ragan rule was overruled by Hanna because FRCP
                      Rule 3 was on point
                   c. SC disagreed stating that the Hanna rule was premised on a „direct
                      collision‟ between the federal rule and state law
                   d. Here, Rule 3 only states that action is commenced by filing a complaint,
                      but says nothing about whether the Rule was intended to toll a state
                      statute of limitations
                   e. Also, though there is no problem of forum shopping, result in favor of
                      plaintiff would lead to inequitable administration of the law
                   f.   Therefore, as in Ragan, state law applies
            6. Burlington Northern RR v. Woods
                   a. Question of first impression – so not under stare decisis
                   b. Gives Federal Rules broad reading
                            i. Later narrowed by Gasparini
                   c. Federal law applies throughout the broad enclave of Federal Rules, by
                      virtue of Hanna/Sibbach
            7. Gasparini v. Center for Humanities
                   a. applied state law in regards to reviewing jury awards, but remanded to
                      district court to review, as allowing Appeals court to do so would affect the
d. What to do today [Hanna/Byrd Approach]
      i. Is there is a Federal Directive on point?
            1. It there a FRCP on point?
              a. If yes, then it holds according to Hanna/Sibbach
              b. Federal Rules are to be read narrowly. Gasperini
                       i. Reads rule 59 very very narrowly
                      ii. Overturns Burlington RR‟s broad reading of FRCP
       2. Has Congress passed a law on point?
              a. If yes, then it holds as long as its Constitutional
                       i. E.g. Federal Rules of Evidence
              b. Congress‟ approach is essentially similar to the courts‟ Erie methodology,
                 except that congress:
                       i. can be and should be a more active articulator of federal interests
                      ii. can be less systematic and rational
                     iii. can just choose federal law to govern, but leave its formulation to
                          the courts, e.g., privilege “shall be governed by the principles of
                          the common law as they may be interpreted by the courts of the
                          United States in the light of reason and experience
       3. Rooted in supremacy clause of the Constitution
ii. If there is no federal directive on point…
       1. In substantive issues of great state concern, state law holds
       2. In substantive areas of great federal interest, federal law applies
       3. In grey areas that could be substantive or procedural, use Hanna/Byrd Analysis
          to establish the rule
              a. States interests V. Affirmative Countervailing Considerations – the
                 forum shopping and inequality ingredients of the OD effect
              b. Consider the twin aims of Erie
                       i. Avoid forum shopping
                             1. At outset of case, if the federal case ignores state law, will
                                it cause litigants to flock to federal courts (forum
                             2. If yes, then apply state law
                      ii. Avoid the inequitable administration of law
              c. Broad Pockets v. Ad Hoc?
                       i. The original Hanna/Byrd approach focused on adhering strongly
                          to stare decisis and to do the balancing in broad “pockets of law”
                             1. If the interests were found to be skewed in one of those
                                pockets, the court could narrow the pocket and redo the
                             2. very rarely would the court redo the balancing for the entire
                             3. this helped establish predictability and certainty
                      ii. After Gasparini, Ad Hoc balancing rules again
                             1. sided with state interests in applying their tort reform, but
                                also sided with federal interests in appellate review
                             2. Overall result is very narrow holdings
                             3. i.e. In Byrd, judge/jury pocket applied federal law, here, NY
                                state law wins
                                       4. Stare decisis not very important because cases are
                                          decided case-by-case with balancing
                       d. Erie applies to both diversity and federal question
                               i. Even though in federal question cases, federal interest is
                                  presumably high, if state interest is high enough, can swing to
                                  applying state law
                               ii. i.e. mortgage law arising in bankruptcy proceedings
                4. What if state law wins? (called an Erie case)
                       a. Apply the appropriate state law
                       b. What if there is no state law on point?
                               i. Federal court should fabricate state law as if it were sitting as the
                                  forum state‟s highest court, taking into account all the precedent
                                  and other data that court would
                               ii. Or if possible, it could certify
                5. What federal law wins? (called a Clearfield case)
                       a. Constitution or a federal law if on point
                       b. Otherwise, (specialized) federal common law
                       c. Clearfield Trust v. US
                               i. Holding: recovery in forgery case is allowed even though there
                                  was a delay according to federal common law
                       d. United States v. Kimbell
                               i. Issue of priority of liens (state v. federal)
                               ii. Federal interest was stronger so federal law was to apply
                              iii. But there was no applicable federal law, so had to look at the
                                   state‟s law
                              iv. Federal courts should adopt state laws when there is no
                                  federal law
                                       1. unless:
                                               a. there is a need for uniformity, or
                                               b.    there are relatively important federal interests
                                                    calling for a particular content to the federal law
                               v. Adoption versus Application
                                       1. Adoption of state law as federal, which differs from Erie
                                          mandatory application of state law:
                                               a. federal court can choose the appropriate state from
                                                  which to adopt law
                                               b. Federal court can ignore state law that conflicts
                                                  with federal interests. Consequently, federal courts
                                                  adopting state law as the federal law can alter or
                                                  ignore part of all of the relevant state law if it
                                                  actually impinges on federal interests in the
                                                  particular case at bar
e. Precedents:
         i. State law applies in statute of limitations cases. Guaranty Trust v. York
f.   Hypo: diversity case, class action suit, under FCRP rule 23, it meets requirements of class
     action, but under state law, it does not equal a class action, what to do?
              i. is there a federal directive on point? - yes, rule 23 is on point, so use Hannah prong of
                 analysis, Erie analysis not necessary
             ii. So it governs, as long as its valid (arguably procedural)
      g. Hypo2: MO legislature is worried about malpractice premiums going up because doctors are
         leaving, so MO passes a statute which provides that you must go to arbitration hearing before
         filing malpractice suit; citizen of IL goes to MO and suffers malpractice; files diversity case
         against MO doctor in MO, does federal judge have to apply state arbitration procedure
              i. is there a federal directive on point? No.
             ii. is it obviously substantive? No
             iii. is it outcome determinative? Not clearly.
             iv. balancing the interests under bird
                       1. Is there a federal interest in doing it differently?
                               a. Jury trial right is not obviated as in Bird
                               b. Different from Bird
                       2. Is there a state interest here?
                               a. There is a huge state interest here – public health, etc…
                               b. Different from Bird
             v. Twin aims of erie
                       1. Forum shopping? – definitely, P‟s will want to go to federal court if it doesn‟t
                          adopt state law
                       2. Inequitable administration of law – because only non-MO plaintiffs can take
                          advantage of this law, whereas MO plaintiffs are still bound by the law
             vi. So likely that federal court should apply state law
XV.   Reverse Erie
      a. Hinderlider
              i. In interstate waters problem, federal common law governs even in state court
             ii. Same is true in federal court according to Illinois v. City of Milwaukee
             iii. No forum shopping if state courts apply federal law also
      b. Dice
              i. Release in FELA case
                       1. clearly, federal law governs in state court under Hinderlider
                       2. thus, a large part of federal law – be it constitutional, statutory, or common law –
                          carries down to state court
                               a. tax cases, FELA cases, etc…
                       3. this is mirror-image of Erie: on a state claim in federal court, state law would
                          govern release
                       4. here: on a federal claim in state court, federal law governs release
             ii. Reverse-Erie Doctrine:
                       1. same balancing of all state and federal interests
                       2. uniformity factor weighs in favor of applying federal law in state court, aiming to
                          get the same result in state court as would eventuate in federal court
                       3. O-D effect accordingly subtracts from forum‟s interests in both situations
                               a. Here, it would subtract from state‟s interests
             iii. Judge/jury issue
               1. Who gets to say this goes to judge/jury in state court
               2. Federal law governs in state court, because jury is an essential part of FELA
                       a. But in Byrd, federal law applies in federal court with regards to judge/jury
               3. Problem: if Erie and reverse-Erie were true mirror-images, wouldn‟t forum‟s own
                  law govern procedure in both federal and state court
               4. Because reverse-erie is more intrusive than erie – leans heavily towards federal
               5. Byrd and Dice are asymmetrical in regards to how law flows from federal to state
                       a. More federal law flows into state courts than state law flow into federal
c. Brown
        i. Pleading rules
        ii. Federal law governs in state-court FELA actions
       iii. Problem: would federal court apply state pleading rules on a state claim?
               1. no, Hanna already addressed this
       iv. Also asymmetrical
        v. Problems arise as the balancing gets close, that is, as one moves toward procedural
d. Norfolk
        i. Grant or denial of jury instruction
        ii. In state-court FELA action, federal law controls
       iii. In any federal court case, federal law seemingly controls
       iv. In sum, reverse-erie seems more willing to export federal procedure into state court on a
           federal claim than erie is willing to import state procedure into federal court on a state
e. Fedler
        i. Do you have to comply with state notification rule?
               1. No
        ii. State interest: to protect government from lawsuits
       iii. Federal interest: to protect civil rights
       iv. If you let state laws govern in state law, then OD subtracts from state interests
        v. Federal interest is found to predominate, so federal law applies
f.   Johnson
        i. Appealability issue
        ii. The court drew a limit on federal intrusion into state-court procedure
       iii. State court can apply its finality rule, even though federal court allows interlocutory
g. Synthesis
        i. Explanation gets into the idea of preemption
        ii. Basic idea of preemption is in the supremacy clause
       iii. If federal law address a point in constitutional authority, it displaces state common law
       iv. Preemption and judicial choice of law turn out to abut on a continuous spectrum
               1. Judicial choice of law is a type of preemption
     v. This spectral doctrine prevails in state court and in federal court, and throughout
        government and in primary conduct
     vi. Even though Felder and Johnson sound like preemption cases, they are really erie
    vii. Brown, Dice and Norfolk are really preemption cases
             1. Say that jury is really key
             2. The asymmetry comes strictly from preemption
                     a. its asymmetry comes from supremacy clause
    viii. Conclusion of reverse-erie
             1. Apply balance ad-hoc, on a case by case basis
             2. But after normal preemption analysis
                     a. balance only if there hasn‟t been preemption
     ix. Hanna-sibbach is kind of a preemption doctrine
             1. If there was a FRCP on point, then preempts state law
             2. Then under Hanna-Erie, apply balancing if preemption does not apply
     x. Simplicity
             1. All these cases involve basically the same problem: the appropriate reach of
                state and federal laws
                     a. Erie, role of congress, federal common law, preemption
             2. Any such problem has balancing of interests as the proper answer
     xi. Ubiquity
             1. Every question of law in federal system is preceded by a choice of law: state or
             2. Thus erie doctrine, broadly viewed, is the foundation of federalism – that is, of
                our governmental and legal system
    xii. Lawmaking
             1. Every would-be lawmaker first faces the task of resolving the choice of law
             2. If a superior lawmaker has not already made the choice, the lawmaker basically
                uses an erie/clearfiled type of balance to choose
             3. If the choice is in favor of the lawmaker‟s sovereign, then the lawmaker makes
                law by generating its content
    xiii. Law-applying
             1. Every would-be law applier first faces the task of resolving the choice of law
             2. An authorized lawmaker make have already made the choice, by constitution,
                statute, or regulation
             3. If not, the law-applier uses the Erie/Clearfield type of balance as a court would, to
                predict what the court would do
    xiv. Significance
h. Summary
      i. Diversity cases
             1. Erie starts looking like a diversity case doctrine
     ii. Same problems arise in Nondiversity cases

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