Civil Procedure Sherry Fall 08

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Civil Procedure Sherry Fall 08 Powered By Docstoc
					Part One: From P’s Perspective

Subject Matter Jurisdiction
Court must have jx over the claim.
   I.     Methods of obtaining
          a. Federal question (§ 1331)
          b. Diversity of Citizenship (§ 1332)
          c. Supplemental (§ 1367)
          d. Removal (§ 1441) – not actually jx, but a procedure
   II.    General Rules
          a. Cannot be waived: FRCP 12(h)(3) – court must dismiss case if no SMJ; also applies at appellate
          b. Must be conferred by two sources:
                   i. Article III § 2 of the Constitution
                  ii. Statute (see above)
          c. Burden of proof: always on the party seeking jx
Federal Question Jx
   I.       28 U.S.C. § 1331 – The district courts shall have original jx of all civil actions arising under the
            Constitution, laws, or treaties of the U.S. – basically when the case arises under any kind of federal
   II.      “Well-pleaded Complaint Rule” – P has to allege federal law problem in the complaint – federal
            question must be necessary to a well-pleaded complaint (Mottley); can’t be raised in the answer; fed
            question has to be necessary to the individual count (Merrell Dow); parties can’t agree to SMJ if
            courts don’t have it
            a. Congress could change Mottley rule and allow jx for fed claims in defense, but they won’t
            b. Lousiville & Nashville Railroad Co. v. Mottley (U.S. 1908) (pg. 527)
                     i. P sued D with assumption that D would raise federal statute as defense
                    ii. Court held there was no fed question jx because the federal question was not integral to
                        P’s CoA, as pleaded in the complaint
                   iii. Mere anticipation of federal defense or even raising federal defense in D’s answer is not
                        enough to confer FQ jx – P’s original cause of action must arise under the Constitution
                   iv. TEST: If federal issue was removed from complaint, could it withstand 12(b)(6) motion?
                            1. Yes – federal question not “necessary” to well-pleaded complaint
                            2. No – FQ necessary, thus FQ jx
            c. Even if fed question is necessary to well-pleaded complaint, when is it sufficient to confer fed
     Case                                     Cause of Action (CoA)      Applicable Law    Jx
    Smith v. KC Title (1921)                  State                      Federal law       Yes
    Moore v. Ches & Ohio RR (1934)            State                      Federal law       No
    Shoshone Mining v. Rutter (1900)          Federal                    State             No
    Merrell Dow v. Thompson (1986)            State                      Federal law       No
    Grable v. Darue (2005)                    State                      Federal law       Yes
   III.     Chart explanations:
            a. Federal law must be at issue – i.e. why Shoshone doesn’t have jx

      b. Don't have to have a federal cause of action - state cause with federal action embedded is
          sometimes ok (like Grable and Smith; unlike Moore and Merrell Dow)
      c. Smith – right to relief depends on the construction or application of federal law, so FQ jx
      d. Moore – no FQ jx – S.Ct. could have said FQ was an anticipated federal defense, but instead said
          the complaint alleged violation of federal act constituting per se negligence – a suit that brings
          within the purview of the state statute a breach of duty imposed by federal statute does not arise
          under laws of U.S.
IV.   Merrell Dow Pharmaceuticals Inc. v. Thompson (U.S. 1986) (pg. 533)
      a. Satisfies Mottley, even though Ct. App. says it doesn't – interpretation of federal law necessary to
          that count
      b. Reconciling Smith and Moore: Federal issue was substantial in interpreting state tort claim in
          Smith, whereas violation of federal statute didn’t alter state tort law interpretation in Moore
               i. "Substantial" test is only true for federal questions embedded in state causes of action
      c. Holding:
               i. Not substantial: Congress didn't intend fed jx because there was no private federal cause
                  of action; for misbranding/mislabeling, individuals can't bring federal lawsuit - only
                  government can bring that kind of lawsuit [majority]
      d. Problems:
               i. Can't equate jx with lack of private cause of action; Congress wanted FDA (the
                  appropriate govt. agency) to handle issues - uniformity, flexibility, expertise
                       1. FDA would bring this suit in fed court, but Merrell Dow says this will have to be
                           litigated in state court
              ii. Majority says that if Congress wanted FDA to handle these cases, FDA would preempt,
                  so can't bring individual lawsuits - seems to have gotten it backwards
             iii. Brennan’s dissent - as long as you're not arguing preemption, FDA cases will always go
                  to fed court
      e. Possible tests:
               i. If no private cause of action, then no fed question jx [Majority] (Congress controls
                  changes to §1331, but won’t change it)
              ii. If there's a fed question embedded in state CoA, always gives rise to fed jx [Brennan
                  dissent] (Congress won’t change §1331, so better for state legislatures to change rules)
             iii. Case-by-case assessment – no clear, bright line standard [basically Grable] (Congress
                  won’t change §1331, so better for courts to control)
                       1. Brennan criticizes because "infinitely malleable" - can make any case fit anything
             iv. Never fed jx over a federal question embedded in a state cause of action [Thomas in
                  Grable, and Holmes dissent] (Congress won’t change §1331, so better for courts to
V.    Grable and Sons Metal Products, Inc. v. Darue Engineering and Manufacturing (U.S. 2005) (pg.
      542) Grable sued Darue in state court for quiet title action (state CoA), interpreting notice of seizure
      statute (federal issue)
      a. Congress didn’t create federal CoA, so no jx under Merrell Dow; but Merrell Dow didn’t address
          whether presence of federal CoA was sufficient to confer federal SMJ, only said what was
      b. Although there’s no private cause of action, Court says there’s fed jx
               i. Rejects Merrell Dow: TEST: Does a state-law claim necessarily raise a stated federal
                  issue, actually disputed and substantial, which a federal forum may entertain without
                  disturbing any congressionally approved balance of federal and state judicial
                  responsibilities? (pg. 544) QUOTE ON EXAM. THIS IS THE LAW. USE IT
                  INSTEAD OF MERRELL DOW.
                          1. Can use MD as an example of when the Grable test wouldn’t confer jx – arguing
                               by analogy; Can use MD or the arguments we made in class (or both) to criticize
                               Grable if appropriate for the question
           c. Grable is the test only for cases in which FQ is embedded in state-law claim. When FQ stands
              alone, there is fed jx unless the federal claim “is so attenuated and unsubstantial as to be
              absolutely devoid of merits”
           d. Grable is basically the case-by-case test the court rejected earlier
           e. Which test is right?
                  i. We know #2 is wrong. Who should get the last word between the courts and Congress?
                          1. Congress because they're elected representatives; §1331 is the grant of fed jx
                               (statutory construction)
                          2. Although Merrell Dow majority is weird, they're probably right because they give
                               Congress the power to decide, as long as Congress knows that it's closing off fed
                               jx when it doesn't grant a private cause of action
   VI.     Hypos
           a. Sue Sherry and allege that taking final exam violates constitutional rights AND the exam
              breaches contract of law school
                  i. Fed question not necessary to well-pleaded complaint because could still not have case
                      dismissed with just state claim and could even win without fed question complaint BUT
                          1. Ct. App. 6th C. in Merrell Dow held that fed question is not necessary because
                               there are other non-federal claims that would withstand motion to dismiss
                          2. S.Ct. - erroneous - fed question has to be necessary to the individual count
                          3. Have to go count-by-count because otherwise would never be able to have
                               multiple counts since there would always be other counts to prevent the case from
                               being dismissed
           b. Are any of the federal claims necessary to that count?
                  i. Yes, the fed question is necessary to the count, so fed jx in this hypo
                 ii. Would be supp jx over count 2 because arises out of the same transaction or occurrence
           c. You’re raising a fed claim. Can you sue in state court?
                  i. Yes, there is concurrent jx in state and fed courts, with exception of antitrust, patent, and
                      ERISA cases (Congress has conferred exclusive fed jx)

Diversity Jurisdiction (§1332) – if parties are completely diverse and amount in controversy >$75,000
   I.      If not diverse or amount too little:
           a. P can amend the complaint to fix the problem and satisfy jx requirements
           b. Court can dismiss the entire lawsuit; P has to refile in state court or refile jxlly correct suit
           c. Court can also dismiss just the non-diverse parties
   II.     Generally
           a. Burden of proof is on party attempting to create diversity
           b. Standard of review – clearly erroneous because mixed question of law & fact; district court
               unlikely to be overturned
           c. In close questions, narrow interpretations usually leans against diversity
           d. Preponderance of the evidence is a slightly higher standard for jx than for a lot of other issues
   III.    Diversity of Citizenship
           a. Complete diversity – standard from Strawbridge v. Curtiss (1806) – can’t have parties from
               same state on either side of the “v.” – rule for cases brought under § 1332(a)
                    i. Some minimal diversity statutes have been enacted, including with class actions
           b. Domicile requirement – 2 factors:
                    i. Physical presence
        ii. Intent to remain (no definite intent to leave)
       iii. If no clear presence or intent to stay, revert to old domicile
c.   Sheehan v. Gustafson (8th Cir. 1992) (pg. 550) G moved to dismiss for lack of SMJ (12(b)(1)
     motion); Ct. dismissed because both citizens of NV; Ct. App. Affirmed
         i. Ct. App. didn't find decision was clearly erroneous
        ii. Cts. App. Tend to affirm these cases unless there is something totally wrong
       iii. S had the burden of showing G's citizenship in NV
d.   Hypos
         i. S and G are both MN citizens and sue in state court; G wants to remove to fed ct.
                1. G has the burden of proving his NV citizenship
                2. If facts are borderline, may change where person is domiciled depending on who
                    has the burden of proof
                3. Err against jx - should be strictly construed
                4. Burden of proof and strictly construed play in at both d. ct. and ct. app.
                    Levels; clearly erroneous only applies at ct. app. level
        ii. Lundquist (pg. 552): P (FL or NH) vs. D (NH)
                1. FL: permanent home; NH: summer home; votes there and has driver's license
                2. P has burden of proof here; strictly construe against jx, so P is from NH
                3. Ct. App. Would affirm
       iii. Sheehan sues G in MN state court now; does MN state court have personal jx?
                1. Does G have minimum contacts with MN?
                2. S could still win on MN fed or state court having personal jx over G (and if there's
                    a federal question, then there could be fed question jx)
       iv. Pg. 554 Hypos
                1. Was a MN citizen; moved to TN at 10; now a student in PA
                        a. Presence seems to be PA
                        b. No intent to leave PA, but no intent to remain in PA (these tests are
                            supposed to be the same - this is a rare gap)
                        c. Where is she paying tuition? (not a factor here - but might be)
                        d. Presume college students don't intend to remain, unless we see evidence
                            that they do; different with adults (common sense says most people who
                            move to a new state, intend to remain - law students are a hard call)
                2. Start with NY
                        a. Has not changed it yet - domicile is still NY because has not yet left
                        b. Until you reach your new home state, haven't changed domicile
                3. Court could go either way - he claims no intent to remain and really doesn't want
                    to stay in IL; definitely present in IL, but tricky on intent to remain or no definite
                    intent to leave
f.   Corporate citizenship (§1332(c)):
         i. Any state where it has been incorporated (could be multiple states) AND
        ii. Principle place of business (only one)
g.   Hypos
         i. - website, sells books, but no warehouse
                1. Peterson v. Cooley (pg. 555): nerve center test vs. place of operations test
                2. Nerve center - corporate HQ, where officers direct, control, and coordinate
                3. Place of ops – bulk of corporate activity takes place there
                4. Courts use whichever one makes more sense - interpret differently
                ii. Corp. has TN HQ; 5 plants in AR; 5 plants in AL
               iii. When evenly split, use nerve center because the plants don't get us anywhere OR could
                    count up the employees in each plant OR the production in each plant
   IV.    Amount in controversy
          a. Has to be MORE than $75K
                 i. NEVER look at the counterclaim, even if added to P's claim or on its own gets you to
                    >$75K - only look at the complaint (comes from Mottley)
          b. Aggregation rules
                 i. You can aggregate amounts when:
                        1. One P has several claims, related or unrelated (might have other SMJ problems,
                            but not related to money)
                        2. Multiple Ps suffer a “single, indivisible harm” (very rare – property/lease) or
                            when Ds are jointly and severally liable (joint tortfeasors, more common)
                ii. You can’t aggregate with:
                        1. Multiple Ps with separate and distinct claims – each P must want >$75K
                        2. Multiple Ds who are not jointly and severally liable – each D must be sued for
          c. Del Vecchio v. Conseco, Inc. (7th Cir. 2000) (pg. 558)
                 i. Must look to the complaint to determine amount; counterclaim doesn’t matter
                ii. Despite what you ask for, court must determine that you can recover more than $75K
               iii. Dismissal warranted only if it’s beyond a legal certainty that P cannot recover >$75K
                        1. Most courts put the burden on D to prove P can’t recover enough or restate the
                            burden so P has to prove she could get >$75K
               iv. Punitive (psychological) damages are harder – courts take them on face value
          d. Hypos
                 i. Sue for $100K but only get $40K - is the judgment vacated?
                        1. Look at the amount at stake at time of filing - if > $75K, judgment not vacated
                        2. If get less than $75K, P may have to pay court costs (not atty's fees)
                ii. Sue for $100K; D counterclaims for $75K, so P only gets $25K at the end of the day
                        1. Has to be computed without regard to the counterclaim - P doesn't have to pay
                            costs (this is what 1332(b) is about)
               iii. If P asks for $100K but D says contract is only worth $50K
                        1. Take jx-seeker's (usually P) word of amount unless it is a "legal certainty" that P
                            can't get >$75K

Supplemental Jurisdiction – claims transactionally related to claims the court already has jx over
   I.    General
         a. Fed courts can have jx over claims for which they do not have original jx
         b. Must be a jxal “hook” that confers either FQ or diversity jx over at least one of the claims
         c. Three types:
                 i. Ancillary: typically for claims made by parties other than P; i.e. with 13(g)
                    counterclaims, 14(a) impleaders, which need not and often do not have original jx; claims
                    made by Ds and 3rd-party Ds to protect their interests (compulsory counterclaims,
                    crossclaims, 3rd-party claims, etc.)
                ii. Pendent Claim: additional claims asserted by P against D
               iii. Pendent Party: claims asserted by additional Ps or against additional Ds
   II.   Pre-§ 1367
         a. Gibbs v. United Auto Workers (U.S. 1966) (pg. 564)

               i. P sued in fed ct. for NLRA violation (federal) and state contract claim; ct. allowed supp
              ii. Rule: state and federal claims must derive from “a common nucleus of operative fact”
                  (broad construction of “same case/controversy”)
             iii. Pendent jx need not be exercised in every case in which it exists – discretionary
             iv. Federal jx requires constitutional authority and congressional authorization to use that
       b. Aldinger v. Howard (U.S. 1976) (pg. 567)
               i. P sued county officials on federal § 1983 claim and the count on state claim (§ 1983
                  didn’t allow suing counties then, but does now); ct. didn’t allow supp jx
              ii. Rule: if Congress expressly or implicitly negates ability to sue a party, no pendent-party
                  jx (absence of express provision allowing it = implicit negation of it); statutory language
                  is important
             iii. Presume jx unless Congress says no
             iv. Came from Article II (case/controversy); Congress has to grant it, but no statute; maybe
                  there was inherent authority under § 1331, § 1332
       c. Owen Equipment & Erection Corp. v. Kroger (1978) (pg. 568)
               i. Iowa P sued Nebraska D who impleaded Iowa 3rd-party D; P brought unrelated state
                  claim against 3PD
              ii. Rule: P must have independent jx to hear this claim because allowing it would
                  undermine complete diversity of citizenship
                      1. Prevents Ps from playing games, getting backdoor diversity, etc. (JOINDER)
                      2. 3PD was dragged into the lawsuit, so P shouldn’t be allowed to sue unless 3PD
                          sues first
             iii. § 1332 - Congress requires complete diversity (Strawbridge interpretation) thereby
                  implicitly negating pendent-party jx here
       d. Finley v. United States (U.S. 1989) (pg. 569)
               i. Similar to Aldinger – P brought federal claim and joined state claim against municipality.
                  S.Ct. upheld Aldinger and refused to extend Gibbs to include pendent party jx
              ii. Rule: presume there’s no jx unless Congress says there is (changed Aldinger)
             iii. §1331 and §1332 - reinterpreted the statutes for pendent-claim and pendent-party jx
             iv. After Finley, still pendent-claim jx unless Congress negates it (Gibbs), but no longer
                  pendent-party jx unless Congress creates it (Finley)
              v. People think court might overrule Finley - reinterpret §1331 and §1332 to say no
                  pendent-claim jx unless Congress creates it
III.   28 U.S.C. § 1367: Congress codified supplemental jx in 1990
       a. § 1367(a): Still common nucleus of operative fact - has to be part of "same case or controversy"
          (language from Constitution, authorized by Congress); includes claims involving joinder or
               i. Can include claims as broadly as possible, as long as it's ok under Constitution – same
                  language as “common nucleus of operative fact” and “same transaction or occurrence”
              ii. Effectively overrules Aldinger, which implicitly didn’t allow pendent party jx; now goes
                  for Finley “explicit creation by Congress” test; in contrast to earlier doctrine, Congress
                  must explicitly negate the ability to bring in pendent party in order to disallow it
             iii. Tough question re: Rule 13 CCs: courts allow supp jx for 13(a) compulsory
                  counterclaims (because transactionally related), but usually do not allow 13(b)
                  permissive. § 1367 changed the scope of jx and allows supp jx over some permissive
                  CCs, but they have to be just unrelated enough (2 circuits have allowed).

      b. § 1367(b): Under diversity jx, no supp jx over claims by Ps against persons made parties
          under Rule 14, 19, 20, or 24, or over claims by persons proposed to be joined as Ps under
          Rule 19, or seeking to intervene as Ps under Rule 24, when exercising supp jx over such
          claims would defy diversity jx.
      c. § 1367(c): Courts may decline to exercise supp jx for any number of reasons.
IV.   Exxon Mobil Corp. v. Allapattah Service, Inc. (U.S. 2005) (pg. 570) Whether fed ct. in diversity
      action can exercise supp jx over additional Ps whose claims do not satisfy the minimum amount-in-
      controversy requirement.
      a. Holding: Only one P must satisfy the minimum amount, and §1367 does authorize exercise of
          supp jx over claims not meeting the requirement, as long as they arise out of the same
          case/controversy; because §1367 didn't explicitly say that Ps joined under Rule 20 are excluded,
          “no supp jx over claims by Ps against persons made parties under Rule 20”
               i. Distinguishes jxal amount and complete diversity; former doesn’t destroy original jx, but
                  latter contaminates it.
      b. Reasoning:
               i. “Incomplete diversity destroys original jx with respect to all claims, so there is nothing to
                  which supp jx can adhere”
              ii. Amount in controversy does not extinguish whole suit because a claim that “falls short of
                  the minimum amount does nothing to reduce the claims that do meet the requirement”
      c. Implications:
               i. Contamination Theory: Incomplete diversity of citizenship, but not amount in
                  controversy, MAY contaminate the lawsuit with respect to all claims
              ii. Rule 20: Congress’s omission of Rule 20 Ps from list of exceptions in 1367(b) may have
                  been an unintentional drafting gap; if so, Congress, not the courts, should fix it
             iii. Overruled Clark/Zahn – all Ps do not need to meet amount in controversy
             iv. Allapattah basically a nightmare for lower courts - was a Congressional drafting mistake,
                  and they have considered changing it, but haven't done it yet
V.    Hypos after § 1367
T1 ($100K) + T2         Jx over both (Allapattah) - 1367(b) - join under rule 20
($30K) v. K
T1 ($50K) + T2          NO - still have to have original jx over at least one of the claims; still can't add together
($30K) v. K             two Ps to reach min. jxal amt.
T1 v. K1 ($80K) + K2    Original jx over K1; 1367(a) same case/controversy; is there original or independent jx
($40K)                  over at least one claim?; 1367(b) these are claims by Ps against persons made parties
                        under Rule 20, so NO SUPP JX; Court could dismiss both K1 and K2, but usually just
                        dismiss claim against K2 which can be brought in state court
T1 ($80K)+ T2 ($40K) Supp. Jx; Allapattah
v. K
T1 v. K1 ($80K) + K2    There's independent jx, so no need for supp jx
T1 ($80K)+ T2 ($40K) Both Ps and Ds are joined under Rule 20; no jx over either of them; seems problematic
v. K1 + K2           because if Allapattah had gone the other way, would have said no piggybacking;
                     however, the majority says Ps can join together and sue even if one P's amt. is not high
                     enough, but can't bring against joined Ds, even if amts. are correct - inefficient; odd that
                     when you add a D, deprive the court of jx; most courts waive their hands at this and
                     allow it, citing Allapattah

K ($80K)+ T1             (Not completely diverse under Strawbridge. ALL Ps AND Ds JOINED UNDER 20
($80K)v. T2              MUST BE DIVERSE); technically, is by a Rule 20 party against a D (not against a Rule
                         20 joined party), so not barred by 1367(b); Allapattah majority says it's not allowed
                         because there would be no original claim over which the court has jx (contaminates);
                         court makes distinction between diversity (no jx over the whole action if tainted by
                         incomplete jx) and amount-in-controversy parts (can be supp. Jx; lesser standard?); court
                         should dismiss the entire action if incomplete diversity, BUT had always said that
                         you could just dismiss the incomplete party… No one has made sense of this yet
T1 v. K (amends to       Incomplete diversity and against parties joined by Rule 20
add T2 as a party) OR
T1 v. K + T2
K v. T1; T2 wants to     1) Orig. jx over disputed claim? No (not T2 over T1)
intervene as P under     2) Is there any claim with orig. jx? Yes (K v. T1)
Rule 24                  3) 1367(a) – has to be same case/controversy
                         4) 1367(b) exception? Can’t intervene as P under Rule 24
                         So no supp jx
T1 v. K; T2 wants to     1) Orig. jx over disputed claim? No (not T1 over T2)
intervene as D under     2) Is there any claim with orig. jx? Yes (T1 v. K)
Rule 24                  3) 1367(a) – has to be same case/controversy
                         4) 1367(b) exception? Claim by P against party joined under Rule 24
                         So no supp jx
K v. T1; T2 wants to     Orig. jx over all claims – no need for supp. Jx
intervene as D under
Rule 24
K v. T1 + T2             1) No (not T1 over T2)
(interpleaded under      2) Yes
Rule 22)                 3) Yes
                         4) §1367 says nothing about interpleader or Rule 22; under Allapattah, it’s allowed
                         because it’s not prohibited
K v. T1 + T2             1) No (not T1 over T2)
(impleaded under         2) Yes
14(a))                   3) Yes, derivative claim
                         4) 1367(b) says nothing about Ds against impleaded parties – traditional supp jx from
                         joinder as long as transactionally related; K not allowed to sue T2 because of Kroger
T1 v. K who              1) There was jx when we did joinder, but not now
counterclaims; T1        *Claim by P against Rule 14 party is not allowed – some courts follow this, BUT most
impleads T2 under        will use Congressional intent to say there’s jx here (anyone who’s impleaded has supp jx)
14(b)                    *T1 is D on the counterclaim, so §1367(b) technically doesn’t prohibit, although the
                         statute kind of does
T1 v. K + T2             1) No
(impleaded under Rule    2) Yes
14); T1 raises related   3) Yes
claim against T2         4) 1367(b) prohibits it by codifying Kroger
T1 v. K + T2           1) No
(impleaded under Rule 2) Yes
14); T2 raises related 3) Yes

    claim against T1          4) 1367(b) doesn’t prohibit it; Rule 14 party suing P is allowed, not trying to get around
                              jxal rules; T2 was dragged in, couldn’t predict his suit
    T1 v. K, who impleads     1) No
    T2; T2 raises a related   2) Yes
    claim against T1; T1      3) Yes
    wants to bring            4) Statutory language seems to prohibit, but old rules allowed compulsory CCs because
    compulsory CC against     different than Kroger; most courts go with traditional rules on this; might also argue
    T2                        that a counterclaim is not a claim and therefore does not fall under 1367(b)

Removal Jx – procedural
  I.     If case could have been brought in fed court originally, defendant can choose to remove to fed court;
         P can’t take it back out of fed court; if P brings the case in fed court, D can’t remove to state court
         a. P will choose court she prefers; D chooses court she prefers - bias for fed court because if either
              party wants to be in fed court, will be in fed court
         b. All basic jurisdictional rules apply, plus:
                    i. Only Ds can remove; Ps can't - circuits split on whether 3rd-party Ds can remove
                   ii. Diversity D cannot remove a case that's filed in his own state court (as long as 1 D is in
                       own state court) - if federal question, you can remove
                           1. Removal is to protect you from state court discrimination - if you are a citizen in
                               the state in which you are sued, you're not suffering discrimination
                  iii. D has to remove within 30 days of service of the complaint if there's jx, but if fed jx
                       attaches later (if complaint has been amended to confer fed jx or someone discovers
                       there's diversity), you have another 30 days
                           1. Can't remove a diversity case after a year no matter what
                           2. Ps sometimes will write a complaint for <$75K and file it in state court - will then
                               amend to $1 million after a year
                  iv. All Ds have to consent to removal and the whole case had to be removed - no partial
  II.    Congress doesn't trust state courts with:
         a. Federal issues/laws - §1331 and Article III
         b. Non-citizens (diverse parties) - might favor one party - §1332 and Article III
SMJ Problem
  1. None of them can remove because the suit couldn't have been brought in federal court - Mottley Rule -
      don't look at counter claims - only look at original suit
         a. Also incomplete diversity (need both reasons on exam)
  2. B - starts in FL - did he change domicile when he moved to MN?
         a. Presence (in MN) plus intent to remain (no definite intent to leave)
                 i.    Applied for in-state tuition (residence required); might have moved to practice there (as
                       law students often do)
                ii.    Presumption against federal jx
         b. But, might just want cheap tuition for 3 years - would want to know what requirements for in-
              state tuition are
                 i.    Presumption that college students are residents of home states, but might be different for
                       law students
  3. Diversity:
         a. If B is FL citizen: yes for suit against A; B is FL or MN citizen: yes for suit against C
         b. Amt. in controversy: legally certain that he can't recover more than $71k for nightmares?
              Because it's not legally uncertain that he couldn't recover $4k for the car
                  i. Might depend on similar cases - but we don’t have these
                 ii. Shrink - evidence of bad psychological injury
                iii. Law school performance changed?
                iv.  Everybody has nightmares - artificially inflated - easy to allege and hard to prove or
                     disprove (just like punitive damages in Del Vecchio)
   4. D can't remove because it's in his state court
   5. D+A v. C
          a. There is complete diversity
          b. But you can't aggregate the two Ps' claims - Allapattah doesn't change that rule
   6. C+A v. D
          a. Incomplete diversity
          b. Allapattah - court should dismiss the whole case
                i.   No original jx because lack of complete diversity contaminates jx
          c. Will the judge dismiss the whole suit? Probably will just dismiss A's claim
          d. Another issue: amount in controversy - A only asking for $15K
                i.   C has enough, so there's original jx, but under Allapattah, court has supplemental jx over
                 1. Go through the 4 steps (incl. 1367(a) and (b))
   7. D v. E
          a. Federal question jx, so incomplete diversity and <$75K don't matter
          b. If D sued in state court, can E remove?
                i.   Yes, because limitations on Ds removing in home state court doesn't apply - no longer
                     worried about discrimination against state D; we're worried about discrimination against
                     federal law/interpretation of federal law
Drawing from top of Problem notes

Personal Jurisdiction
You must ask whether there is jx over the parties (usually the D, including 3rd-party Ds) for all cases, state and
federal; You must ask whether venue is proper in federal cases. (Pg. 414)
General Framework
  I.   3 Types of jx over the parties:
           a. In personam: jx over D’s person
           b. In rem: jx over D’s property in forum state; property is attached and suit is about the property
           c. Quasi in rem: jx over D’s property in forum state; property is attached but suit is not about the
 II.   3 Requirements for personal jx
           a. Statutory authority (long-arm statute), and
                   i. Each state has a long-arm statute which allows it to exercise jx over a non-resident (start
                      personal jx analysis with this because periodically, will find that a statute does not confer
                      jx); state long-arm statute must comply with 14th Amendment; state statutes generally
                      allowed to extend up to what Due Process Clause prohibits
                  ii. Federal long-arm statute is FRCP Rule 4(k)(1)(a) (must comply with 5th Amendment)
           b. Notice, and
           c. Constitutional authority (Due Process), which can be satisfied by:
                    i. Citizenship in the forum state, or
                   ii. Service in the forum state, or
                 iii. Consent (including by waiver), or
                  iv. Sufficient contacts, plus fairness
III.   2 kinds of Personal Jx
           a. Specific: the CoA arises out of D’s contacts with the forum state
                    i. D must meet “minimum contacts” standard
           b. General: CoA doesn’t arise out of D’s contacts with the forum state
                    i. D must meet “systematic and continuous” standard
IV.    Waiver/Consent
           a. Personal jx can be waived; if Rule 12(b)(2) motion not raised at the right time, personal jx is
           b. Consent to jx: CA co. ships to TN and doesn't appear for the suit; you get a default judgment
                    i. You've won a judgment against a CA co. but they do nothing in TN; take the TN
                       judgment to CA and sue there to get the judgment enforced (full faith and credit)
                   ii. CA court wouldn't have to enforce judgment if TN court didn't have jx in the first place
                       (Hanson v. Denckla; Pennoyer v. Neff)
                 iii. Risky to challenge on the part of D because you can't try the case on the merits - if later
                       court decides that earlier court did have jx, you're screwed
                  iv. Special appearance/12(b)(2) motion is the way to avoid the above problem
                   v. P consents to jx in the forum state in which he brings suit for his own claims AND any
                       claims D brings against P (compulsory or permissible)
                           1. All corporate and individual citizens of a forum state are subject to jx in that state
                           2. If D impleads 3rd party, D consents to jx for CCs 3rd party brings against D; but D
                               doesn’t consent to the original claim – case could still get dismissed and
                               impleader would go away if no personal jx in original case
                  vi. If you don’t show up at all, have not consented - can challenge collaterally later
                 vii. If D does show up and challenge, is bound by whatever the court decides - can't relitigate
                       the question of personal jx anywhere
                viii. Consent by contract: pg. 496, even if typeface is very tiny - very strictly construed -
                       whatever the contract says goes
 V.    Notice
           a. Personal jx requires that court has power to require parties to submit to jx and that D has
              sufficient notice of the suit to satisfy Due Process
                    i. Should argue defects in notice as early as possible - if you didn't argue it in original court,
                       waive it
           b. Notice doesn't come up much in federal courts
                    i. States sometimes authorize odd forms of notice
                   ii. Even if D actually knows about the lawsuit, type of notice given has to be
                       Constitutionally adequate
                 iii. Basic rules are from 1950s case - Mullane v. Central Hanover
                           1. Balancing test - means employed must be such that one desiring to let someone
                               else know might use that means (doesn’t have to be the best method if too
                               expensive) - court has to feel like you tried hard to notify D
VI.    Service:
           a. Even if there are no contacts and D isn't a citizen and hasn't consented, if D is served with
              process while in the state, court can exercise personal jx

Specific Personal Jx – CoA arises out of D’s contact with forum state; Minimum Contacts
 I.   Pennoyer v. Neff (U.S., 1878) (pg. 415) Neff owed Mitchell legal fees; Neff didn't live in OR but
      owned property there; Mitchell sued Neff in personam in OR state court; published notice in an obscure
      newspaper; Mitchell won on default judgment because Neff didn’t appear; state sold the property to
      Mitchell who sold it to Pennoyer; Neff came back to OR and sued Pennoyer in federal court to get his
      property back; Neff won in federal trial court because insufficient publication of the notice; Supreme
      Court affirmed because state court had no personal jx
          a. Principles:
                    i. Every state possesses exclusive jx over persons and property within its territory
                   ii. No state can exercise direct personal jx over persons and property outside its territory
                           1. 14th amendment - constitutionalized the common law doctrine of personal jx,
                               which applies to state and federal courts
                           2. Exceptions: when in rem, and when D served in the state
          b. Mitchell’s other options:
             i. Not in rem: not suing for ownership of the property, but for debt owed; if it had been in rem,
                 could have just posted notice on property
            ii. Could sue quasi in rem: attach property and sue for legal fees (not related to the property - just
                 wants it for payment)
                           1. Only have to give notice on the property - literally just post something there
           iii. Hypos:
                           1. If legal fees were related to the property and M tracked N down in CA and served
                               him process by hand, but failed to attach property, OR court still wouldn’t have jx
                               (because property not attached)
                           2. If N had left OR temporarily?
                                   a. Could still be served process in another state – different from someone
                                       who leaves permanently
                           3. TN and KY citizens get into accident in KY; TN citizen goes home and KY
                               citizen wants to sue him in KY
                                   a. Under Pennoyer, can’t sue because: TN D not a citizen of KY; not served
                                       in KY; no KY property to attach
                                   b. Could argue Implied Consent (legal fiction)
                                           i. By driving in another state TN citizen implicitly consents to follow
                                              those laws and consent to jx
      c. Problem: Arbitrary and formalist distinction between attachment/no attachment, notice/no notice,
          suit about the fees/not about the fees
II.   International Shoe Co. v. Washington (U.S., 1945) (pg. 420) Whether DE corporation by its business
      in WA is covered under WA personal jx for WA to recover unpaid contributions to state unemployment
      compensation fund
          a. To obtain personal jx, P must establish that D has minimum contacts in the state such that the
               suit does not offend traditional notions of fair play and substantial justice
          b. D employed 11-13 salesmen in WA under supervision of managers in MO, but D had no office
               in WA and did not make contracts there; salesmen solicited offers from WA residents and
               relayed the orders to MO where orders were filled around the country and shipped into WA
          c. WA S.Ct. said that regular and systematic solicitation of orders in WA was sufficient doing
               business to confer jx
          d. “Special appearance” – participation solely for the purpose of contesting jx – equivalent to
               12(b)(2) motion to dismiss
          e. Changed Pennoyer: if person is not present in the state, he must have minimum contacts
                    i. Dispels arbitrary “presence” requirement; can serve a person out-of-state
        ii. Jx conferred when contacts are systematic and continuous and give rise to the cause of
            action; casual presence of a corporate agent or single/occasional act is insufficient
                1. Implied consent is not a justification
      iii. Test depends on the nature and quality of the activity in relation to the fair and orderly
            administration of the laws which due process insures
f. International Shoe’s contacts were systematic and continuous; large volume of interstate
   business during which the co. received the benefits and protection of the state’s laws and the
   cause of action arose out of those contacts
         i. Justice Black – construed 14th Amendment even more broadly to give States the right to
            protect its citizens from business dealings by corporations in the forum state
g. Hypos:
         i. Pennoyer facts: no attachment and unrelated to legal fees
                1. Probably no jx under Int’l Shoe
        ii. No attachment, but legal fees are related to the property
                1. No jx under Pennoyer; Yes, jx under Int’l Shoe
      iii. Land not related to legal fees (need systematic and continuous if contact unrelated to the
            claim - general jx) vs. land related to the fees (only need minimum contacts - specific jx)
                1. Still some question about whether one contact is enough with legal fees instance\
       iv. Int’l Shoe - fixes problems of Pennoyer, but creates its own problems - less clear lines
                1. This is how you get personal jx in a way that does not establish citizenship - Neff
                    would still be citizen of CA and there is SMJ in fed court because parties from
                    different states (and > $75,000)
        v. Sell product in other state - can be sued under product liability
       vi. For securities fraud against that co. in other state, need systematic and
            continuous/contacts and fairness
      vii. Could TN corp. sue deadbeat KY buyer in TN?
                1. Yes, because claim arises out of contract with corp. in TN - specific jx - only need
                    minimum contacts
                2. Securities fraud would be unrelated - general jx – need systematic/continuous
     viii. Is regularly shipping a product into a state sufficient for systematic/continuous?
                1. Int’l Shoe confuses because equates min. contacts and systematic/continuous
                         a. Regular
                         b. Over long period of time
                         c. Part of the business
                         d. More than minimum contacts - how much more is the question
                         e. **You probably need a physical presence in the state - like a store or
                             warehouse - salesmen aren’t enough
       ix. TN corp. only sells in TN; KY guy sees product in TN and asks them to ship to KY;
            something goes wrong with it; can KY guy sue TN guy in KY?
                1. Claim arises out of the contact with KY, but it doesn't seem fair
                2. Single act is different than regular shipments - depends
        x. TN corp has salesmen in AL; has never sold anything in KY; one of the products sold in
            AL ends up in KY and is defective - is there personal jx in KY?
                1. Would want to know:
                         a. Does it travel - like a car? Or a refrigerator?
                         b. Is it a regular avenue in KY? When would you expect something from AL
                             to end up in KY or other states?
                                  i. Wholesaler sells it to retailer who distributes it throughout
                         c. Is it a part and the manufacturer is in AL?
                             2. There are differences, depending on how the thing gets from the state where it is
                                made/sold to the state where it ultimately injures someone
                             3. How close must the relationships be for original corp. to be held liable?
III.   McGee v. International Life Insurance Co. (U.S., 1957) (pg. 436) CA P was beneficiary of life
       insurance policy purchased by other CA resident from AZ co. which was later taken over by TX co.
           a. Single insurance contract sufficient to confer jx over Insurance co. for claims arising out of the
                     i. Minimum Contacts:
                             1. Contract was delivered in CA, premiums were mailed from CA, and insured was
                                CA resident when he died
                             2. Although no CA office; only one contract in CA and no other business
                    ii. Fairness:
                             1. Nationalization of commerce across state lines
                             2. CA has a manifest interest in providing redress for its citizens when their insurers
                                refuse to pay claims
                             3. D had sufficient notice because did business with CA resident
                             4. P had no other forum in which to bring suit
IV.    Hanson v. Denckla (U.S., 1958) (pg. 437) PA resident Donner established trust in DE with DE trustee;
       Donner moved to FL and died; sisters claimed trust was invalid under FL law so money would go to
       them; Niece and nephew sued in DE claiming trust was valid; FL court ruled first, but DE court refused
       to give it “full faith and credit” because FL didn’t have jx; DE court held the trust valid; S.Ct. ruled that
       FL didn’t have jx because insufficient contacts between trustee and FL
           a. Distinguished McGee: cause of action does not arise out of act consummated in forum state
           b. D not subject to jx based on DE trust’s continued business with FL resident who was a PA
               resident when the contract was formed
           c. P’s unilateral action in moving to FL was insufficient to confer jx on DE trust, even though
               continued business
           d. D did not “purposely avail himself of the privilege of conducting business in the forum state”
           e. Minimum contacts:
                     i. Argument against:
                             1. D had no FL offices and did no business there other than with P
                             2. None of the trust assets had ever been held or administered in FL
                             3. D had never solicited business in FL
                             4. Only through unilateral activity of P did D do business in FL
                    ii. Argument for:
                             1. D continued to do business with P after it knew she moved to FL
                             2. While in FL, P maintained contact with trustee and changed her trust
                             3. Only non-FL resident was the corporation/trust
                             4. Will was made in FL
           f. Hypos:
                     i. Donner never left PA - what states have personal jx over her?
                             1. DE - trustee is a citizen there
                             2. PA - volitional act
                    ii. If Donner thought company was defrauding her, could she sue in FL after she moved
                             1. Not enough to say that states need to be able to protect their citizens' interests
                                    a. Irrelevant to minimum contacts
                             2. Trustee didn't withdraw business after she moved to FL - he was essentially
                                choosing to do/continue business there - sounds very similar to McGee
                       3. If we didn't allow her to sue, would be saying that people could do business and
                           not be covered by jx?
             iii. If Donner can sue in FL, how come her daughters can't sue in FL?
                       1. They never did business with the trustee?
        g. **McGee and Hanson are irreconcilable, even though the court felt differently
               i. Only difference is that trustee failed to withdraw business, whereas insurance
                  company actively sought to continue the policy
              ii. If a jx opinion first cites McGee, probably will have jx; if cites Hanson, probably won't
                  have jx
             iii. Whether single sale/transaction confers personal jx (left open by Int’l Shoe and confused
                  by McGee and Hanson)
        Yes, personal jx conferred   No, personal jx not conferred Selling single thing over Ebay
        (McGee)                      (Hanson)

        One transaction still allows One FL customer not enough Doesn’t seem fair
        D to benefit from state laws for min contacts
        Intended to do business in   P made unilateral move to
        the state (solicited)        FL, but continuing business
                                     was mutual

        Business purposely availed   ?                             9th Circuit recently decided - said there
        itself of the state's laws                                 was no personal jx; weren't explicit -
                                                                   unsure whether there weren't enough min
                                                                   contacts or it was unfair
V.   Worldwide VW Corp. v. Woodson (U.S., 1980) (pg. 439) NY Ps got into car accident in OK on the way
     to new home in AZ and car caught on fire, harming family; bought the car in NY; manufacturer, dealer,
     and distributor all did no business in OK
         a. Holding: mere fact that purchaser brings a car into a state doesn’t subject retailer to jx there
         b. Minimum contacts:
                  i. Unilateral action: P’s choice to drive in OK doesn’t confer jx on D (Hanson)
                 ii. Purposeful availment: none of the Ds advertised or marketed the car in OK with the
                     expectation they would be purchased in OK
                iii. Stream of Commerce: forum state can have jx over corp. that delivers product into stream
                     of commerce with expectation that it will be purchased in forum state
                iv. Foreseeability: if P could reasonably foresee being haled into forum state court, would
                     confer jx
                         1. Circular argument – called out by Brennan’s dissent
         c. Min contacts here?
                  i. No:
                         1. D does not ship or sell products to OK
                         2. Neither co. has agent or offices in OK (only serve NY, NJ, CT)
                         3. No evidence that any car besides this one ever made it to OK
                         4. Not receiving revenue from cars in OK
                         5. No “contacts, ties, or relations” with OK
                 ii. Yes:
                         1. D could have reasonably foreseen being haled in state where it had profited
                         2. Co. received “substantive revenue from goods used or consumed in OK” – cars
                             sold by co. could very well end up in OK
                         3. D placed products into stream of commerce – cars are designed to be mobile
d. Brennan’s dissent (fairness factors): Ct. reads Int’l Shoe too narrowly; contacts are only one
   way of assuring fairness
        i. D’s burden: low – corp. can afford to litigate in other states – concern for D’s no longer
           that important
       ii. Forum state’s interest in adjudicating the dispute: high – interest in enforcing state laws
           and highway laws; cars are intended to move, and co.s make money off them in many
           states (according to Brennan)
     iii. P’s interest: want relief [but unilateral move doesn’t help their case]
      iv. Interstate judicial system’s interest in obtaining most efficient resolution of controversies
e. Potential Ds:
        i. Drunk driver - probably didn't have any money/no insurance
       ii. Mfr. - Audi - faulty design - might not be able to sue a European company
     iii. Importer - VW - maybe modified car to suit customer
      iv. Distr. - Worldwide - highly unlikely he modified it in any way
       v. Sold - Seaway - highly unlikely he modified it in any way
f. So why sue 4 and 5?
        i. Both from NY and the Robinsons were from NY; no diversity jx; Ps wanted it in state
           court (rural court, more sympathetic jury pool); Audi and VW satisfied diversity jx,
           ultimately removed to fed court, and were found not liable
       ii. FRCP says Ps can use strategy - Keeton v. Hustler - said Ps can shop around to find a
           state that has laws that are favorable to them
g. Hypos:
        i. Car blows up and bystander is harmed; certain that Worldwide modified things which
           caused the car to explode; can 3rd party bystander sue WWVW and have jx in OK?
               1. Brennan's dissent says Int'l Shoe really about fairness and minimum contacts is
                   one way of showing it - not a bifurcated test
               2. Majority: unfair if D inconvenienced too much; DPC prevents states from
                   exercising jx over Ds when there are no minimum contacts
               3. Majority says you need both fairness and minimum contacts - conjunctive test
       ii. Mfr. of tailpipes - only sells to GM in Michigan - GM puts the tailpipes in all cars which
           get sold all over the country. GM unilaterally sold the car to someone in OK
     iii. GM manufactures cars and ships them all over, including to NY, where the Robinsons
           were when their car exploded. GM incorporates parts from KY company into its cars. Is
           KY company under jx in NY?
               1. Under WWVW, yes, there is personal jx - KY co. had knowledge it would be sold
                   elsewhere, which constitutes putting it into stream of commerce, etc. - could
                   expect it to end up elsewhere (foreseeability)
      iv. WWVW -> Seaway (also gets sent to OK) -> Robinsons (OK)
               1. Seaway and WW can expect car to end up in NY, but not in OK
       v. KY Pipe -> GM -> NY
               1. Both can expect product to end up in NY (or other state)
      vi. GM -> ships all over (inc. NY and OK) -> Robinsons -> OK
               1. Something peculiar here - we are saying that because GM sells cars all over the
                   world and Robinsons bought a car in NY and took it to OK, GM might still be
                   covered by jx
     vii. GM has dealership in OK and knowingly ship cars to OK
               1. OK dealerships avail themselves of benefits and laws in OK
               2. Claim has to arise out of the contacts to be minimum contacts - to get specific jx
               3. Maybe we need general jx - claim arose out of GM's contacts with NY
                            4. In contrast, WWVW had no business dealings in OK - Audi does sell cars in OK,
                                but it didn't sell the Robinson's car in OK - Audi could have argued that specific
                                jx didn't apply but that general jx should (higher standard – systematic and
 VI.    Keeton v. Hustler Magazine, Inc. (U.S., 1984) NY P sued Hustler (OH) in NH over libel. Court held
        that P’s contacts (or lack) with forum state were irrelevant; D deliberately exploited NH market and
        should anticipate being haled into court there; and NH had significant interest redressing injury to
        nonresidents because it could discourage deception of its citizens. Ps can search for forum with
        favorable substantive or procedural rules or sympathetic local populations.
VII.    Calder v. Jones (U.S., 1984) CA P sued 2 FL Ds in CA (newspaper editor and article author) over libel.
        Court said that brunt of the harm (emotional distress and injury to professional reputation) was suffered
        in CA; also the focal point of the story. CA jx was proper based on “effects” of Ds’ conduct in FL. Ds’
        “intentional and allegedly tortious actions were expressly aimed at CA.”
VIII.   Burger King Corp. v. Rudzewicz (U.S., 1985) Jx on basis of breached franchise contract. FL corp.
        entered into franchise contract with MI Ps. Contract said that FL law applied to all disputes but didn’t
        mention forum. Parties who “reach out beyond one state and create continuing relationships and
        obligations with citizens of another state” are subject to regulation and sanctions in the other state for
        the consequences of their activities. Commercial actor need not be present in state; must only have
        “purposefully directed” efforts toward residents of another state. Contract alone doesn’t confer jx, but
        the prior negotiations and contemplated future consequences, in addition to the contract, must be
        examined to determine minimum contacts. Ds deliberately “reached out” to affiliate with FL franchise
        and entered into contract with “substantial connection” to the state.
 IX.    Asahi Metal Industry Co. v. Superior Court (U.S., 1987) Asahi (Japanese corp.) sold allegedly
        defective tire valve parts to Cheng Shin (Taiwanese corp.), which sold part to California co., which
        ultimately sold to CA consumers.
            a. Minimum contacts?
                     i. Under WWVW, yes, under stream of commerce (ends with the consumer)
                    ii. O’Connor 4 (IIA – with Rehnquist, Powell, Scalia): No; Need more than mere awareness
                        that product might reach another state in the stream of commerce; need “purposeful
                            1. Advertising in the forum state
                            2. Designing product specific to forum state
                            3. Service channels in that state for providing regular advice to customers
                            4. Marketing product through distributor who has agreed to serve as sales agent
                                (Int’l Shoe)
                            5. Additional: foreseeability not irrelevant if co. delivers product into stream of
                                commerce with expectation they will be purchased in the forum state; unilateral
                                act not enough; D’s mere awareness that stream of commerce may sweep the
                                product into forum state is not purposeful direction
                   iii. Brennan 4 (III – with White, Marshall, Blackmun): Yes; Just placing the product in the
                        stream constitutes minimum contacts
                            1. Stream of commerce refers to regular and anticipated flow of products from mfr.
                                To distr. To retail; as long as participant is aware that final product is marketed in
                                forum state, should be wary of being haled into court there
                            2. Co. will also benefit economically from retail sale of final product in forum state
                   iv. Stevens: Yes, there are minimum contacts, but doesn't give a test
                            1. Volume, value, and hazardous character of the components
                            2. Regular course of dealing resulting in deliveries of >100,000 units annually over
                                several years = “purposeful availment”
                   3. Unclear whether Blackmun and White agree with Stevens or Brennan - claim to
                       agree with both, but they are conflicting…
b. Fairness?  (8 justices say no; Scalia hates balancing test - doesn't need to look at whether it's unfair)
           i. Leaves the WWVW fairness test intact:
                   1. Burden on D – high – must travel from Japan to CA; submit dispute to foreign
                       nation’s judicial system
                   2. Forum state’s interests – low – P not a CA resident; there is an alternative
                       forum; not about safety, but indemnification
                   3. P’s interests – low – indemnification is only issue; probably more convenient for
                       Taiwanese court to litigate in Japan than CA
                   4. Efficiency – “shared interests” of international and national parties - courts have
                       never defined this and it has never decided a case – foreign courts better suited to
                       resolve disputes between foreign countries
                            a. Liability rules might differ from country to country and state to state
                                     i. If Cheng Shin was found liable to Zurcher, would be more likely
                                        that Asahi would also be found liable - want indemnification case
                                        adjudicated by the same liability rules as the tort case
                                    ii. Cheng Shin probably not going to settle - perverse incentive on Ds
                                        not to settle if they can collect indemnification overseas
      MAJORITY NOR PLURALITY - sometimes say the opinion that has the narrowest grounds
      wins, but doesn't help us here because we don't know what the narrowest grounds are
   d. Hypos:
           i. Zurcher sues Cheng Shin over faulty brake line who indemnifies Asahi
                   1. Cite WWVW because no law in Asahi on min contacts
                   2. Cite Brennan and Stevens in Asahi – brake line is like tire tube, but even more
                       hazardous and Asahi only has to have shipped a small percentage of total stock
                       (Stevens will always find enough for min contacts)
                   3. Cite Asahi – brake lines use specific kind of fluid which means Asahi was
                       targeting the U.S. market; satisfies O’Connor and Brennan
                   4. Cite O’Connor in Asahi – lead opinion (Brennan, White, Marshall, Blackmun –
                       all retired or dead); Scalia still on the court and O’Connor was until recently
                   5. Fairness:
                            a. D’s burden: same
                            b. Forum state’s interest: increased; P is a citizen
                            c. P’s interest: increased – was injured
                            d. Efficiency: increased
                            e. “Shared interests” – no one knows
          ii. KY Pipe -> GM -> sold all over -> pipe explodes in NY
                   1. Still subject to personal jx under Asahi - Stevens and Brennan - enough for min
                   2. Fairness:
                            a. D - decreases
                            b. P - increases
                            c. Forum - increases
                            d. Efficiency - increases
                   3. Usually rests more on min contacts than fairness
         iii. KY Pipe only sells to tank manufacturer which sells to military, but one year military
              doesn't need as many so they sell the surplus to GM
                         1. Not min contacts because not regular or systematic business - normal stream of
                              commerce is to military - this is not anticipated; an unpredictable eddy - has to
                              be predictable stream of commerce
                iv. Should there be nationwide personal jx?
                         1. What if D didn't cause the problem? The suit is supposed to determine who is in
                              the wrong - unfair to say because they might be wrong, have to litigate in another
                              state far away
                         2. Personal autonomy - limit jx to control (avoid bad laws; choice of law questions)
                         3. Could stifle international commerce - people don't want to sell to U.S. if they can
                              be sued so easily there
                         4. Fairness test always
                         5. There is no right answer - complex issue - and the Court hasn't helped
X.   Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D. Pa. 1997) (pg. 463) PA P corp. sued CA D corp. over
     internet domain name. D contracted with 3000 individuals and seven access providers in PA to let users
     download electronic messages. Ct. held that D’s site was sufficient to confer personal jx because it
     sought and conducted business with residents of the state (purposeful availment)
         a. Applicable precedent (continuum for internet jx):
                  i. E-business: Compuserve: D enters into contract with forum state residents that involve
                     knowing and repeated transmission of computer files over internet = personal jx
                         1. Always give rise to jx, whether co. knows where product goes or not
                 ii. Interactive website: Maritz: interactive website where user can exchange information
                     with host computer. Must examine level of interactivity and commercial nature of the
                     exchange of information. In this case, D’s conduct consisted of active solicitations,
                     promotional activities, and responses to every user who accessed the site.
                         1. The more a business relies on internet business, the more readily ct. will find
                              personal jx, despite no business contacts with the forum state
                         2. Under intermediate:
                                  a. Personal information transferred
                                  b. Taking advantage of laws
                                  c. Passwords
                                  d. Response
                                  e. Could place an order (although may not ship)
                iii. Customers: Inset Systems, Inc.: outer limits of personal jx. D posted site that was
                     accessible to approx. 10,000 CT residents and maintained toll-free number. Exercised
                     personal jx because internet advertising constituted purposeful doing business in CT
                     because ads were continuously available to any internet user.
                         1. If lots of customers in state typically jx because purposeful availment
                         2. If few or no customers in state typically no jx
                iv. Passive: Bensusan: Passive website that does little more than make information
                     available to people in other jxs does not confer personal jx.
                         1. No control over who sees it; merely advertising in every state with no control over
                              what state sees it, typically not enough to confer jx
                         2. Rarely give rise to jx
                 v. Pres-Kap, Inc.: no personal jx over consumer of online airline ticketing service.
                     Distinguishable because about consumer, not seller.
         b. This is a “doing business over the internet case” like CompuServe
                  i. Purposeful availment of doing business in PA
                 ii. D tried to argue that contacts are fortuitous because PA residents happened to find the
                     site; Ct. says it would only be fortuitous under WWVW, if OH user had forwarded Dot
          Com file to PA friend who then subscribed. D chose to assign PA residents passwords
          and process their applications. Chose to sell its services in PA for profit.
     iii. Percentage of business doesn’t matter- nature and quality does
     iv. Passes fairness test
c. Hypos:
       i. Sherry posts articles on Vandy website; prof in Chicago claims one of the articles
          defames her; does prof have jx over Sherry?
              1. Passive (posting on internet)  interactive websites (level of activity and
                  commercial nature of the exchange  doing business on internet (transferring
              2. Sherry's posting is pretty passive - but she knew it defamed her and the prof might
                  be able to read
              3. Anyone can access the internet - need to draw the line because otherwise could be
                  subject to personal jx in every state (deter people from putting up websites)
              4. No control over who reads, so it's not purposeful availment of laws of another
                  state - so no way to limit personal jx
                      a. But could use programs to limit access to people in certain states - so you
                           do have control over who sees it
                      b. But the average internet user probably doesn't know that - seems unfair
                                i. Commercial vs. individual entity
                      c. Most people agree that if it's a passive site, shouldn't have to use program
                           to block people, BUT if it's a company, making revenue online, probably
                           should be required to use programs (Zippo doesn't go this far)
      ii. Sherry downloads crossword puzzles from NYT and it gives her computer a virus
              1. On the far right of the spectrum - purchasing a password, downloading something,
                  more than interactive - Sherry has jx over NYT in TN
     iii. Small bookstore in MO sues Amazon
              1. is in intermediate/interactive category - more than passive because
                  you can place an order
              2. Should "doing business" include more than just transferring computer files?
              3. Amazon's only business is online
              4. Transferring files is meaningless - all websites transfer files
              5. Depends on book shipments
              6. Zippo was 1997 - Amazon hadn't taken off yet - kind of outdated - courts today
                  would say that is doing business
              7. Amazon could avoid jx by refusing to ship books to MO - makes it passive
                  because exercising control to limit the states where it does business
     iv. This is all purposeful avoidance of jx - not fortuitous (WWVW)
              1. If you have purposely avoided jx OR if you have fortuitously avoided jx
                  (unintentional) can avoid jx
              2. BUT if level of interactivity is high enough, may still be held under jx
      v. Can't order through the website, but toll-free number for ordering; product shipped into
          forum state and causes harm
              1. If the company ships into the state, there is jx (only if it only ships one item might
                  there not be)
     vi. What if the company is out of stock, and P goes to another state, purchases it in a store,
          and brings it back to forum state? Company does ship to the forum state, but didn't ship
          this actual product

                          1. If shipping goods into the state is enough for gen jx, then need a physical presence
                              in the state (not systematic and continuous)
                          2. Probably is enough for specific jx here, but not enough for general jx
                 vii. Store won't ship to forum state, but P goes to other state, purchases it there, and brings it
                      back to forum state
                          1. Fortuitous - website is irrelevant in this case
                          2. Consumer was the one who acted
                          3. Knowledge/awareness - stream ends with the consumer (analogize to arguments
                              for stream of commerce)
                          4. Where consumer buys it is where jx stops
                viii. Co. doesn't ship to TN; wants customers to come to store in KY
                          1. WWVW - purposeful availment; advertising in the state
                          2. Asahi O'Connor opinion - placing in stream isn't enough unless there's something
                              else like targeted advertising
                          3. Co. would still need awareness that product would end up in forum state - but still
                              subject to jx even if consumer is the one who acted
                  ix. Website with toll-free number only, copyright infringement suit; no products shipped to
                      particular state
                          1. Passive site
                          2. There was jx in Inset, but there was a toll-free number - sort of an aberration/outer
                              limits - not enough for personal jx today; website is passive and the toll-free
                              number is unrelated
                          3. Bensusan - no, no toll-free number - if passive, no jx - doesn't rise to purposeful
                              availment of the laws

General Personal Jx: CoA doesn’t arise out of contacts with forum state; Systematic and Continuous
   I.    When do contacts “give rise” to CoA?
         a. 6th circuit: “related to” or “substantial connection” test – very liberal – O’Connor court rejected
             this because specific jx is the cost of enjoying benefits of doing business in the forum state –
             can’t blur the line between specific and general jx
         b. 9th circuit: “but-for causation” – when P’s claim wouldn’t have arisen in absence of D’s contacts
         c. Strict: “proximate cause” or “substantive relevance” test – D’s contacts must be “legal cause” of
             P’s injury or “formally” arise out of D’s contacts – whether any of D’s contacts with forum are
             relevant to merits of P’s claim
   II.   Bird v. Parsons (6th Circuit 2002) (pg. 470) P sued for federal copyright and trademark
         infringement. D operated website that registers domain names; 4,666 OH residents registered/have
         website available to them. Specific jx allowed, but not enough for systematic and continuous (gen
         jx) because no office, license, business, operations (similar to no purchases of Helicopteros) and
         registrants initiate contact with D’s site.
         a. Helicopteros (U.S. 1984) Co. sent CEO to TX periodically, cashed checks in TX banks,
             purchased helicopters in TX, and sent personnel to TX for training.
                  i. Ct. ruled that mere purchases, even at regular intervals, are not enough; only sent people
                     into the forum state for minimal business - no physical presence
                 ii. No general jx
         b. Perkins (U.S. 1952) President of nonresident D co. kept an office in OH where he kept co. files
             and held meetings; used OH bank as transfer agent; drew on two active OH bank accounts, etc.
                  i. Sufficient to support general jx

       c. Broad/lenient construction of “arising out of” – cause of action must have “substantial
          connection” to D’s in-state activities; in this case, the facts were at least marginally related to the
          alleged contacts
       d. Law is in flux - don't know where it's going
                i. Minority of courts might hold that even if you have no physical presence in the state, if
                   you do business in the vernacular sense (sell goods) in the state, you are covered under jx
               ii. Micron (yes gen jx because registered to conduct business in MA and had customers in
                   MA whose accounts were serviced by people in NH) and L.L. Bean (vacated; yes gen jx
                   even though no offices or agents in CA and no taxes paid there) have basically erased the
                   line between specific and general jx, but the cases cited in the book are the only ones that
                   have expanded jx in this way
III.   How much do you need for systematic and continuous?
       a. Physical presence may not be necessary anymore, but usually the bar for presence is high
       b. Still always need fairness, but pretty much always have it when contacts are systematic and
IV.    How can you tell whether the appropriate test to apply is specific or general jx? (Hypos)
       a. P always wants to go for specific because min contacts asks for less than s and c - will always try
          to argue the claim arises out of the contacts (other half of the Bird decision)
       b. Facts of International Shoe; enter into contracts with headquarters; employ salesmen; ship shoes
          to WA; no physical presence. Can the state of WA sue in WA courts for unemployment
                i. Does the claim arise out of the contacts? Is it specific or general jx?
               ii. Contacts: employs salesmen and ships shoes; claim arises out of first contact
             iii. Specific jx: minimum contacts and fairness exist
              iv. Are the contacts sufficient? YES (some courts collapse these two questions into one)
       c. Breach of employment contract
                i. Specific jx - relates to employment of salesmen
               ii. Satisfies min contacts
       d. WA citizen who owns stock in International Shoe wants to sue for stock fraud
                i. General jx: need to show systematic and continuous; probably not in this case
                       1. Sales not enough, employment of people not enough - no physical presence
               ii. P can't cite LL Bean because it was vacated
             iii. If co. had lied about the number of shoes it sold and that was the basis of the stock fraud,
                   might be able to claim the claim arises out of the contacts and therefore specific jx - some
                   courts might allow this, others might not
              iv. According to Micron, customers and in-state salesmen should be enough
       e. P bought shoes from International Shoe in St. Louis where their headquarters are, and P wants to
          sue in WA for a defect in the shoes
                i. Contact: ship shoes into WA
               ii. Claim doesn't arise out of this contact - didn't sell these particular shoes in WA
             iii. General jx is the test; are there systematic and continuous contacts?
              iv. Probably not because no physical presence
                       1. Audi problem - maybe it shouldn't matter where the car/shoes came from because
                           it's the identical contact
                       2. Selling the same product in two different states is related
               v. Making phone calls out of a state is a much better indicator of presence in the state than
                   making phone calls into the state
       f. Dotster owns plot of land in OH as investment, but doesn’t do business there; can Bird sue?
                i. Not general jx - not systematic and continuous
                        ii. Quasi in rem - attach property, but claim not about the property
                               1. Need to show something more?
                               2. According to Shaffer (discussed at length in Burnham): need to show
                                   minimum/systematic and continuous - can't just rely on attachment because it's
                                   not about the land, so it's basically in personam
                               3. Shaffer overruled that part of Pennoyer
                               4. Shaffer doesn't say anything about in rem - but claim arises out of the contacts, so
                                   specific jx, and minimum contacts satisfied; rarely comes up except with very odd
                                   property, like domain names
                                       a. You can sue about a domain name because it counts as property

Physical Presence to Confer Jx
       I.       Burnham v. Superior Court (U.S. 1990) (pg. 477) D served with process for suit unrelated to
                activities in state, while in state temporarily. All justices agreed there was jx because served in state
                (tag jx – can’t use for corps. by serving an officer)
                a. What if…?
                Situation     Scalia 4              Brennan 4                                              Stevens 1
                Driving       Yes - just have to    Must be fair and just - how much time must you be Who
                through       be in the state       there to have enjoyed the benefits/advantages of  knows?
                                                    the state?
                Visiting    Yes - just have to      Might not be fair - seems harsh                        Who
                dying child be in the state                                                                knows?
                      i. Exceptions:
                             1. If you are in the state for a lawsuit (to contest personal jx), you can't be served for
                                 the same lawsuit (special appearance)
                             2. If P or P's lawyer lured you into the state to serve you, you're not covered
                c. How the justices line up in Asahi and Burnham
                      i. Asahi: is just putting an item in the stream of commerce enough for personal jx?
            Brennan Y Marshall Y Blackman Y          White Y       O'Connor N    Rehnquist N Scalia N

                        ii. Burnham: is just being in the state enough to get served?

            Brennan N Marshall N Blackman N White Y O'Connor N Rehnquist Y Scalia Y
                       iii. Only White and O'Connor are consistent
                       iv. Very peculiar case; they are 9-0 on the result but can't agree on the rationale
                               1. Fighting about how the DPC should be interpreted because it's relevant to
                                  abortion case before them

Federal Long-Arm Jx: Personal jx in a federal court always starts with 4(k), the federal long-arm statute
  I.         FRCP 4(k): Several ways service of summons or filing waiver of service is effective to establish jx over
                a. 4(k)(1)(A): who is subject to jx of a court of general jx in the state where the district court is
                   located (most common); OR
              b. 4(k)(1)(B): who is a party joined under Rule 14 or 19 and is served within a judicial district of
                   the U.S. and not more than 100 miles [from the courthouse in which suit was filed as the crow
                   flies] from where the summons was issued [bulge rule – some court say you still need min
                   contacts in addition to bulge; others say this section confers nationwide jx]; OR
              c. 4(k)(1)(C): when authorized by federal statute (rare – antitrust law and securities fraud)
              d. 4(k)(2): fallback provision - only used for foreign D who has enough contacts with U.S. to
                   confer personal jx (systematic/continuous or minimum contacts) but not enough contacts with
                   any one state - only triggered if it doesn't have enough contacts with any states
 II.        Must also satisfy min contacts and fairness test, but split in courts as to meaning of min contacts:
              a. Some say min contacts with state in which district court sits
              b. Others say min contacts with U.S.
III.        Hypos
              a. TN P and KY D get into an accident in KY; TN P wants to sue in TN state court
                        i. No personal jx, unless D has some other connection to TN or was served there - there are
                            no contacts as far as we can tell
                       ii. TN fed ct –
                                1. SMJ - diversity jx, not federal question jx
                                2. Personal jx - 4(k)(1)(A) - if personal jx in state court: minimum contacts, fairness,
                                    notice, and state long-arm statute
                                        a. No min contacts or fairness here
              b. TN P employed by KY corporation; sues corporation in TN fed ct. for federal employment
                        i. SMJ: Yes, federal question
                       ii. PJ over corporation:
                                1. 4(k)(1)(A) – No, no minimum contacts
                                2. 4(k)(1)(B) - N/A - not joined
                                3. 4(k)(1)(c) - No - even though this is federal question, most federal statutes do not
                                    authorize nationwide service and jx - most suits are federal statutes are governed
                                    under 4(k)(1)(A)
              c. TN employee works in KY store; parent/owner is a TN corporation - still for discrimination
                        i. Can't join KY store and TN corp. because there was no personal jx over the KY store -
                            would get dismissed
              d. TN P sues TN corp.; corp impleads KY store under Rule 14 or 19
                       1. 4(k)(1)(B) – personal jx if w/in 100 miles - loophole
                       2. If KY store was outside the 100-mile radius - would file 12(b)(2) to say there was no
                            personal jx under 4(k)(1)(A) or 4(k)(1)(B); that part of the suit could not go on; corp
                            would have to sue KY store in later, separate suit
              e. Contract between franchise and corp not enough to confer jx in and of itself, but if contract
                   stated that all suits would take place in TN, corp and store deemed to have consented
              f. ERISA - federal statute about employee benefits - confers nationwide jx - 4(k)(1)(c)
                        i. Sherry wants to sue MN because they have part of her pension and they did something
                       ii. Still need minimum contacts – see above about court split

       I.      Generally
               a. Third prong in federal court’s ability to hear case, after personal jx and SMJ
               b. Determines the federal district in which case is heard
               c. Even if PJ and SMJ, court can choose not to hear if inconvenient
       d. Venue can be waived if not made in initial 12(b)(2) motion
       e. Need only be evaluated for original complaint (not for Rule 13, 14, 18, 19,20 claims)
II.    If venue is inappropriate:
       a. If case in federal court: court will transfer to appropriate venue
       b. If case in state court: court can transfer in-state, but if it has to go to another state, court will
           dismiss the action (can be contingent on D agreeing to new venue)
III.   Residence:
       a. Most court say it’s broader than domicile (intent to remain unnecessary) but some courts say it’s
           the same
IV.    Determining Venue: 28 U.S.C. § 1391
       a. § 1391(a): In diversity suit, can only bring case in judicial district where:
                i. any D resides, if all D in same state
               ii. substantial part of events or omissions giving rise to the claim occurred or substantial part
                   of the property that is the subject of action is located
              iii. any D is subject to personal jx at the time the action is commenced if there is no district
                   in which the action can otherwise be brought (fallback provision)
                       1. When events took place outside the country or are so scattered that no substantial
                           part took place in any one location
       b. § 1391(b): In federal question suit, can only bring case in judicial district where:
                i. any D resides, if all D in same state
               ii. substantial part of events or omissions giving rise to the claim occurred or substantial part
                   of the property that is the subject of action is located
              iii. any D may be found, if there is no district in which the action can otherwise be brought
                   (fallback provision)
       c. § 1391(c): Defendant corporation:
                i. shall be deemed to reside in judicial district in which is it is subject to personal jx when
                   the action is commenced. If state has more than one district in which corp is subject to
                   personal jx, corp will be deemed to reside in any district in that State within which its
                   contacts would be sufficient to confer personal x if that district were a separate state. If
                   no such district, corp deemed resident of district with which it has most contacts.
V.     Change of venue:
       a. § 1404: court can transfer case to any other district where it might have been brought for
           convenience of parties and witnesses. Parties can also move for change of venue. When venue
           proper, can transfer.
                i. Once it’s in convenient venue, stays there – venue is a matter of convenience, not right of
                   the party
       b. § 1406: if case is in wrong venue, court can dismiss or transfer to appropriate venue. If not
           objected to, waive venue. Will rarely dismiss unless P is playing games, but D will file 12(b)(3)
           motion to dismiss.
VI.    Hypos
       a. TN P, NC D; accident in IN (worth more than $75,000); D served while on business in TN
                i. SMJ: YES, diversity jx
               ii. Personal jx: YES, served in TN
              iii. Venue: §1391(a) - other places suit could be brought:
                       1. IN?
                               a. SMJ - if there's SMJ in any federal ct, there's SMJ in every fed ct
                                   (except where the subject of the suit actually matters)
                               b. PJ - yes, accident took place there

                                   c. Venue - 1391(a)(2) - substantial part of even giving rise to claim occurred
                          2. NC?
                                   a. SMJ - yes, see above
                                   b. PJ - can always sue in a citizen of a state in that state
                                   c. Venue - 1391(a)(1) - where D resides
                          3. TN?
                                   a. Not under 1391(a)(1) - D from NC, not TN
                                   b. Not under 1391(a)(2) - event occurred in IN, not TN
                                   c. Not under 1391(a)(3) - two other districts in which suit can be brought
                                   d. If case was filed in TN fed ct, 1406 governs - court can dismiss or transfer
                                      to another court
          b. If SMJ or PJ invalid, court must dismiss - P will have to file again
   VII. Personal Jx and Venue Worksheet: TN enter contract with Manhattan (S.D.N.Y.) architect and
          Buffalo (W.D.N.Y.) builder for new house in Buffalo where she’s going to move.
          a. In which fed cts. Can P sue both architect and builder in one lawsuit?
                   i. SMJ: diversity
                  ii. PJ: All NY and TN districts
                 iii. Venue: W.D.N.Y. and S.D.N.Y. (§1391(a)(1)); M.D.T.N. (§1391(a)(2)) but need
                      substantial part of even giving rise to claim taking place there
          b. If builder from Philly instead of Buffalo?
                   i. SMJ: diversity
                  ii. PJ: all TN districts (min contacts?); all NY districts (architect is citizen and builder has
                      min contacts because building there); PA probably not enough contact for architect
                 iii. Venue: §1391(a)(2) – WDNY or MDTN – were there enough events in TN or NY?
          c. What if Philly builder is a corp.?
                   i. §1391(c) – PA corp deemed resident of WDNY
                  ii. Go back to §1391(a) – both residents of NY, so can bring in SD or WD
Personal Jx Problem
     I.   Can Cyber-Sell sue Cybersell in AZ for infringing on its service mark by using the name
          “Cybersell”? Does it matter whether Cybersell has an customers in AZ?
          a. Specific or general jx: website available in AZ; claim arises out of the fact that website is
             available in AZ - website infringes on the trademark = specific jx
          b. Need minimum contacts and fairness: use Zippo scale - interactive (middle)
                i.    Site is commercial, is available to AZ, and you can order off it – highly interactive
               ii.    Speculate on customers - like shipping into the state - Bird v. Parsons
              iii. Might be an e-business site - transmission of files = minimum contacts
              iv.     What if they haven't shipped any products to AZ?
                          1. Use Bird to say they ship all over the country, but they might be able to prove that
                               they don't have AZ customers
                          2. Fortuitous or deliberate (purposefully not availing themselves of AZ's laws)?
                                   a. Co. might be taking a reasonable effort to avoid contact with AZ - to AZ
                                      citizens, this is equivalent to a passive website - then no minimum
                                   b. Reasonable effort to avoid contact in AZ makes it unfair - focus on D's
                                   c. What if it's fortuitous - they're a new company and just haven't had AZ
                                      customers yet?

                            d. WWVW - intent to avail themselves of AZ's laws - presume they would
                                ship to AZ if someone ordered there - makes it an interactive website
II. Can BU sue Cybersell in CA for breach of contract because of the glitch in the website that
     Cybersell constructed for BU? Does it matter whether the page was shipped via email or snail mail?
     Does it matter whether Cybersell has any other customers in CA?
     a. Specific or general jx: Contacts: 1) Cybersell entered into contract with CA co.; 2) website
        available in CA; 3) shipped a product or good (the website) to CA
           i.   Claim arises out of 1 and 3 - specific jx
     b. Need min contacts and fairness
           i.   Even if BU was the only customer in CA, would still have min contacts regardless of
                other considerations - like McGee
          ii.   Cybersell solicited the contract in CA by making the website available in CA and entered
                into contract with CA co.; actually shipped a physical product into CA which makes it
                even stronger case than McGee
         iii. Not like Hanson, because didn't solicit in that one and no product shipped into state
         iv.    If not only CA customer, makes the case even stronger
     b. Email vs. snail mail
           i.   If method of payment of shipping has no indication of CA - leads to deliberate or
                fortuitous arguments
                    1. Matters if Cybersell would not have shipped to CA if they had known the
                        customer was in CA; but if Cybersell didn't care where it shipped, would be
                        purposely availing itself of state's laws
          ii.   Snail mail - know where it's going - even stronger than email
         iii. Should have been aware that co. was in CA because created a website that presumably
                included the CA address, so would have known the co. was in CA - even if domain name
                and billing address had nothing to do with CA
III. Can Hawthorn sue Cybersell in MA for negligence? What if Cybersell’s web ad had targeted New
     a. Specific or general jx: Contacts: website available in MA (could make weak argument about
        causal chain - but-for causation - wouldn't have been in FL if website hadn't been available in
        MA, wouldn't have gone to FL) but it's separate act
           i.   Claim: negligent in FL; arose out of P being in FL  general jx
     b. Need systematic and continuous contacts and fairness
           i.   No S&C - website not enough (interactive website enough for specific jx, but not general
                jx) and the injury happened in FL
          ii.   O'Connor argument: targeted advertising (is targeting New England equivalent to
                targeting MA?)
         iii. Not a stream of commerce case, but purposely availing self of state's laws for purposes of
                doing business - relevant to minimum contacts, but not to systematic and continuous
         iv.    There are a few courts that have held, for grocery store that advertises in local
                newspapers in nearby states, if ads induce person to come to store in forum state and gets
                hurt in the store, there is personal jx; one Walt Disney World case in book
                    1. But generally, even with advertising, will not be enough
                    2. Foreseeability of targeted advertising might subject to jx in forum state under min
                        contacts, but not S&C
IV. Can Carlson sue Cybersell in TN for IIED? Does it matter whether Cybersell has any customers in
     a. Specific jx: Contacts: Cybersell made product in FL, sold to CA, used in TN, where it caused
        harm in TN - cause of action arises out of this line of contacts (stream of commerce)
                  i.   Where does the stream of commerce end? At the consumer. Who is the consumer? Could
                       go either way - like a part used in a final product, or the final product
                ii.    Even if ultimate consumer is in TN, have to run through Asahi - would not be enough
                       under Asahi - even knowing it was likely to get to state where consumer bought it is not
                iii.   Brennan would say website (like car) is designed to travel so not only knew it would get
                       from CA to someplace else, but deliberately made it so it could and that's how they're
                       making money on it

  I.       Purpose: to communicate to opponent the claim(s) being brought against him and allow him to
           prepare for trial (ex. Complaint, answer, crossclaim, counterclaim, reply to D’s counterclaim, 3rd-
           party complaint, answer to 3rd-party complaint, reply to answer, etc.)
  II.      FRCP 8: Complaint
           a. 8(a): Pleading that states a claim for relief requires:
                     i. A short and plain statement of the grounds for the court’s jx, unless the court already has
                        jx and the claim needs no new jxal support;
                    ii. A short and plain statement of the claim showing that the pleader is entitled to relief; and
                  iii. A demand for the relief sought
                            1. Have to include a specific amount to satisfy 8(a)(3)?
                            2. Cases we looked at don't deal with specific amount - about giving FAIR NOTICE
                                    a. Complaint is not a game of skill - technicalities don't matter
                                    b. Purpose of complaint is notice pleading
                                    c. Amount makes D take you seriously; gives D notice of the kind of case
                                    d. Giving an "at least," as long as it's informative, is enough
                                    e. Some state systems require specific amount - ad damnum clause
           b. Conley v. Gibson (U.S. 1957) (pg. 35) P filed complaint about union's failure to adequately
               represent. Petitioner argued that complaint failed to state a claim upon which relief could be
               granted. Complaint alleged that Union failed to represent Negro employees "equally and in good
               faith." Charged that the act constituted a violation of right under Railway Labor Act. Asked for
               declaratory judgment, injunction and damages.
                     i. Holding: Claim gave enough information to give notice of grounds of claim. Under
                        general principles laid down in Steele and later cases, complaint adequately set forth a
                        claim upon which relief could be granted.
                    ii. Rule: A complaint should not be dismissed for failure to state a claim unless it
                        appears beyond doubt that P can prove no set of facts in support of his claim which
                        would entitle him to relief. FRCP do not require claimant to give detailed facts upon
                        which claim is based; only require "short and plain statement of the claim" to give D fair
                        notice of the grounds of claim. Discovery and other pretrial procedures allow for more
                        thorough exploration of basis of claim.
                  iii. Importance: FRCP "reject the approach that pleading is a game of skill in which one
                        misstep by counsel may be decisive to the outcome and accept the principle that the
                        purpose of pleading is to facilitate a proper decision on the merits…"
                   iv. Ds argued that Ps’ complaint did not satisfy 8(a)(2)
                            1. 12(b)(6) - allows D to claim that P didn't do what 8(a)(2) requires; 12(c ) - asks
                                for more specificity
                    v. As long as there is some set of facts that P can prove, complaint can't be dismissed
                   vi. Have to assume that plaintiffs allegations are true - that there are facts to be proven - see
                        footnote 1 on page 39
      vii. No evidence needed in complaint  have to take pleadings as true or we would either
            require more than notice pleading does require or we would end up dismissing all of the
            cases (policy reason)
     viii. Conley test was substantive: "no set of facts" - facts don't have to be alleged, can be
            discovered later; very broad - problems arise, restrict it with Twombly
       ix. Formal and substantive sufficiency tests only apply at motion to dismiss stage
                1. Substantively sufficient - alleges behavior by D that is a legal violation for
                    which P is afforded a remedy
                2. Formally sufficient - meets the goal of notice pleading by providing enough facts
                    to notify D about nature of the claim
        x. Complaint doesn't have to cite cases
c. Swierkiewicz (PAP) v. Sorema (DAR) N.A. (U.S. 2002) (pg. 39) P sued for age (ADEA) and
   national origin (Title VII) discrimination. D moved to dismiss under 12(b)(6) for failure to state a
   claim on which relief could be granted. Petitioner appealed dismissal of case based on formally
   insufficient complaint.
         i. Holding: An employment discrimination P need not plead a prima facie case of
            discrimination; P's complaint is sufficient to survive respondent's motion to dismiss.
            Applying the relevant standard, petitioner's complaint easily satisfies 8(a)(2) because it
            gives respondent fair notice of the claims and grounds on which they rest. Also state
            claims upon which relief could be granted under Title VII and ADEA.
        ii. Rule: Complaint must include only "a short and plain statement of the claim showing the
            pleader is entitled to relief." Court may dismiss complaint only if it is clear that no
            relief could be granted under any set of facts that could be proved consistent with
      iii. He has a claim upon which relief can be granted
                1. Formal test: fair notice - identifies violation so the Ds can respond
                2. Substantive: assume allegations are true -> if those facts make him win, he
                    satisfies 8(a)(2)
       iv. Sw. just had to allege facts (didn't have to prove them)
                1. Opportunity later to get more evidence to show allegations are true
                2. See pg. 39 for elements of complaint that are suff./nec.
                        a. Nec: He worked for SOREMA, Chavel was CEO, Chavel demoted/fired
                            him because of national origin and age in violation of the two acts
                        b. Inferred: His age and nationality; Performed satisfactorily/no valid basis to
                        c. As a lawyer, you wouldn't write a complaint without saying your client is
                            over 40 and not American
        v. Erickson v. Pardus says to give more leeway to pro se P, but rules don't say that
       vi. Inferences: Can court infer un-alleged facts?
                1. If we allow inferences, where do we draw the line? Could lead lots of cases to go
                    to expensive pre-trial phase
                2. Model complaint (pg. 43): Should it say negligently? Depends on the inferences
                    required – some are easier than others. Case would probably proceed; most courts
                    (even S.Ct. are likely to side with P and allow complaint to proceed)
      vii. Main purpose of pleadings is notice so defendants can respond
                1. Pleading is not a game of skill - proper decision on merits (err on side of P)
                2. FRCP 8(e): Pleadings must be construed so as to do justice.

d. Burdens (of proof): In federal and state court systems that adopt federal-style notice pleading,
   P's burden is modest; does not have to allege every fact or include every legal authority on which
   P will rely.
         i. Burden of production - obligation to produce enough evidence to create factual dispute
            that factfinder can decide; usually P has burden of production as to each element of his
        ii. Burden of persuasion - factfinder's weighing of evidence that the parties produce
                1. Beyond a reasonable doubt
                2. Beyond a preponderance of evidence
                3. More likely than not
e. Rule 84: Forms are sufficient to satisfy rules, but are not necessary (illustrative)
         i. Form 1 – Case caption
        ii. Form 7 – Statement of jx (both diversity and FQ)
       iii. Form 11 – Complaint for negligence
       iv. Form 30 – Answer presenting defenses under Rule 12(b)
        v. Form 40 – Motion to dismiss under Rule 12(b)
f. Bell Atlantic Corp. v. Twombly (U.S. 2007) (pg. 45) AT&T was broken up into ILECS. 1996
   Telecommunications Act said there couldn’t be monopolies, had to share with CLECs and
   compete with one another. The ILECs didn't compete and tried to prevent CLECs from moving
   in. Complaint alleged that ILECs conspired to restrain trade by: 1) Engaging in parallel conduct
   in their respective service areas to inhibit growth of upstart CLECs (Para. 47); 2) Forming
   agreements to refrain from competing against one another (Para 40,42); and 3) "Upon
   information and belief that Ds have entered into a contract, combination or conspiracy to prevent
   competitive entry in their respective…markets and have agreed not to compete with one
   another…" (Para 51) Ds made 12(b)(6) motion for failure to state a claim upon which relief can
   be granted.
         i. Holding: 12(b)(6) motion granted. In applying FRCP 8(a)(2) (Swierkiewicz) to Sherman
            Act violation claims, complaint requires enough factual matter (taken as true) to suggest
            that an agreement was made; need enough facts to raise a reasonable expectation that
            discovery will reveal evidence of illegal agreement. Require "allegations plausibly
            suggesting (not merely consistent with) illegal behavior." Allegations of §1 conspiracy
            must be placed in a context that raises a suggestion of a preceding agreement, not merely
            coincidentally independent action.
                1. Test:
                        a. Basis for legal claim - agreement or conspiracy to monopolize
                        b. Allegation that might be most directly relevant to that claim - agreement
                            (Para. 51)
                        c. Evidence provided in the complaint that might support claim - parallel
                                i. Parallel conduct is consistent with independent action OR
                                    agreement - just alleging parallel conduct isn't enough
        ii. Importance: Overruled Conley. Sets a plausibility test (must be more than speculative or
            conceivable). Other concerns really made the difference in Swierkiewicz and Twombly,
            even though Conley language gets thrown around a lot.
                1. Outside of antitrust and civil rights cases, most cases passed the Twombly test
                    even before Twombly; those that failed were just way off
                2. A number of civil rights cases got dismissed because were only adequate under
                3. Would Sw. satisfy Twombly?
                             a. Court talks about "details", "specific facts" - might call that substantive or
                                  formal, but it's unclear - doesn't talk about plausibility at all
                             b. Says Sw. is about formal sufficiency, so it's still good law; Twombly is
                                  about substantive
                             c. In Sw., lower ct. talked about inference of discrimination (substantive), but
                                  S.Ct. focused on fair notice (formal)
                                       i. Also had to be substantively sufficient or they wouldn't have
                                          reversed - has to be both formally and substantively suff.
                             d. Applying Twombly test to Sw.:
                                       i. Basis for legal claim - discrimination
                                      ii. Allegation that might be most directly relevant to that claim - fired
                                          because of age and national origin (para. 42, 44)
                                     iii. Evidence provided in the complaint that might support claim -
                                          fired, doing stellar work, replaced by younger, non-Hungarian
                                              1. Consistent with discrimination OR non-discrimination-
                                                   perhaps Chavel just didn't like him; he thinks he was doing
                                                   stellar work but that doesn't mean he was
                             e. Applying Twombly test to Form 11:
                                       i. Negligence
                                      ii. Negligent driving
                                     iii. Car hit the plaintiff
                                              1. Consistent with negligence or non-negligence (reasonable
                      4. We have a problem, because Sw. and Form 11 are sufficient, so why is Twombly
                             a. Which is "more plausible"?
                                       i. Presume only where there is firsthand knowledge
                                      ii. Legislature's job to make this judgment/change to Rule 9
                             b. Antitrust is different - want to encourage negligence and discrimination
                                  actions, discourage antitrust suits
                                       i. Legislature's job to make this judgment/change to Rule 9
                                      ii. Antitrust can be very expensive – shouldn’t proceed unless there’s
                                          clear evidence
                             c. Need more specificity - FN 10, pg. 51 - no dates, etc. - how they
                                  distinguish form 11 - formal sufficiency only, not substantive
                      5. 8(a) is transubstantive - applies across the board, BUT S.Ct. is applying it
                         differently here
                      6. Lower courts are going crazy as a result of this - have no idea what to do
III.   FRCP 15: Amended Pleadings
       a. 15(a): Party may amend pleading once as matter of course: before being served with responsive
          pleading (i.e. answer) OR within 20 days after serving the pleading if responsive pleading is not
          allowed (i.e. answer with no counterclaim) and action isn’t on trial calendar yet.
              i. OTHERWISE, may only amend with opposing party’s written consent or court’s leave.
                 Court should freely give leave when justice so requires.
                      1. Justice requires when: procedural error
                             a. Cases decided on merits, not on technicalities vs. unfairness or prejudice
                                 to other party
                      2. Deny request to amend pleading because of:
                             a. Undue delay
                           b. Bad faith
                           c. Dilatory motive (didn't make a mistake - did something bad for another
                           d. Undue prejudice to opposing party
                           e. Futility of amendment
          ii. Unless court changes it, required response to amended pleading must be made within the
              time remaining to respond to original pleading or within 10 days after service of amended
              pleading, whichever is later.
b.   15(b): To Conform to Evidence If evidence not within issues raised in pleadings is raised at
     trial, court may allow pleadings to be amended to conform to evidence. Court should allow
     amendments to aid in presenting merits and objecting party fails to prove that the evidence
     would prejudice that party.
           i. When issue not raise in pleadings is tried by the parties’ express or implied consent, it
              must be treated as if raised in the original pleadings. Failure to amend during or after trial
              does not affect the result of the trial of that issue.
          ii. Express or implied consent provides both notice and lack of prejudice
c.   15(c): Relation Back: Amendment relates back to the date of original pleading when:
           i. Permitted by the statute of limitations applicable to the action
          ii. The claim/defense arose out of conduct, transaction, or occurrence in original
         iii. It changes the party or the naming of the party against whom the claim is asserted
d.   15(d): Supplemental Pleadings:
           i. Upon motion, court may allow party to serve supplemental pleading which sets forth
              transactions/occurrences/events which have happened since the date of the original
              pleading. Permission may granted even though the original pleading was defective in its
              statement of claim for relief or defense.
e.   Dubicz v. Commonwealth Edison Co. (7th Cir. 2004) (pg. 78) Current and retired employees of
     ComEd alleged pro se that ComEd misrepresented terms of their pension plan. After retaining a
     lawyer, they amended their complaint to allege age discrimination and fraudulent
     misrepresentation. D.Ct. dismissed discrimination claims with prejudice (substantively
     insufficient) and misrepresentation counts without prejudice (formally insufficient because Ps
     failed to plead fraud with the specificity required in 9(b) but left open possibility to amend the
     pleading). Fraud allegations failed to specifically state the dates, persons involved, and exact
     promises ComEd reneged on. Ps did not amend complaint. Eight months later more Ps joined the
     original group and moved to file second amended complaint that added new Ps and cleared up
     fraud allegations. D.Ct. held 8 months was too long; denied the motion and dismissed the case
     with prejudice.
           i. Holding: Court abused its discretion. A party seeking to amend complaint after
              responsive pleading has been filed must get consent of opposing party or ask judge for
              leave to amend. The court should freely give leave to amend when justice so requires.
              Leave should be granted liberally, but district court can deny leave for: undue delay, bad
              faith, dilatory motive, undue prejudice to the opposing party by allowing the amendment.
              Delay alone may not be sufficient to deny, but it matters if the delay prejudices the
              opposing party. ComEd argued it was prejudiced by the delay because witnesses'
              memories faded and documents were lost, but did not give any specific examples. Also,
              statute of limitations on original claim has not run. There may be reasons why appellants
              should not be allowed to amend the complaint, but prejudice as described by ComEd is
              not sufficient. Ct.App. reversed.
          ii. Important:
                1. Fraud: matter of fact, so can't file 12(b)(6); must be raised as affirmative defense
                2. Statute of limitations: can file 12(b)(6) motion because statute of limitations is a
                   matter of law, not fact; if statute of limitations has run, no basis for the claim
                3. Abuse of discretion - very deferential to district court
                       a. Ct. App. says undue delay is not sufficient on its own - sounds like de
                            novo review - not a question of how long the delay is – D.Ct. applied the
                            wrong legal rule (said that delay can be enough, when previous cases have
                            said that it cannot be enough)
f. Tran v. Alphonse Hotel Corp. (2d Cir. 2002) (pg. 82) D didn’t pay overtime; violation of FLSA
   and union contract because D bribed union. Wrong occurred in July 1991; P filed complaint in
   Oct. 1991. RICO statute of limitations expired in July 1995; P moved to amend to add RICO in
   July 1997. Whether RICO claim related back to Oct. 1991 (and would therefore be within the
   statute of limitations).
        i. Holding: Ct. App. said it did not under 15(c)(1)(B) – would only relate back if it arose
           out of the same conduct/transaction/occurrence.
                1. RICO claim (bribed union officials in order to get union to not pay employees)
                   had to arise out of the FLSA claim (failure to pay overtime)
                2. Ct. App. said there was not enough notice in the original complaint of this claim
                       a. But Ds know that they were bribing the union…
                       b. OR Prejudice against D? RICO allows treble damages…
                       c. Statute of limitations – REPOSE
                                 i. At some point, you are free from litigation; D thought it was home-
                                    free, so P cannot amend the complaint; will interpret same
                                    conduct, occurrence, transaction so as not to prejudice D
                3. Standard of review: abuse of discretion
                       a. Decision is problematic because if there was any indication that this fell
                            within the conduct/transaction/occurrence, Ct. App. should not have
                            reversed; D.Ct. didn’t make egregious error
                       b. The original case seems like a big conspiracy
                       c. If P had tried to assert fraud, he would not have had enough information to
                            comply with heightened pleading standard
                       d. If you refer to any predicate acts, that's sufficient, but later say you have to
                            refer to specific predicate acts - very ambiguous
                       e. D. Ct. "amended" the RICO statute of limitations (procedural way of
                            changing legal unfairness) and interpreted Rule 15 broadly; Ct. App.
                       f. Slayton v. Am. Express Co. (2d. Cr. 2006) overruled part of Tran and said
                            that relation back should be reviewed de novo; many courts still use Tran
                4. Relation back is limited to:
                       a. Give other party notice
                       b. Avoid prejudice to opposing party
                5. If RICO claim had been brought up in trial, there was implied consent and
                   therefore must be treated as if it had been raised in pleadings; can amend the
                   pleadings after trial to conform to what happened in trial
g. Other rules involving notice and prejudice:
        i. 8(c) - affirmative defenses (Carter)
       ii. 8(a) and 12(b)(6) - formal sufficiency
      iii. 15(a) (Dubicz)
      iv. 15(c)(1)(B) (Tran)
             v. Deciding cases on the merits without procedural technicalities getting in the way vs.
                being fair and avoiding prejudice on either party
IV.   FRCP 11: Sanctions (only rule besides 37 that can punish lawyers)
      a. 11(a): Signature: Every pleading must be signed by at least one atty and contain contact info.
      b. 11(b): Representations to the Court: Atty certifies to the best of his knowledge after
         reasonable inquiry under the circumstances:
               i. Paper is not being presented for any improper purpose (to harass, cause unnecessary
                  delay, or needlessly increase litigation costs)
              ii. The claims, defenses, and other legal contentions are warranted by existing law or by a
                  nonfrivolous argument for extending, modifying, or reversing existing law or
                  establishing new law
             iii. The factual contentions have evidentiary support or will likely have evidentiary support
                  after a reasonable opportunity for further investigation or discovery [reflects notice
                  pleading standard – can always gather more facts later]; AND
             iv. The denials of factual contentions are warranted by evidence and reasonably based on
                  belief or lack of information [makes general denial risky].
              v. N.B. Have to have made reasonable inquiry under the circumstances (varies by situation)
                  before you can certify that you reasonably believe it's true.
                      1. Depends on the information obtained, not what else you might be able to obtain
                      2. Can rely on your client's information when his statements are objectively
                      3. If you have information that is not objectively reasonable, you have to inquire
      c. 11(c): Sanctions: Court can impose sanctions on atty, law firm, or party responsible for 11(b)
               i. Initiated by:
                      1. Motion: must be made separately from other motions and must describe specific
                           conduct that violates 11(b). Must not be filed if the challenged
                           claim/defense/denial is withdrawn or corrected within 21 days after service or
                           time period set by court.
                               a. Safe harbor provision – allows chance to correct mistakes
                      2. The Court (sua sponte): may order atty, law firm, or party to show cause why
                           conduct hasn’t violated 11(b). No safe harbor here; more serious.
              ii. Nature of sanctions:
                      1. Intended to deter repetition of comparable conduct by same or other parties. Can
                           include: nonmonetary directives, penalty paid to court, payment to movant for
                           atty’s fees and expenses arising from the violation.
                      2. Can’t impose monetary sanction for 11(b)(2) violation.
                      3. Court can’t impose monetary sanction on its own unless it issued show-cause
                           order before dismissal or settlement.
      d. 11(d): Above rules don’t apply to discovery violations. Rule 37 governs discovery sanctions.
      e. Patsy's Brand, Inc. v. IOB Realty, Inc. (S.D.N.Y. 2002) (pg. 87) P said they started selling
         sauce with labels in 1994 and Ds later started selling sauce under the same name. D's opposition
         to the application included an affidavit from one of the principals in which he swore a lot of
         things that contained factual discrepancies. Did new counsel (P& E) have a reasonable basis for
         accepting the false statements of their client?
               i. Holding: Court does not dispute counsel's assertion that they acted in good faith, but they
                  closed their eyes to the overwhelming evidence (reasonable belief) that statements in the
                  clients' affidavit were untrue. Rule 11 sanctions are in order. Ultimate responsibility rests
           with the firm. The firm must ensure its partners and associates adhere to the highest
           ethical standards. Few rules governing lawyers are as important as the notion that lawyers
           not offer evidence they know to be false. Rules Committee could not have intended for
           Rule 11 to protect lawyers from sanctions for making false fact statements because a
           witness was willing to sign an affidavit (perjury). Before 1993, Rule 11 said a lawyer
           could rely on a client's claims "when those statements are objectively reasonable." When
           P&E took over, D's previous lawyer had already withdrawn because the original affidavit
           had been false in very material respects. Court believes the firm could not have
           reasonably believed that statements in the new affidavit were true. Court sanctioned firm
           partner to circulate opinion to every member of the firm with memo re: ethical conduct.
       ii. Rule: Objective reasonableness is the standard on which to judge counsel's conduct.
f. In Re: Pennie & Edmonds LLP (2nd Cir. 2003) (pg. 91) (appeal of sanction from above case)
   Court vacated sanctions.
        i. Holding: When a sua sponte Rule 11 sanction denies the lawyer the chance to withdraw
           or correct the challenged document pursuant to the "safe harbor" provision of 11(c)(2),
           appropriate standard is subjective bad faith. D.Ct. accepted the firm's assertion that they
           acted in subjective good faith. Rule 11 was amended in two ways: 1) “To the best of the
           person's knowledge…the allegations and other factual contentions have evidentiary
           support.”2) "Safe harbor" provision was added, enabling parties to withdraw or correct a
           challenged submission. The motion for sanctions only gets filed after 21 days if the
           submission is not withdrawn or appropriately corrected. The rule-makers intended court-
           initiated sanction proceedings to be used only in egregious circumstances. The mental
           state for liability for sanction motions is objective unreasonableness.
       ii. P&E contended that because there was no "safe harbor" protection, the more rigorous bad
           faith standard should apply. Absence of "safe harbor" could be so strict as to deter
           cautious lawyers from submitting certain documents/facts for fear that a judge may
           consider their submission to be objectively unreasonable. Risk is minimized when you
           apply the bad faith standard to submissions without "safe" harbor." Better to apply
           the heightened standard and risk a jury giving unwarranted weight to a few submissions a
           judge would consider objectively unreasonable than to withhold from jury many
           submissions that cautious lawyers dare not present.
      iii. Concurring/Dissenting Opinions: A plain reading indicates that a single mens rea
           standard applies to sanctionable conduct, regardless of who initiates the motion or
           whether the lawyer has chance to correct or withdraw. Under a plain reading, the
           procedural distinctions have no bearing on the state-of-mind requirements of (b).
      iv. Importance: Court's imposition of Rule 11 sanctions is reviewable on appeal only for an
           abuse of discretion.
                1. When no safe harbor, use bad faith standard. When there is safe harbor (by
                    motion), use objectively unreasonable test.
                2. Split between district and circuit courts because subjective bad faith test is harder
                    to apply.
                        a. Sanctions kill reputations. Easier to accuse attys of being unreasonable
                             than having acted in bad faith.
       v. 2nd circuit is kind of unique; other circuits have adopted the district court objective
           position; district courts in 2nd circuit are probably making a lot more bad faith judgments
g. Frantz v. U.S. Powerlifting Federation (7th Cir. 1987) (pg. 99) Complaint charged the IPF,
   USPF, and Conrad Cotter (president of USPF) with conspiring to monopolize weightlifting. Ps
   were disqualified from participating in IPF events because they competed in a rival federation's
             competition. D.Ct. held that Cotter is entitled to attorney's fees (Rule 11) because Ps didn't have
             plausible theory about how he could have conspired with USPF.
                  i. Holding: The complaint was doomed from the start after Copperweld and therefore
                     sanctionable. Rule 11 requires attys to do research before filing to determine applicable
                     legal rules. Complaint was frivolous, so P's counsel should be sanctioned. Whether Cotter
                     or the Treasury is the appropriate beneficiary is for the lower court to decide.
                 ii. P’s atty inserted a frivolous claim in the complaint because of Copperweld (impossible
                     for corp. or assn. to conspire with own officers). Violated 11(b)(2), because didn't make
                     reasonable inquiry, or would have found the Copperweld decision.
                iii. If he wanted to change existing law, had to have nonfrivolous argument for extending,
                     modifying, distinguishing, or reversing existing law
                         1. Couldn’t here because S.Ct. ruled on Copperweld. If Copperweld was really
                             outdated, D.Ct. could say that it probably should be changed.
                iv. Nonfrivolous argument - could you argue it in front of a judge (or parents/spouse) with
                     a straight face?
                 v. Process: D moves to dismiss under 12(b)(6) and submits memo; P submits memo in
                     opposition to dismissal explaining why Copperweld should be distinguished
                         1. If D didn't mention Copperweld in motion to dismiss, P's lawyer has obligation to
                             disclose it, but you can put your own spin on it
                         2. P would say: Copperweld does not guard/control this suit, because…
                vi. USPF claim – D.Ct. said it was ok under 11(b)(2) because there was some correct legal
                     theory and facts in the complaint (colorable, although unsuccessful)
                         1. Ct. App.: need a reasonable investigation of law/facts for EACH claim; just
                             because one is ok, doesn't mean you can add a bunch of extra unsubstantiated
                             crap. Each claim must be researched and substantiated.
                         2. Remanded the case so each claim could be investigated
          h. Hypos
                  i. Your client claims she was injured in a car accident
                         1. Ask her for details
                         2. Ask for witnesses and details if you disbelieve her
                         3. Ask for medical records/doctor
                 ii. Same hypo, but statute of limitations runs out tomorrow
                         1. What is reasonable under the circumstances (time crunch) is different - maybe just
                             ask her for details
                iii. Same hypo, but you go to see the client and she is playing tennis
                         1. You have obligation to monitor the reasonability of your allegations
                         2. Before the 21 days are over, do further inquiry; if you ultimately decide that the
                             claim is invalid, you would withdraw counsel
                         3. Even if other party doesn't move for sanctions, the court could do it sua sponte
                         4. If you keep doing this, it could ruin your reputation; you want the court to give
                             you the benefit of the doubt; also might have to pay other party's fees if you get
Joinder of Claims: FRCP 18, 42, 13
 I.   FRCP 42:
        a. Consolidation – court can consolidate any actions that “involve a common question of law or

          b. Court may order separate trials to avoid prejudice or expedite on any claim, CC, crossclaim, or
 II.   FRCP 18: Joinder of Claims
          a. “A party asserting a claim, CC, xclaim, or 3rd-party claim may join as many claims as it has
              against an opposing party.” [NOT arising out of the same transaction/occurrence]
          b. Permissive – allows joinder of claims, but res judicata (Rule 13) might bar future claims
III.   Hypo
          a. Car accident: P's claims: 1) property, 2) personal injury, 3) assault, 4) breach of contract for him
              having agreed to paint your house
                   i. Judge can always sever and allow separate trial for this claim to make easier for jury -
                  ii. Rule 18 doesn't require you to bring all of these claims together, BUT if you don't bring 1
                      and 2 together, because they arise out of the same transaction or occurrence, you might
                      be precluded from bring one of them later in another trial (preclusion doctrine)
                 iii. 1 and 4 not transactionally related, so no preclusion
                 iv. 1 and 3 - more difficult because assault came after the car accident
IV.    FRCP 13: Counterclaim and Crossclaim
          a. 13(a): Compulsory Counterclaim
                   i. Pleading must state as CC any claim the pleader has against an opposing party at the time
                      of service if: it arises out of the same transaction or occurrence that is the subject matter
                      of the opposing party’s claim and doesn’t require adding another party over whom the
                      court can’t have jx
                           1. If not raised, will be barred in future litigation
                           2. CC alleges liability against the opposing party and could be brought as separate
                              suit; NOT a defense, which denies liability and is brought in an answer
          b. 13(b): Permissive CC
                   i. Pleading may state as a CC any claim that is not compulsory
                  ii. Not same transaction/occurrence
                 iii. Not barred later if not raised now
                 iv. Require independent jx
          c. 13(c): Can seek any kind of relief in CC.
          d. 13(e): Can file supplemental pleading asserting CC that matured after serving earlier pleading
          e. 13(f): Omitted CC: Court may permit party to amend pleading to add CC if it was omitted
              through oversight, inadvertence, or excusable neglect, or if justice so requires
 V.    Test for whether 13(a) or (b) applies (from Painter):
          a. “Same evidence”
                   i. If issues of fact and law are essentially the same in claim and CC
                  ii. If claim would later be barred by res judicata
          b. “Logical relationship” (preferred test, but usually both have same result)
                   i. Not necessarily the same evidence, but logical relation between two pleadings might
                      make it compulsory
VI.    Comparisons and SMJ
          a. 13 and 18 both allow parties to bring claims that are not transactionally related AND both are
              bound by the same requirements for transactionally related claims (if P fails to bring a
              transactionally related claim, can't bring suit later; if D fails to raise a transactionally related
              counterclaim, can't bring it later)
          b. For both federal question or diversity jx, as long as there's jx over the original claim, there's supp
              jx over the CC if it's compulsory and there isn't supplemental jx if the CC is permissive

                      i. Always look for independent jx first (like if CC is worth >$75K or if it’s fed question),
                         then go for second analysis
            c. Look at purpose of the rules – same transaction/occurrence doesn’t always mean the same thing:
                      i. JX - same transaction/occurrence is inclusionary concept - designed to be efficient - no
                         reason not to include various things in lawsuit - very broad interpretation of same
                     ii. Countervailing interest in justice and not foreclosing suits - want preclusion to be narrow
                         because don’t want people kicked out of court just because they made a mistake and
                         didn't litigate something when they were supposed to
                              1. Can def. still get kicked out of court, but preclusion should be narrowly construed
                   iii. Relation back rule - intermediate - not super narrow or broad
VII.    Painter v. Harvey (4th Cir. 1988) (pg. 363) P sued cop for excessive force (and possible rape) during
        arrest; cop CC-ed for libel based on P’s communication with city council and newspaper
            a. If not transactionally related, can’t come under supp jx
            b. Asks whether CC is sufficiently related to the original claim
            c. CC is compulsory for jxal purposes
                      i. Benefits: efficiency, consistent verdicts, cheaper
            d. Does CC relate back under 15(c)(1)? Maybe
                      i. Benefits: case heard on merits because new suit not an option
                     ii. Detriments: prejudice to P for lack of notice
            e. What if D wanted to amend his answer to add a libel counterclaim, but the statute of limitations
                 had passed?
                      i. Rule 13(f) - can amend if claim was omitted through oversight, inadvertence, excusable
                         neglect, or if justice so requires
                     ii. Rule 15(a)(2) - can amend when justice so requires
                   iii. Whether the fact that statute of limitations has expired matters
                              1. 15(c)(1)(B) - relation back if relates to same transaction or occurrence
                              2. 13(a) - compulsory if same transaction/occurrence (same standard)
                    iv. Was there notice/information of the libel claim? Was there reason for P to think D would
                         bring libel claim?
                              1. This is about what happened in the police car, not what happened at the town
                              2. Just because the same language is used, doesn’t mean it means the same thing
                                      a. Under Tran, this does not relate back
            f. D brings separate suit for libel (no statute of limitations problem)
                      i. Precluded if: It arises out of the same transaction/occurrence (would have been a
                         compulsory counterclaim, and therefore barred from raising it ever again)
                     ii. Town meeting vs. what happened in the police car - there's at least an argument that it
                         isn't the same transaction/occurrence
VIII.   Hypos
            a. Car accident: D's claims: 1) property damage to car, and 2) breach of contract
                      i. Claim 1 - 13(a) says it arose out of the same transaction or occurrence, so you must bring
                         it (compulsory)
                     ii. Claim 2 – (13(b)) may bring it, but it's not required (permissive)
            b. P - Title VII - federal question; D - counterclaim - breach of contract (no ind. SMJ)
                      i. BUT if counterclaim arises out of the same transaction or occurrence, then there is
                         ancillary/supplemental federal jx
                     ii. Because there is federal jx over the claim, can be supplemental federal jx over
                         counterclaim, but counterclaim would have to be compulsory
                iii. What happens in Painter
         c. Sherry gets fired, claims it violates Title VII; school comes back for breach of contract
                  i. Same evidence, but not logical relationship
                         1. One occurrence is the firing; other is failure to adequately teach - doesn't seem to
                             be the same transaction, BUT the facts and law are the same
                 ii. So we have both same evidence and same facts and law; BUT you could argue it other
                     way - these are not connected at all
IX.   Rule 13(g): Crossclaim
         a. Pleading may state a crossclaim if the claim arises out of the transaction/occurrence that is the
             subject matter of the original action or of a CC, or if the claim relates to any property that is the
             subject matter of the original action.
         b. Crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or
             part of a claim asserted in the action against the crossclaimant.
         c. Never compulsory – can always sue later
 X.   Rule 13(h): Joining Parties
         a. Parties may be joined in accordance with Rule 19 or 20 to CC or xclaim.
XI.   Hypos
         a. Builder puts on roof and it leaks; P sues: 1) builder and 2) manufacturer of roof tiles
                  i. 2 could crossclaim 1 under 13(g) for defective installation - he MAY bring a crossclaim,
                     but also could litigate later
                 ii. Builder also bought tiles for another house and never paid - 2 can't bring this suit because
                     not transactionally related
                iii. 1 and 2 now opposing parties for purpose of crossclaim
                         1. If builder blames manufacturer's tiles for leaky roof, 1 makes compulsory
                             counterclaim (13(a)) against 2
                         2. If 2 had never sued originally, the above would be a crossclaim (13(g))
                                 a. If not transactionally related, would be permissive

Joinder of Parties: FRCP 20, 19
 I.   FRCP 20: Permissive Joinder of Parties (P’s Rule)
        a. Ps can be joined if:
                i. they assert any right jointly, severally, or in the alternative with respect to or arising out
                   of the same transaction/occurrence or series of transactions/occurrences; and
               ii. Any question of law or fact common to all Ps will arise
        b. Ds can be joined if:
                i. Any right to relief is asserted against them jointly, severally, or in the alternative with
                   respect to or arising out of the same transaction/occurrence or series of
                   transactions/occurrences; and
               ii. Any question of law or fact common to all Ps will arise
II.   Hypos:
        a. Two people buy Hondas and the dealership overcharges both
                i. 20(a)(1) - Ps may be joined for broad reasons
                       1. In common: question of federal law
                       2. Not in common: how much we were overcharged, damages
               ii. As long as you have at least one question of law or fact and it arose out of the same
                   occurrence, you can join as Ps
        b. Driving Honda, tire blows out, and P is injured; can sue dealership and tire manufacturer?
                i. Under 20(a)(2): there are questions not in common , but there are ones in common
                       1. Have to show the accident occurred and harm occurred for both
                            2. Have to prove other things individually against each - negligent in different ways
                   ii. VERY broad joinder rule - ONLY have to have one question of law or fact in common
           c. Two Ps suffer tire blowouts
                    i. Can combine Rule 20 - combine last two answers for same reasons as two hypos above
III.   FRCP 19: Required Joinder of Parties (D’s Rule) Joint tortfeasors are never necessary parties
           a. 19(a): (re: necessary parties) Person must be joined (if doesn’t destroy SMJ) as a party if:
                    i. in their absence, court can’t accord complete relief among the existing parties; or
                   ii. that person claims an interest relating to the subject of the action and disposing of the
                        action in their absence may:
                            1. impair or impede the person’s the person’s ability to protect the interest; or
                            2. leave an existing party subject to substantial risk of incurring extra obligations
                                [mostly injunctive relief – do x vs. don’t do x; two parties claim each owns the
                  iii. Court must order a required party to be joined as a party. If joined party objects to venue
                        and joinder would make venue improper, court must dismiss the party.
           b. 19(b): (re: indispensable parties) If a person who is required to be joined if feasible can’t be
               joined, court must determine whether in equity and good conscience the action should proceed
               among the existing parties or be dismissed. The factors the court should consider include:
                    i. Prejudice to that person or existing parties
                   ii. Extent to which prejudice can be lessened/avoided by:
                            1. Protective provisions
                            2. Shaping the relief
                            3. Other measures
                  iii. Whether judgment rendered in the person’s absence would be adequate
                  iv. Whether P would have an adequate remedy if the action were dismissed for non-joinder
IV.    Makah Indian Tribe v. Verity (9th Cir. 1990) (pg. 388) P wanted greater allocation of fish and for
       secretary to follow correct procedures. D made 12(b)(7) motion to dismiss for failure to join a party
       under Rule 19; alleged that other tribes were necessary parties. Case could go forward on procedural
       issue because forcing Secretary to comply would help all tribes.
           a. Under 19(a) is the party (absent tribes) necessary?
                    i. 19(a)(1)(A) - can complete relief be granted to the existing party(ies)? OR
                         a. Court: can't increase the total allocation of ocean fish because other tribes have
                             treaty rights to the other fish; fixed number of fish; says complete relief can't be
                             granted because will be taking fish away from others if we reapportion the
                         b. Us: complete relief can be granted to the Makah; not like the other tribes are holding
                             onto the fish
                  2. 19(a)(1)(B)(i) - will the 3rd party interest be impaired or impeded?; OR
                         a. Court: yes, will be taking fish from other tribes
                         b. Us: yes, will be taking fish from other tribes
                  3. 19(a)(1)(B)(ii) - might there be potential for inconsistent obligations?
                         a. Court: federal government is at risk; will get sued by other tribes
                         b. Us: feds will get screwed by this
                  4. ONLY need one of the above for party to be necessary - doesn't matter that we disagree on
           b. Court must order the parties joined under 19(a)
                    i. Doesn't work here because other tribes have sovereign immunity so would have to waive
                   ii. Also wouldn't work if court had no personal jx, no SMJ

          c. Are 3rd party tribes "indispensable"? Will the case proceed in absence of necessary parties or
             should case be dismissed under 19(b)?
                  i. 19(b)(1): is any party (existing or 3rd) prejudiced? [dismissal]
                         1. Court: yes, absent parties will be prejudiced
                         2. Us: yes, the pie is limited (same question as impairment of 3rd party)
                 ii. 19(b)(2): can relief be shaped to reduce prejudice? [doesn't go for dismissal or proceed]
                         1. Court: relief can't be shaped because the pie is limited (VERY rare - usually the
                              court can offer partial relief or do something to shape relief) - nothing to be done
                         2. Us: agree
                iii. 19(b)(3): whether there's an adequate remedy in the absence of the third party [We
                     concluded need not be dismissed on this issue]
                         1. Court: No, infringes on other parties
                         2. Us: yes, although it comes out of the absent parties' share
                iv. 19(b)(4): whether there's an alternative forum [proceed, because there's no other forum]
                         1. Court: no
                         2. Us: no
                 v. Pitting prejudice to the 3rd party against the fact the Ps have nowhere else to go - most of
                     the time, there will be an alternative forum and often the relief will be able to be shaped
                vi. Dismissal is the exception, not the rule - usually courts can work something out
               vii. Relief can almost always be granted, UNLESS the third party has possession of the thing
                     – like if the third party was holding the fish

Third Party Practice: FRCP 14
  I.   14(a): D (3rd-party P) may implead non-party who is liable to it for all or part of the claim against it.
          a. Timing: 3PP must obtain court’s leave by motion if it files the 3rd-party complaint >10 days after
              serving its original answer
          b. 14(a)(2): 3rd-party D:
                    i. (A): must assert any defense against 3PP’s claim under Rule 12 (or 8)
                   ii. (B): must assert any 13(a) compulsory CC against 3PP and may assert any 13(b)
                       permissive CC against the 3PP or any 13(g) xclaim against another 3PD
                  iii. (C): may assert against P any defense that the 3PP has to P’s claim
                  iv. (D): may also assert against P any claim arising out of the same transaction/occurrence
                       that is the subject matter of P’s claim against the 3PP
          c. 14(a)(3): P may assert against 3PD any claim arising out of the same transaction/occurrence that
              is the subject of P’s claim against the 3PP. 3PD must then assert any defense under Rule 12 and
              any 13(a) CC, and may assert any 13(b) CC or 13(g) xclaim. BEWARE OF KROGER
                    i. P’s 14(a)(3) claims against 3PD require independent jx
          d. 14(a)(4): Any party may move to strike 3rd-party claim
          e. 14(a)(5): 3PD may implead a nonparty who is or may be liable to the 3PD for all or part of the
              claim against it
          f. 14(b): When a claim is assert against P, P may implead if this rule would allow the D to do so.
 II.   When does Rule 14 confer its own jx?
          a. Impleader: As long as there’s jx for the original claim, no additional SMJ necessary in the
          b. Claims by impleaded party against original P:
                    i. 3PD’s defenses, CCs, and xclaims are governed by same rules as normal Ds are
                   ii. 3PD’s claims against P must be related to the transaction/occurrence
III.   Lehman v. Revolution Portfolio LLC (1st Cir. 1999) (pg. 377)
          a. Can bring additional claim under 18(a) if properly impleaded under another claim that arose out
              of the same transaction or occurrence AND in this case, they claim that the additional claim is
              transactionally related
                   i. For example, can join an unrelated claim to an indemnification claim using 18(a)
          b. Court can't be forced to determine the merits of all defenses potentially available to the orig
              defendant as a precondition to allowing that defendant to file a 3rd-party complaint (pg. 380)
          c. Rule 14 is pretty narrow, but Lehman seems to make it really broad
                   i. Underlying purpose of 14 meant to allow, but limit, the ability of 3rd party to shape
                      lawsuit, and Lehman seems to break it wide open
                  ii. If court can see that additional claim has no merit (frivolous), Court can dismiss the
                      original claims and the additional claim
                 iii. There's a difference between meritless claims and claims that are losers
 IV.   Asher v. Unarco Material Handling, Inc. (E.D. Ky. 2008) (pg. 382) All about 13(g) crossclaims
          a. Anyone brought in by the same party is a coparty – think about it like a family tree
          b. If not coparties, can’t use 13(g)
          c. Some courts define “coparty” differently:
                   i. Any nondiverse/nonopposing party?
                  ii. Any parties on the same side of the main suit?
          d. Bizarre rule – makes people have to start new suits that are transactionally related
  V.   Thomas v. Barton Lodge II, Ltd. (5th Cir. 1999) (pg. 384)
          a. Broadest interpretation of Rules 13 and 14 – 3rd-party Ds can sue original Ds under 14(a).
          b. If 3PDs can join parties to resolve claims related the claim made against them, they should be
              able to bring those claims against parties already involved in the suit. Nonsensical for 3PD to
              have to file separate suit against original D and request joinder. So, 3PD can file crossclaim
              against original D.
          c. No binding precedent on crossclaims, so apply both Asher and Thomas and explain which
              is better.
See Joinder Worksheets and Problem for Drawings

Choice of Law (Erie Doctrine)
  I.   Swift v. Tyson (U.S., 1842) (pg. 588)
          a. Hypo: 1908 - TN D hits GA P's buggy with motor car
                   i. GA has statute that makes op of motor car dangerous activity with strict liability; every
                      other state has negligence
                                                                Swift -Fed. Ct.
                               GA state statute         S/L     S/L
                               GA judicial decisions    S/L     negligence
                ii. P wants to file in state court to get s/l (could move to TN; assign claim to TN); D wants
                    to remove to fed ct. to limit damages because will only be about negligence
                        1. Problem with Swift is that it can be manipulated - P can do lots of things to benefit
           b. Hypo today: snowmobile accident
                                                                Erie -Fed. Ct.
                                GA state statute        S/L     S/L
                                GA judicial decisions   S/L     S/L

                 i. Erie changes only when there are judicial decisions, but no statutes - common law also
                ii. P can file in GA state or federal court; point of Erie is that results in state and fed ct
                    should be identical, so doesn't matter where you file
          c. Congress passes NSRA snowmobile statute (negligence); still have s/l in GA
                 i. P brings suit under federal statute in fed ct.
                        1. Go with federal negligence statute - federal question, not diversity jx
                        2. Erie only applies to diversity jx
                ii. P now brings under NSRA (count 1) and GA tort law (count 2)
                        1. SMJ over federal claim; supp jx over state claim because from the same
                        2. Ct. applies fed standard to fed count (negligence) and state standard to state count
          d. Congress decides it wants to help snowmobile industry - doesn't like s/l
                 i. Can Congress change GA law? NO. Congress can't tell states what their laws will be
                ii. Make all snowmobile litigation governed by federal statute NSRA - preemption?
                        1. YES – like FDA drug labeling preemption case before SC today

III.   Erie Railroad Co. v. Tompkins (U.S, 1938) (pg. 590): Court reversed Swift by holding that UNLESS a
       matter is governed by the U.S. Constitution or an act of Congress, state law should govern in
       federal diversity cases whether made by state legislature or state supreme court. Exact source
       should make no difference to a federal court.
          a. Court reasoned that neither Congress nor the Courts have the power to declare substantive
              rules of law in individual states. This is contrary to the system of federalism.
          b. Court unconstitutionally usurped state power by disregarding legitimate state made law. Should
              be no distinction between statutes and common law b/c they are both legitimate sources of
          c. Erie is about substantive law - sometimes hard to tell substance and procedure apart

IV.    Rules Enabling Act - U.S.C. § 2072: Erie must be viewed in light of this, promulgated in 1934
          a. Rule of Law (Per subsequent decisions): Federal courts apply their own procedural rules in
              common law diversity cases, but must follow the substantive law promulgated by the applicable
              state. As defined by Erie, substantive law includes (1) statutes and (2) common law.
          b. The “substantive v. procedural” distinction was not stated outright in Erie, but makes sense in
              light of the REA, which gave the Supreme court power to issue procedural rules to be used in
              federal courts (even when hearing diversity cases). In light of Act, clear that Erie concerned
              with substantive law only.
          c. “Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict
              with such rules shall be of no further force or effect after such rules have taken effect.”
              (changing/making substantive state law)

 V.    Guaranty Trust Co. v. York (U.S. 1945) (pg. 599): Claim barred by state statute of limitations was
       brought in federal court on diversity grounds. Court reconfigures the distinction between substance and
       procedure and holds that state law should apply if it (1) determined the recovery available or (2)
       determined the outcome of the case (Test 1: “outcome determinative”). Since the claim would be
       barred under state statute of limitations state law should apply.
          a. Reasoned that Erie policy meant to ensure that the outcome of a suit borne of a state cause of
             action heard in federal court on diversity grounds should not lead to a substantially different
             result if it was heard in state court.
          b. Federal court shouldn’t afford recovery if the right to recover is barred by the State (re: statute of
             limitations) nor can it substantially affect enforcement of the right as given by the State. Erie
             promotes uniform application of the law within a given state.
          c. Erie doctrine applies equally to equity suits and suits at law.
          d. Criticism: Don’t ALL rules contribute to/determine the outcome of litigation (including all
             procedural rules)?

 VI.   Ragan v. Merchants Transfer & Warehouse Co. (U.S. 1949) (pg. 603): Court held that FRCP 3 (action
       is commenced upon filing) should not override the state statute of limitations for a tort claim (action is
       commenced upon service). Statute of limitations lapsed and court held that where one is barred from
       recovery in the state court he should likewise be barred from recovery in federal court as well.
           a. Federal courts must maintain rights enjoyed under local law in diversity cases.
           b. Following local law, substantive or procedural, creates the consistency of application.
           c. Dissent: Court moved too far from Erie. Never intended to take away the authority of Congress
              to control diversity litigation in the federal courts, but now it effectively rests with the states.
           d. Congressional power and the F.R.C.P. were at stake. Must separate procedure from substance.
              The misguided/mechanistic application of Erie and York is not the way to do it. Should be
              governed by the policies that designed the separation of powers in the first place.

VII.   Basic choice of law test after Erie/York/Ragan: Is the federal rule outcome determinative (re:
          a. Would application of the federal law encourage forum shopping?
          b. Would application of the federal law create inequities?
          c. Hypo: P files complaint; D answers complaint 25 days after complaint is served
                   i. State rule allows 30 days to answer; FRCP 12 allows 20 days to answer
                  ii. P moves to dismiss the answer; this affects the outcome, so seems substantive, BUT
                      we're talking about the FRCP!
                 iii. Bomar (pg. 604) - said filing of complaint tolls the statute, but that was a federal question
                 iv. York and Ragan say that in diversity cases, FRCP don't matter if state rule trumps - looks
                      like FRCP are in trouble from the very start
                          1. FRCP aren't procedural (dangerous)
                          2. Doesn't tie in with purposes of Erie (see below) or our instincts
          d. Identify substantive rule by figuring out the purpose behind allowing substantive state laws to
                   i. Avoid forum shopping
                          1. Taxi case showed how far you could stretch this
                  ii. Avoid inequity/unfairness - happenstance of citizenship shouldn't prejudice P or D
          e. In days-to-answer hypo from above:
                   i. Effect on forum shopping - 20 or 30 days doesn't affect whether P brings case in fed or
                      state court (only a little forum shopping here, if at all)
                          1. We don't want this to be substantive - this is a timing rule, so our instincts are to
                              call this procedural
                  ii. Effect on inequity?
                          1. You know the court it's filed in and you should know the rules - so not unfair
                          2. D loses in fed court, but not state court - could create unfairness, but if you know
                              the rules, you play by them
VIII.   Sibbach v. Wilson (U.S. 1941) (pg. 607): Diversity case where P argued that she need not undergo a
        physical as per FRCP 35, b/c this was beyond the authority of the REA (state where court sat held such
        an order improper). Court ruled that FRCP should be enforced b/c it as not beyond the scope of the
        REA and upheld the validity of the FRCP. Court didn’t even mention Erie.
            a. Substantive v. procedural
            b. Asks “whether rule really regulates procedure.” Later cases use “arguably procedural.”
            c. How could Rule 35 be “procedural” when the Court found the statute of limitations “substantive”
               in York and refused to allow Rule 3 to supersede local law in Ragan? Seems completely
               contradictory. If Rule 35 is procedural, pretty much anything is.
            d. Real question whether or not the federal rule was enacted pursuant to congressional authority
               OR merely the ordinary judicial process of common law development.
            e. Whether court can make P undergo physical exam certainly seems substantive if timing issues
               are substantive
            f. Probably would change the outcome - P fought hard to get this to the S.Ct.  substantive
                    i. YET, court held it was an issue of procedure so it applied over contrary state rule
            g. Test 2: whether it (really) regulates procedure/whether it's arguably procedural (pg. 609)
                    i. Everything is arguably procedural if Rule 35 is arguably procedural
                   ii. Completely different from outcome-determinative

 IX.    Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (U.S. 1958) (pg. 605): Court recast Erie as a test
        that balances state and federal interests.
            a. Important distinction: in order for York to apply there must be high likelihood of different
                outcomes. Looks at the issue when dispute arises.
            b. Lasting insight: in some instances a federal countervailing interest might outweigh the Erie-
                York command that state law apply.
            c. **Rarely cited since it was decided
            d. "Integral part" of the statute/"bound up with [substantive] rights and obligations" (pg.
                    i. Slightly harder/expanded version of Erie - sometimes have to look beyond statute and
                       see if they're so integral that state wanted them to be substantive part of statute
            e. Test 3: balancing test - compare state and federal interests
                    i. Totally vague
                   ii. S.Ct. has kind of made it go away

  X.    Hanna v. Plumer (U.S. 1965) (pg. 609): Whether service of process should be made as prescribed by
        the State (MA) or F.R.C.P. 4(d)(1)? Court reversed the lower courts by holding that the F.R.C.P. is the
        standard by which adequacy of service should be measured in a federal court.
            a. Substance vs. procedure
            b. Erie/York/Hanna test (applies with common law):
                    i. Policy of Erie rooted in:
                           1. Preventing unfairness/inequity of materially different results between state and
                              federal court
                           2. Preventing forum-shopping
                   ii. Look at outcome-determinative at the time of filing (defined by twin policies of Erie),
                       not when the dispute arises, because the choice between state and federal law will always
                       be outcome-determinative when the dispute arises.
            c. Erie doesn’t displace F.R.C.P., but guides the use of state procedure in the absence of
                F.R.C.P. on point.
           d. Inapplicability of an F.R.C.P. can only happen if the Court or Congress created a Rule, which
              transgresses the terms of the Enabling Act or the constitution.

 XI.    Walker v. Armco Steel Corp. (U.S. 1980) (pg. 618): In a diversity action, should Rule 3 of the F.R.C.P.
        apply to toll the statute of limitations? Court held that the scope of Rule 3 did not control in this case
        and as such the state statute of limitations should apply.
           a. Hanna DID NOT overrule Ragan, but distinguished it. Hanna analysis does not apply unless the
                F.R.C.P. is in “direct conflict” with the state law.
           b. Key question: is the scope of the F.R.C.P. sufficiently broad to control the issue before the
           c. F.R.C.P. should be given its “plain meaning” to determine if there is a conflict. Court says this
                does not mean F.R.C.P. should be construed narrowly (although it seems like the Court is doing
                that here to preserve Ragan). Who knows what “plain meaning” means here.
           d. Court must work hard to avoid a conflict. Usually has to be a strong countervailing reason to
                construe an FRCP narrowly.
                     i. Don’t want to overrule prior cases
                    ii. Language of the rule is at war with the legislative history (Advisory Comm. notes)
                             1. Raises serious questions whether Congress and the Court have the power to adopt
                                 this rule

XII.    Applying the Walker analysis to Hanna:
            a. Walker doesn’t make a lot of sense when you put it next to Conrail (Rule 3 meant filing the
                complaint tolled the statute of limitations (1987))
                      i. Conrail must be based on something else, like fed common law
            b. Court reached two different conclusions on Rule 3 under “plain reading” – Walker doesn’t seem
                be “plain reading”
            c. Walker said there was no conflict because Rule 3 isn’t broad enough to answer this question
XIII.   FRCP 4(e)(2)(B): “leaving a copy at the individual's dwelling” suffices for process but State law: serve
        process to the person
            a. Is there a direct conflict between these rules?
                      i. Seems yes.
                     ii. Argue no (under Walker): FRCP 4 has a list of types of service that isn't necessarily
                         exhaustive so state can impose its own
XIV.    Walker construed rule narrowly; Hanna construed rule broadly
            a. Most courts read rules broadly and Walker was the exception, but trend might be changing to
                narrower interpretations.
XV.     Hypo: federal practice (not FRCP/statute) prohibits parties from appealing jury instructions if they
        didn't object at the time; state rule says you don't have to object at the time and can appeal later; losing
        party did not object
            a. Won't affect forum-shopping - if she knows the difference in laws, then she'll object if she has to
                in that court
            b. Might create inequities - same P with different results
                      i. But everything is outcome-determinative
                     ii. "Incidental" consequences (Hanna) vs. "substantial" consequences
                    iii. Have to make arguments about how big the inequity is, how visible it was at filing, how
                         close it is to the merits, etc.
XVI.    Hypo: FRCP 51 says you can't appeal on the basis of incorrect jury instructions unless you object at the
            a. Must apply FRCP (or federal statute) UNLESS it's not arguably procedural - Sibbach/Hanna II
                    i. Sibbach applies when you're talking about FRCP/federal statutes
                   ii. Congress and courts can make federal laws; cannot make or change state substantive law
                           1. If court makes outcome determinative judicial common law, it is
                               making/changing state substantive law
                  iii. But FRCP are made by courts - seem kind of like judicial common law - maybe there
                       should be a stricter standard for them since not created by Congress, BUT that is not the
                       law (although Frankfurter dissent and scholarly article say it should be) - federal statutes
                       and FRCP are considered the same
                           1. Counter: Congress is delegating the power to make FRCP to "experts" just like
                               they do with agencies; Congress can veto them (tacit Congressional approval)
XVII.    Rule 3 Hypo - based on the chart, go with state law
            a. Could say commencement is different than stopping statute of limitations, but it's a stretch

 Which state’s law to apply? If there’s a good case on point, have to follow it for that state
    I.   Webber v. Sobba (8th Cir. 2003) (pg. 632) Webber got a minor girl drunk and was pawing her while she
         was trying to drive; ran car into tree. After nonsuiting in AK state court, Webber tried to get SJ on
         Sobba’s joint-enterprise defense under AK law in AK federal district court.
             a. Ark. S.Ct. hadn’t decided a case whether joint-enterprise defense could be asserted against
                 another member of the enterprise.
             b. St. trial court denied SJ; D.Ct. denied SJ. Ct. App. rejects the application of joint-enterprise
                 defense here (overrules lower courts).
             c. Looks to:
                      i. Prior case law:
                             1. Rone – court was silent on the issue; why else would evidence be admissible if
                                 defense was appropriate?
                             2. RLI and Southern – court found no joint enterprise existed, so didn’t discuss this
                                 issue; but if they found it didn’t exist, sounds like something that does exist in
                                 other cases
                             3. Majority of states follow the Restatement, so Ark. would probably also
                                     a. But Ark. departs from the Rest. Regularly
                             4. Ark. D.Ct. said it existed, and it’s at least from Ark.
                             5. Ct.App. couldn’t allow it for policy reasons; felt comfortable interpreting Ark.
                                 law this way
                                     a. Think the maj. rule, rejecting joint enterprise, is better, so they decide
                                         that’s the Ark. Rule, despite all of the above reasons – looks a lot like
                                         Swift – misuse of prediction power
             d. Buffetta (notes, pg. 636) suggests courts look to “relevant state precedents, analogous decisions,
                 considered dicta, scholarly works, and other reliable data…”
             e. Courts should follow state S.Ct. decisions, but they sometimes overrule when the precedent is
                 really old or there are policy reasons for doing so
   II.   Klaxon v. Stentor (1941) (pg. 637) Fed. court must apply whatever law would be applied by a court of
         the state in which the federal court is located
             a. Have to do the research to figure out what law the state court would apply
             b. If improper venue originally, law applied will be in first state with proper venue
  III.   Van Dusen v. Barrack (1964) (pg. 637) If there’s a change in venue, apply the law the original state’s
         courts would apply (if there had been no change of venue).
             a. Probably only applies to §1404 because §1406 is a substitute for outright dismissal.
  IV.    Certification statutes (instead of “Erie guess”)
             a. D.Ct. sends memo to S.Ct. and asks them to rule on the law
          b. Certification almost NEVER used in diversity cases; used in federal question cases when can’t
              decide the federal question without info about state law
          c. Time consuming – state S.Ct.s take their time and some don’t answer or give worthless answers;
              some turf war (fed courts say Erie gives them authority to interpret state law)
 V.     Hypo: TN fed district court decides P’s loss; 6th circuit affirms; U.S. S.Ct. affirms
          a. Now we have a TN state trial court: federal court’s determination of state law in diversity case is
              not binding on state courts
                   i. TN state court can do whatever it wants because only TN state S.Ct. decision is binding
                      on state court
                  ii. U.S. S.Ct. is only binding on federal courts – matters involving constitution, federal
                      common law, etc.
                 iii. If fed court makes a good Erie guess but state S.Ct. decides the opposite way while that
                      case is on appeal, D.Ct. must reverse in line with state S.Ct. decision

Choice of Law Problem (mention that diversity jx is proper; claim for $1 million meets the legal certainty
           a. Clearly substantive? No
           b. Is there a conflict with something? Yes, New Columbia Rule 3 conflicts with FRCP 11
           c. Is there a direct conflict? Is the scope of the rule broad enough to cover it?
                   i. No direct conflict; FRCP says nothing about bar # (Walker approach – read narrowly),
                 ii. P argues, Only R. 11 is required (exhaustive list – state rule that requires anything else is
                     in direct conflict) (Hanna approach – read the rule relatively broadly)
         d. Yes direct conflict  arguably procedural?  federal law applies
         e. No direct conflict  outcome-determinative? (Not going to affect forum shopping; would
             theoretically be unequal because would kick the case out of court, but that kicks every case out
             of court; there are always incidental inequities, but they’re not major) federal law applies
         f. Could mention Byrd, but don’t have to
   2. Clearly substantive, so state law applies
         a. What is New Columbia’s law and how do you find it?
                i.   Moron – contrib. negligence – no recovery – is it still good law?
                         1. Moron applies
                                 a. State S.Ct. has had chances to hear cases like this and has chosen not to
                                      decide them – hasn’t reversed lower court contributory negligence or
                                      lower court comparative negligence
                                 b. Overruling direct precedent looks too much like Swift and undermines
                                      Erie itself
                         2. Moron doesn’t apply (slightly stronger here)
                                 a. Webber (drunk driving case) and other Note cases; majority rule has
                                      changed; state S.Ct. would overrule Moron; some lower courts have
                                      changed without S.Ct. reversing them
                                 b. Different state interest – greater interest in holding cigarette mfrs liable
                                      than snowmobile mfrs
                                          I.      Different level of P’s negligence – cigarettes are addictive,
                                                  snowmobiles aren’t

                          3. Could also argue for fed ct. to certify the case to state S.Ct. but fed cts. rarely do
                              that for diversity cases (for Erie guesses); if S.Ct. has chosen not to answer other
                              case, why would it answer this one?
  3. Is the rule clearly substantive? No
          a. Does the conflict derive from FRCP or statute?
                 i.  FRCP 83 says local rules must be consistent with federal statutes, so FRCP 47 goes away
                ii.  Federal District Local Rule 47.1 – is it FRCP or statute?
                          1. FRCP – have force of Congress behind them either by their implied agreement
                              (silence) or enactment
                          2. D.Ct. promulgates local rules – no Congress, but have a statute that authorizes
                              FRCP that authorizes local rules and local rules have to be consistent with FRCP;
                              but no practical Congressional veto here
               iii. Why do we care? Legislation v. common law; Supreme Court (legislation) v. local
                     district courts (common law)
               iv.   If treated as a statute Yes, direct conflict arguably procedural
                v.   Not a statute outcome-determinative? (no inequities (not an advantage to either party);
                     yes forum shopping (lawyers think it might give them an advantage)
                          1. Can bring up countervailing federal interests for argument that you want federal
                          2. Byrd may or not be good law
                                   a. Our case is about juries, which is close to Byrd AND we’re not sure
                                      whether forum shopping and inequities matter in this case
                                   b. Realistic matter – this D.Ct. judge probably participated in the
                                      promulgation of the local rule and his power will be taken away – that
                                      judge will probably go for the rule that maintains his power
               vi.   Conflict between FRCP 47 and state custom?
                          1. Replay of Rule 11 question from #1

Part Two: From D’s Perspective
Rule 12 Motions
  I.     Rule 12(a)(1)
         a. D shall serve answer within 20 days after being served with summons and complaint, or if
             service has been waived by Rule 4(d), within 60 days after request for waiver sent
         b. Party must serve answer to counterclaim or crossclaim within 20 days after being served with the
             pleading that states the counterclaim or crossclaim
         c. Party must serve reply to answer within 20 days after being served with order to reply, unless
             order specifies different time
         d. 12(a)(2) and (3)– when you sue the U.S. or an individual on behalf of the U.S. …
         e. 12(a)(4) – if the court denies a motion or postpones it until trial, responsive pleading must be
             served within 10 days after notice of court’s action OR if court grants motion for more definite
             statement, responsive pleading must be served within 10 days after the statement is served.
  II.    Rule 12(b) Motions to Dismiss (Presenting Defenses – NOT Responsive pleadings) Every
         defense may be asserted in the responsive pleading or by motion:
         a. (1) lack of SMJ (can never be lost)
         b. (2) lack of personal jx
         c. (3) improper venue
         d. (4) insufficient process
         e. (5) insufficient service of process
      f. (6) failure to state a claim upon which relief can be granted (limited ability to raise later)
                i. Serves as exact counterpoint to Rule 8(a): if complaint satisfies 8(a), will likely survive a
                   12(b)(6) motion
               ii. Because 12(b)(6) is not a responsive pleading, under 15(a) if D hasn’t answered, P can
                   still amend the complaint without obtaining court’s leave.
              iii. Only defense that goes to merits of the case; others are procedural
              iv. Court cannot reach beyond complaint for evidence to resolve factual disputes. Can ignore
                   complaint’s bald assertions and legal conclusions, but must accept as true all facts
                   stated in the complaint and must draw all reasonable factual inferences in favor of
               v. If the court considers matters beyond pleadings, must be treated as matter for SJ under
                   Rule 56, which cannot be granted until after opposing party has had discovery.
      g. (7) failure to join party under Rule 19 (limited ability to raise later)
      h. Motion asserting any of the above must be made before pleading if a responsive pleading is
          allowed. If a responsive pleading is not required, opposing party may assert at trial any defense
          to that claim. No defense or objection is waived by joining it with other defenses in a responsive
          pleading or motion.
III.  Rule 12(c) Motion for Judgment on the Pleadings
      a. After pleadings are closed but early enough not to delay trial, party may move for judgment on
          the pleadings.
      b. For Ps, equivalent to a delayed 12(b)(6) motion
      c. Can use 12(c) motion as vehicle for raising certain 12(b) defenses that might have been but
          weren’t raised earlier
IV.   Rule 12(d) Matters Outside the Pleadings
      a. If on a motion under 12(b)(6) or 12(c) matters outside pleadings are presented and allowed by
          court, motion must be treated as on for SJ under Rule 56. All parties must be given reasonable
          opportunity to present material that is pertinent.
V.    Rule 12(e) More Definite Statement (rare): Party can move for more definite statement of a
      pleading if it’s so ambiguous that party can’t possibly prepare response.
VI.   Rule 12(f) Motion to Strike (rare): Court can sua sponte strike from pleading an insufficient
      defense or any scandalous, etc. matter or can strike upon motion by party.
VII. Rule 12(g) Joining Motions
      a. Can join motions.
      b. A party that makes a motion can’t make another motion raising a defense or objection that was
          available to the party but omitted from its earlier motion. Omission = waiver.
VIII. Rule 12(h) Waiving and Preserving Defenses
      a. Waive a ground if you don't do anything (like make a motion or raise a ground in answer) OR if
          you omit defense from prior motion
      b. WAIVED:
                i. 12(b)(2) – personal jx
               ii. 12(b)(3) – venue
              iii. 12(b)(4) – process
              iv. 12(b)(5) – service
      c. NOT WAIVED (can be raised in any pleading, by motion at trial under 12(c), or at trial):
                i. 12(b)(1) – SMJ – unconstitutional for court to hear case without SMJ
               ii. 12(b)(6) – failure to state a claim upon which relief can be granted
              iii. 12(b)(7) – failure to join a party
      d. Hypos

                i. Complaint - $30,000; D makes 12(b)(1) motion; Amended complaint >75,000; Court
                   denies motion; D submits answer - can D assert 12(b)(2) defense? NO. 12(h)(1)(a) -
                   made motion, but omitted this ground
               ii. Inadequate complaint; D files answer and makes 12(b)(2) motion; motion denied -
                   because of 12(h)(1)(B)
  IX.   Rule 12 Worksheet: KY accident; TN husband and wife vs. KY D; husband injured, wife maybe
        a. In TN fed ct. for $30K
                i. D files: 12(b)(2) (accident not in TN); 12(b)(3) (wrong venue); 12(b)(1) (no SMJ) after
                   being served with complaint and before filing answer (or could file with answer); within
                   20 days (or 60 if service waived); don’t have to answer while court is considering
                   motions; if court denies motion, must answer within 10 days
        b. In KY fed ct. for $100K; wife alleges IIED (KY law only allows IIED with physical injury)
                i. D files 12(b)(6) motion because no allegation of physical injury; will be granted because
                   she wouldn’t win if she went to trial and proved everything she alleged
               ii. Could Ct. infer physical injury (drawing all reasonable factual inferences in favor or P)?
                        1. Yes – filed under law including physical harm
                        2. No – could have alleged physical injury, but didn’t – exclusio unius
        c. Same as above but wife was actually injured, just didn’t allege it
                i. P should amend complaint – deficient because of technicality/mistake, not because she
                   wasn’t actually injured
        d. Complaint alleges wife’s injuries, but D saw her playing tennis
                i. D files motion with affidavit under 12(b)(6) – converts to SJ under 12(d)
               ii. Quicker to just file SJ
        e. Same as (b), but complaint alleges KY law allows IIED without physical injury
                i. Court has to take factual allegations, not legal allegations, as true
               ii. D files 12(b)(6)
        f. Same as (b) but complaint alleges that wife can’t sleep since accident
                i. Is this a reasonable inference that she’s physically injured?
        g. Same as (b) but complaint has two counts: 1) Husband sues for physical injury damages; Wife
           sues for IIED with no physical injury
                i. D files 12(b)(6) on count 2; can dismiss 1 or more counts or whole complaint

Answer (Rule 8)
  I.    8(b): Defenses; Admissions and Denials
        a. 3 Options for D upon receiving complaint: State in plain terms defenses to each claim, AND
                 i. Admit
                ii. Deny
               iii. Disclaimer (8(b)(5) - insufficient knowledge or information) – counts as denial
                        1. If you do something other than above, case can get thrown out, or will admit to
                            allegations (like King Vision - Judge Shadur can be rough)
                        2. The fact that you have to admit, deny, or disclaim doesn't mean that you can't put
                            anything else in your answer, but you have to put in the rule-based stuff for sure;
                            be careful about putting ideas into judge’s head
        b. Denials/Insufficient info rules
                 i. If you deny part of an allegation, must state which parts are true and deny the rest
                        1. If you deny an entire paragraph and part of it is true, you are not responding to the
                            substance (8(b)(4)) and the entire allegation will be deemed admitted in court

                         2. Court will tell jury the facts in the allegation are true and D will have no chance to
                             claim they are not - deemed admitted
                ii. Can’t claim insufficient knowledge if you should reasonably know or be able to find out
               iii. General denial only used if you can deny every allegation
       c. Risks of General Denial
                 i. Sanctions: if P can prove D didn’t make reasonable inquiry and could have admitted
                ii. General denial with specific admittance is taken as admittance
       d. Failure to deny: Any allegation, not related to amount of damages, is admitted if responsive
            pleading is required and allegation isn’t denied. If responsive pleading not required, allegation is
            considered denied or avoided.
II.    8(c): Affirmative Defenses: Defendant doesn't deny the allegations (even if all facts are true) but
       still has a reason for winning
       a. Examples on pg. 52 of Rules; not exclusive list. Includes preclusion.
       b. In responding to pleading, party must affirmatively state any avoidance or affirmative defense to
            give sufficient notice; if not included can be considered waived
       c. N.B. Notice only important if P would have been able to use notice to overcome the defense;
            may be possible to amend the answer to save affirmative defense. (Carter)
       d. If party mistakenly labels a defense as a CC or vice versa, court shall treat pleading as if it had
            been properly designated (pleading not a game of skill…)
III.   8(d): Directness/Alternative Statements
       a. Each allegation must be simple, concise, and direct. No technical form required.
       b. Party may set out multiple claims or defenses alternatively or hypothetically. Pleading is
            sufficient if any one of them is sufficient.
       c. Party may state as many claims or defenses it has, regardless of consistency.
IV.    King Vision Pay Per View, Ltd. v. J.C. Dimitri's Restaurant, Inc. (N.D. Ill. 1998) (pg. 71) Court
       was pissed about D's apparent response to complaint. Fully 30 of Response's 35 paragraphs contain a
       non-response in direct violation of 8(b)(6)'s teaching: Neither admit nor deny the allegations of said
       Paragraph __, but demand strict proof thereof.
       a. Holding: All allegations not denied will be counted as admitted and the case will proceed on that
            basis. 8(b) is not hard to follow - a plain roadmap. Only three alternatives available in an answer:
            to admit, deny, or state a disclaimer. The 30 statements directly violate 8(b); you cannot
            "demand" "strict proof."
V.     Carter v. United States (7th Cir. 2003) (pg. 75) Carter sued Bethesda Naval Hospital for medical
       malpractice. D.Ct. found for P in the amount of $3.4 million (economic damages) and $15.5 million
       (noneconomic damages). Under Maryland law, maximum amount of noneconomic damages is
       $530,000 so damages were reduced. P appealed because the government failed to assert the damage
       cap in its answer. Ct. affirmed.
       a. Holding: Government's failure to assert damage cap in its answer does not allow for forfeiture.
            Government argued that limitation on damages is not an affirmative defense and therefore does
            not need to be pleaded in the answer, according to 8(c). The failure to plead an affirmative
            defense in the answer works for forfeiture only if P is harmed by D's delay in asserting it,
            and there was no harm here.
       b. Importance: What kind of harm could it cause? If P knew there was a damage cap, P might
            switch around the kinds of damages she was asking for. Would P have acted differently if she
            had known about the damage cap?
VI.    Answer Worksheet
       a. Can’t plead insufficient info just because you don’t know off the top of your head; can ask for
            extension if it takes a while to find the information
          b. Admit basic facts unless they’re wrong
          c. If your client tells you he did the things the complaint alleges:
                   i. Can’t deny (lying)
                  ii. Don’t admit (you lose)
                 iii. Look for affirmative defense
                 iv. File 12(b) motion
                  v. Try to settle
                 vi. Talk to client and probe his answer – if he sticks with his answer, tell him to settle; you
                      can’t lie for him and there’s no available defense
          d. If you have doubts about what your client has said, can always do further inquiry. If you can’t
             find any objective evidence to prove him wrong, it’s the jury’s job to determine his liability. You
             have to continue to defend your client. Consider settling (cost-benefit analysis). Go through
             discovery and determine other side’s case. Ultimately can withdraw counsel.

Dispositive Motions (FRCP 56, 50, 59 – allow judges to decide facts)
   I. Roles of judge and jury
           a. Why have juries at all? Why not let judge decide law and fact?
                    i. Markman suggests that juries are representative of the community
                   ii. Allows law to bend in individual cases and subtly
                  iii. Takes blame/accountability off the government; community accountability/autonomy
                  iv. Checks the power of judges; we don't trust them (strongest reason when framers wrote
                        7th amendment)
           b. So why do we have judges?
                    i.     Specialized knowledge
                   ii.     Uniform rulemaking (sometimes want law not to bend)
                  iii. Check the power of the juries (don't trust them either)
                  iv.      Classically American - we separate the power because we don't trust any one body with
                           it - this is how we think about government
   II. Markman v. Westview Instruments, Inc. (U.S. 1996) (pg. 242) shows that whether something has to go
       to the jury is still being litigated; S.Ct. decides a case on this every few years
           a. Sometimes it's hard to tell the difference between the facts and the law
           b. Patent infringement cases do have to go to juries
           c. A patent claim describes the legal boundaries of the invention - what's inside and outside the
               patent (in this case, the invention tracked inventory)
           d. Why does the claim not have to be decided by the jury?
                    i.     If the issue is necessary to preserve the substance/deciding this issue is essential to
                           preserve the jury right
                   ii.     If the above doesn't apply, then jury doesn't have to decide. How does the court decide
                           the above?
                              1. History: as of 1791, this issue would be tried by a jury; draw an analogy if no
                                  cases exist
                                       a. Ex. Does securities fraud have to be tried by a jury? Could make an
                                          analogy to fraud back in the day, but could also argue the opposite way
                                       b. Problem with the historical test - hard to say what the historical analog is
                                       c. Has this court ever decided a case like this before? Will take a long time
                                          before SC decides on each issue in every kind of case that must be tried by
                                          a jury
                              2. Relative expertise/ability of judge and jury
                                       a. Judges construct documents all the time
                                    b. Judges have more experience listening to experts testify about various
                                        different complex topics
                                    c. Court makes argument about juries being better at determining issues
                                        about the credibility of experts
                                    d. Court doesn't tell us where to draw the line - steep slippery slope - test
                                        doesn't really tell us anything - have to see how each court decides each
                                        particular issue
                           3. Need for uniformity
                                    a. Reason we have Court of Appeals for the Federal Circuit
                                    b. If uniformity is particularly important for this kind of case, why isn't it for
                                        EVERY kind of case?
                                             i. Maybe problems with the jury system - maybe they're not
                                                competent to decide some things, maybe we shouldn't put certain
                                                decisions in their hands
                           4. "Of one's peers" is part of the definition of "jury," even though not stated in 7th
                                    a. SC's test was vague and bad, so they keep having to decide cases about
                                        which issues juries can decide
                                    b. This case only tells us that patent claims don't have to be decided by the
                                        jury; or maybe that similar case issues don't have to be heard by jury
                  iii.   Markman hearings - judge in patent case has to decide what the scope of the claim is
                         before it ever goes to trial; sometimes, when there's nothing further in dispute, doesn't
                         even have to go to trial
                  iv.    These cases come up only every 5-10 years when judge wants to take away something
                         that is the jury's decision

Rule 56: Motion for Summary Judgment (SJ granted more often than JMOL; Standard of review: de
  I.  Comparison of Standards for Granting 50, 56, 12(b)(6), and 59 – Standards for 56 and 50 are the
      same and related to 12(b)(6)
         a. Rule 56 (SJ): No genuine issue of material fact/no reasonable jury would find for the non-
              moving party
                  i. Must be material fact – irrelevant facts have no bearing
         b. Rule 50 (Judgment as Matter of Law): No genuine issue of material fact/no reasonable jury
              would find for non-moving party
         c. 12(b)(6): P has no plausible case
         d. Rule 59: Judge must grant new trial if he thinks the verdict is against the clear weight of
              evidence or is based upon evidence which is false, or will result in miscarriage of justice, even
              though there may be substantial evidence which would prevent direction of the verdict
 II.  56(a) and (b): Can move without or without supporting affidavits
III.  56(c): Must be moved before trial. Must show there is no genuine issue as to any material fact
IV.   56(d): Court can dismiss only part of the action.
 V.   56(e): see Celotex
VI.   56(f): Court can deny motion if not enough evidence
                                Rule 56 - SJ                            Rule 50(a)
Timing                          Before evidence presented at trial      Close of evidence
                                (generally after at least some
  Evidentiary Basis               -Trial evidence                         -Discovery, affidavits, pleadings
                                  -Make all inferences favoring the       -Look at all evidence
                                  non-moving party
  Standard (Granted if…) -        No genuine issue of material fact or    No genuine issue of material fact or no
  used for 50(a) and (b) and 56   no reasonable jury could find for the   reasonable jury could find for the non-moving
                                  non-moving party                        party
VII.    Evidence
            a. Moving party has burden of producing evidence in favor of his motion, usually by:
                      i. Affidavits – made by personal knowledge, with evidence “reducible to admissible
                         evidence at trial”
                             1. “Sham affidavit” – party has submitted an affidavit that contradicts sworn
                                  deposition testimony; SJ granted unless the deposition/affidavit can be explained
                     ii. Discovery
            b. If statute of limitations has run (matter of law) SJ granted because no issue of material fact exists
                because matter of law trumps it
VIII.   Celotex Corp. v. Catrett (U.S. 1986) (pg. 258) P sued alleging her husband had died from asbestosis
        from working for D. D moved for SJ – granted. In his motion, D didn’t produce anything supporting its
        proposition; simply pointed out that P had no evidence supporting its claim against D.
            a. Affidavits don't have to be admissible at trial (or else witness would never agree to testify)
            b. Must set out facts admissible at trial (Celotex docs were inadmissible because of hearsay), BUT
                the form in which they are presented doesn't have to be admissible (has to be reducible to
                admissible evidence, for example, by affiant testifying at trial) (56(e))
            c. Movant need not produce evidentiary materials if non-movant will have burden of proof at trial –
                P would have to prove at trial that D’s products injured him, so burden of refuting D’s assertion
                in MSJ shifted to P
            d. Non-moving party must go beyond the pleadings to show specific facts showing genuine issue
                for trial (56(e))
            e. Before the Celotex trilogy (before 1980s), federal courts might not have granted SJ when there is
                still a scintilla of evidence on the non-moving party's side, but now federal courts grant it
            f. Hypo: if D requested something during discovery that wasn’t produced, suggests that it doesn’t
                exist; as in Celotex, if one party can prove/suggest that the other party has on evidence to support
                denial of SJ, then SJ can be granted without the moving party producing anything; if there is an
                explanation for the lack of evidence, SJ can’t be granted
 IX.    Matsushita (1986) (pg. 263) Involved alleged conspiracy that was not objectively reasonable; no
        rational economic actor would have acted in the market the way Ds did for as long as they allegedly did.
        In the absence of direct evidence of monopolistic conspiracy and lack of rational economic motives for
        Ds to behave the way they did, Ct. held SJ was appropriate.
  X.    Anderson (1986) (pg. 263) Libel case in which D had to prove his 1st Amendment case by clear and
        convincing evidence; court held this standard should be factored in SJ test. Merely colorable or not
        significantly probative evidence is not enough to withstand SJ. Although SJ used to be denied when
        there was a scintilla of evidence, now there must be some evidence upon which a jury could find for the
        party producing it.
 XI.    Scott v. Harris (U.S. 2007) (pg. 266) High-speed police chase ended in police officer ramming P’s car
        from behind. P sued. S.Ct. granted SJ
            a. At SJ stage, facts must be viewed in light most favorable to non-moving party ONLY if there is a
                genuine dispute as to those facts, and when the whole record could not allow a rational factfinder
                to find for the non-moving party, there is no genuine issue for trial

           b. Court shouldn’t accept blatantly contradicted [by video] facts just because they favor the non-
              moving party
           c. But the fact that the class and the court were split suggests that a reasonable jury could find that
              P was not endangering lives suggest SJ might have been improper
           d. This case involved a cop, and they’re pretty protected
           e. When there are some facts that might support the non-moving party, might want to consider if
              the conflict is material; if the evidence is admissible; if the conflict involve inferences to be
              drawn from undisputed admissible evidence
                   i. Hornbook law says inferences must be drawn by jury; if there are inferences to draw, SJ
                      is inappropriate
           f. Court can grant SJ sua sponte (either Rule 56 or 16(c)(2)(A))

Rule 50: Judgment as Matter of Law (governed by same standard as SJ – motion should be granted if no
reasonable jury could find for the non-moving party; granted less often than SJ; less predictable; standard of
review: de novo)
   I.  Rule 50(a): Directed verdict - after trial as begun and evidence presented (fully heard on the issue),
       before it goes to jury; judge issues verdict for one party and jury is dismissed; then can appeal
           a. Motion must be made before case is submitted to jury and must allege desired judgment and the
               facts supporting it
  II.  Rule 50(b): JNOV (judgment not withstanding the verdict) - after jury has reached verdict; judge can
       overrule jury; then can appeal; granted slightly more often than 50(a)
           a. Party must have made Rule 50(a) motion before the case went to jury; if judge denied the
               motion, party can renew it no later than 10 days after entry of judgment; may also include a
               request for new trial under Rule 59
                    i. Whatever the 50(a) motion was based on might be fixable during the trial - can't fix it if
                       you only bring it up after trial
                   ii. If party makes 50(a) motion and court doesn't rule on it, when the party makes the 50(b)
                       after trial and the judge grants the motion, counts as essentially granting the first motion
                       which means the judge isn't reexamining/overstepping the jury's verdict
                            1. VERY strictly construed
                  iii. 50(b) must be on the same ground as the 50(a) motion - can't move on hearsay during
                       trial if you didn't move on it originally
           b. If court grants 50(b) motion, must conditionally rule on any 59 motion if the judgment is later
               vacated or reversed
           c. Must file 59 motion not later than 10 days after entry of judgment
           d. 50(b) allows judge to overturn the jury's verdict because:
                    i. Judge often hopes jury will agree that no reasonable jury would find for the non-moving
                       party; 9 times out of 10, jury agrees with judge; but that one time, judge can overturn
                       their verdict
                   ii. If judge grants 50(a) motion too soon, will have to hold whole new trial if his judgment is
                       overturned; if judge holds off, higher court can reinstate the jury verdict instead of
                       holding new trial
 III.  Reeves v. Sanderson Plumbing Products, Inc. (U.S. 2000) (pg. 273) Whether D entitled to JMOL when
       P’s case consists of prima facie discrimination and sufficient evidence for factfinder to disbelieve D’s
       legitimate, nondiscriminatory explanation for its action. JMOL shouldn’t have been granted because jury
       could find either way.
           a. Court has to look at all evidence, not just evidence favorable to non-moving party - all
               inferences should be drawn in favor of non-moving party
                    i. Judge can't make credibility determination
           b. Scintilla rule no longer in effect; might be some shred of evidence for non-moving party but
               still grant the motion because no reasonable jury could find for the non-moving party
           c. D. Ct. used McDonnell Douglas (like in Swierkiewicz) – Ct. App. gets confused about this
                     i. Basic question of discrimination case is: was P fired because of discrimination?
                    ii. S.Ct. says P just has to show enough evidence that a reasonable jury could conclude that
                        he was fired because of his age
                   iii. Sufficient evidence to show discrimination could have occurred, in addition to prima
                        facie case
                            1. P shows: comments from boss showing bias; employer's reason unlikely to be true
                                (kept adequate attendance records)
           d. If P had moved for JMOL, should have been denied because a reasonable jury could have found
               for P or D - would be their assessment of the facts that decided the case
IV.    Unitherm Food Stystems, Inc. v. Swift-Eckrich, Inc. (U.S. 2006) (pg. 287)
           a. Can't rest on the 50(a) motion; If it's denied and you want to be able to appeal on the sufficiency
               of the evidence (jury just got it wrong), you have to file a 50(b) or a 59 motion or judge can't
               give you anything
 V.    General thoughts on JMOL:
           a. Hard case: no JMOL should be granted, so goes to jury – Why do we take the easy cases away
               from jury and give them the hard ones?
                     i. Might be deciding on credibility issues (whose version of the facts is true)
                    ii. Common sense
                   iii. Values
                   iv. Weighing/balancing
                    v. NOT decided on reason, because a reasonable jury could go either way
           b. Easy case: JMOL should be granted when no reasonable jury could find for the non-moving
                     i. Where judge believes jury misapplied the law because of its values (employer was just a
                        jerk; or employee was sympathetic and deserves some money)
VI.    Rule 59: Motion for a New Trial (can’t appeal until after 2nd trial is held; standard of review: abuse
       of discretion)
           a. 59(a): Court may grant motion on all or some of the issues if the jury verdict is against the clear
               weight of evidence – very broad discretion for judge
                     i. Judge is passing the case on to another jury
                    ii. Rarely used except on damages
           b. 59(d): Court may order new trial sua sponte for any reason that would justify granting one on a
               party’s motion
           c. In some circuits, you can't make a 59 motion unless you have already made the 50(a) - Rule 59
               doesn't say anything about having to make 50(a), but some circuits disregard that
                     i. Because of Unitherm, more circuits will probably say that you need 50(a) in order to go
                        for 59 later
                    ii. If you don't challenge the weight of the evidence before it goes to the jury, you can't
                        challenge it after the jury has decided
           d. You almost always make both 50(b) and 59 motions because you only have 10 days - if one gets
               denied, you might get the other
           e. Can't go back and appeal the 50(a) motion
VII.   Final Order Rule - can't appeal until judge has issued final order
           a. Can appeal the grant of SJ, but not the denial of SJ
           b. If you lose and judge previously denied SJ, you can appeal the earlier denial
           c. Can appeal grant of directed verdict (50(a)), but can't appeal denial of 50(a) motion ever
             d. Unitherm - can never appeal the earlier denial of a 50(a) motion
                     i. If you lose and you make a 50(b) or a new trial motion and that's denied, you appeal
                    ii. 50(a) is basically moot
                   iii. If you don't make a 50(b) or new trial motion, you can't appeal
                   iv. Either side can appeal 50(b), depending on whether they lost or won
                    v. New trial denied, can appeal because that's the end of the case otherwise; if you lose in
                        new trial, can appeal granting of new trial way back when
VIII.     Standards of review:
             a. SJ, 50(a) and (b) - de novo - whether court of appeals thinks no reasonable jury could find for the
                non-moving party; no deference to district court
             b. 59 - abuse of discretion

 Discovery and Case Management
                     Depositions              Interrogatories    Documents     Physical Exams            Admissions
 Rules:              27,28,30,32,45           33                 34, 45        35                        36
 Against whom?       Anyone                   Party (not just    Anyone        Party, or in custody or   Party
                                              someone with                     control of party
 Prerequisites       1. Notice                relevant           Party: none   1. Good cause             None
                     2. Subpoena for non-     knowledge)         Others:       2.Court order
                     parties if needed                           subpoena      3. “In controversy”
                     3. Court order in ltd    None
 Use at trial        Limited:                 Fully admissible   Fully         Fully admissible          Conclusive
                     1. Impeachment           *Except your       admissible
                     2. Unavailable           own
                     3. Against adverse       *Party can
                     party                    supplement
                     4. Exceptional           partial use
 Challenges          Limited objections:      Can object and     Can object    Dispute motion            Can object and
                     1. Note any for later    not answer                                                 not answer
                     2. Privilege; court
                     3. Terminate for
 Limits              10 total (oral and       25                 None          None                      None
                     written); each oral is
                     one day, 7 hrs.

   I.     Purpose of Discovery
             a. Efficiency: Narrows disputes; frames issues
             b. Encourages settlement: see Rule 26(f)
             c. Fairness: Prevents one party from surprising the other party at trial
             d. Encourages notice pleading standard: instead of disclosing bulk of information at pleading
                stage, parties accomplish through discovery
  II.     Types of Discovery
             a. Depositions (oral)
                     i. Flexible - like cross examining in court, can change course of questioning
                    ii. Expensive - multiple lawyers, travel costs, court reporters
      iii. Advance preparation - what do you want to get from the witness and how are you going
           to get it?; have to be prepared for deposition to go in various directions
      iv. Lots of information, limited use
               1. Limited objections – Rule 30(c)(2)
                        a. Can only tell witness not to answer if 1) the information is privileged, 2)
                            court has limited the scope by an order, or 3) lawyer wants to move court
                            to terminate the deposition
               2. Not generally admissible in court (because you'd never have live witnesses if you
                    always allowed them) – Rule 32
                        a. Can always use a party's deposition testimony against that party
                        b. Can use for witness impeachment
                        c. Can use if the witness is unavailable
       v. Process:
               1. Like witness examination and cross-examination (preparation)
               2. Tell witness to tell the truth, but don't volunteer information
               3. If you don’t know the answer, don't speculate; say you don't know
               4. If you don't understand the question, don't interpret; say you don't understand
               5. Rule 30(b)(6): designation - corporation/association is required to designate
                    someone to be deposed; have to send deposition notice to corporation describing
                    the subject matter of the deposition, the information you want
               6. Rule 30(g): No-shows
                        a. If you're deposing a party, the party has to appear (no subpoena
                            necessary); if they don't show, you can impose sanctions on them
                        b. If you're deposing a non-party and you don't subpoena the person and they
                            don't show, but other parties show up, you have to pay costs of other
                            people who did appear
                        c. If you subpoenaed the witness and s/he doesn't show, you don't have to
                        d. Don't subpoena every witness; don't want to freak out friendly witnesses
                            who will show anyway
b. Written depositions
        i. Intermediate (between the depositions and interrogatories)
       ii. Like interrogatories to non-parties; not worth the travel time to do live depositions
c. Interrogatories
        i. Cheap - firm probably already has model set; doesn't take a lot of time or money
       ii. Very unfocused, broad tool; don't really know what you're looking for; fishing tool
      iii. Inflexible; if the answer isn't what you expect, you have to send another round of
               1. Generally both parties will agree that both can send more than 25 interrogatories
                    (each counts as a question, not the packet of questions)
      iv. Less information, but more use
               1. Can object and not answer… and then get no information
               2. Then requestor has to go to court (opposite of depositions)
       v. How to proceed:
               1. Objective questions are better than subjective; simple questions are better than
                        a. Name each person who has knowledge of claims or defenses and give
                            address if known

                               b. Ex. Ask what chemicals were sold, how much was sold, how much was
                                   used; ask how the extra was disposed of
                               c. Ask for facts from which you can construct liability
                               d. Names, dates, documents, and data
                       2. Don't expect admissions of liability
         d. Admissions
                 i. Underused
                ii. Narrow but useful
               iii. Authenticate documents, foundation for calling witnesses
               iv. Get other party to admit certain claims (like firing somebody) but not liability
         e. Documents (see below)
                 i. Proceed from specific to general
                       1. Too general and you'll get a warehouse of docs; too specific and you won't get
                       2. Documents sent to or from or refer to specific people; departments;
                       3. All docs relating to D's claim and defenses
                ii. Define "documents" broadly - include recordings, electronically stored info, etc.
               iii. Electronically Stored Information (ESI) - Poses special problems
                       1. Objections to form of ESI - 34(b)(2)(D)
                       2. Production - 26(b)(2)(B)
                               a. If not easily accessible, the party does not have to produce it
                               b. Burden is on requestor to show it's not unduly burdensome
                       3. Form - as it's kept in normal business, as requested, or in any useable form -
                       4. Metadata
                               a. Sender's responsibility - has to be cognizant and take reasonable care to
                                   prevent the inadvertent disclosure of privileged info through metadata
                               b. Recipient's responsibility - rules still in flux - 26(b)(5)(B) - applies to all
                                   docs - NOT unique to ESI, if responder inadvertently discloses privileged
                                   information, s/he can notify recipient and ask for it back; recipient can't
                                   use or distribute the material until the issue of privilege has been decided
                               c. Some jxs say recipient is permitted to mine for metadata unless the
                                   recipient knows the disclosure was inadvertent; some jxs say you can't
                                   mine for it, but if you find it, it's ok; some say you can't use it at all unless
                                   you know that privilege has been waived; some jxs distinguish between
                                   docs sent voluntarily vs. in response to discovery request
III.   Common Pattern
         a. 26(a)(1) Required (Mandatory) Disclosures
                 i. Must be disclosed, even if other party doesn't ask for them:
                       1. Name and contact info of people with discoverable info
                       2. Documents and tangible things party plans to use
                       3. Basis for damages
                       4. Insurance info
         b. Rule 26(f) Conference
                 i. Meet to consider nature and basis of claims and defenses
                ii. Discuss settlement
               iii. Arrange mandatory pre-discovery disclosures
               iv. Default rule – parties can stipulate beginning discovery before conference
                 v. Rule 29 allows parties to alter rules
         c. After mandatory time period, parties start supplementing by sending interrogatories and
            document requests to each other
                  i. Always ask for ALL of the documents consulted and referred to when answering the
                 ii. After looking at the above, you formulate your discovery plan; focus your efforts
         d. Oral depositions
         e. More document requests, non-party discovery
         f. 26(d)(2)(A) - no particular order in which discovery must occur - parties can decide which
            devices to use
         g. Responding to discovery requests
                  i. Object whenever you have a colorable claim that something is not, in fact, discoverable
                 ii. Interpret narrowly
                iii. Answer narrowly - honest, but not forthcoming
                iv. Use lots of paper
         h. Real world discovery
                  i. Rule 26 is one of the most amended rules
                 ii. Lawyers over request and under respond; some use discovery for fishing expeditions
                iii. Many instruct witness not to answer even though the rule says you can't do that
                iv. The party that dislikes the conduct has to take it to court
                         1. Lawyers can get away with abuse of discovery if it doesn't get reported; but you
                             can get a bad reputation for yourself
                 v. "Tit for tat" - play nice until the other side does something bad; then you do the same
                     thing back to the same degree; don't escalate, just respond
                vi. Adversarial system - lawyers battle it out; discovery - you have to give your adversary
                     information - tension between these two sides
               vii. Most lawyers say you can't win a case on discovery, but you can lose it – high stakes
IV.   Disputes (two ways to deal)
         a. Motion for protective order - 26(c)(1)
         b. Motion to compel - 37(a)
                  i. Same standards apply for both - should discovery be compelled vs. should it be restricted
         c. Process:
                  i. When responder thinks the request for discovery is unduly burdensome:
                         1. Object and don't answer; requester must confer with responder and try to resolve;
                             then raise 37(a) motion or confer to resolve, then make 26(c) motion for
                             protective order
                         2. The requirement that the parties confer stems from the notion that discovery is
                             between the parties and should generally not involve the court
         d. How does the court determine whether to grant a 26(c) or 37(a) motion?
                  i. Unprivileged
                 ii. Relevant (to claims/defenses) - 26(b)(1) - or relevant to subject matter with the showing
                     of good cause, AND
                iii. Proportionate (not unduly burdensome) - 26(b)(2)(c)
                         1. Basically a cost-benefit analysis - cost/burden of discovery can't outweigh the
                         2. More battles fought over proportionality
                         3. Producer always pays for discovery, unless court shifts costs - if monetary cost is
                             unduly burdensome, can shift costs so richer party pays for some of it
         e. Scope of Discovery
                 i. 26(b)(1)
                        1. “Parties may obtain discovery regarding any matter, not privileged, relevant to
                            any party’s claim or defense”
                        2. “Court may order discovery of any matter relevant to subject matter involved in
                            the action.
                        3. Relevant information need not be admissible at trial if discovery appears
                            reasonably calculated to lead to discovery of admissible evidence
                ii. 26(b)(2)(B): Party need not provide discovery of ESI from source the party identifies as
                    not reasonably accessible because of undue burden or cost. Party from whom discovery is
                    sought has burden to show the information is not reasonably accessible. Court may still
                    compel discovery.
               iii. 26(b)(2)(C): On motion or sua sponte, court must limit extent of discovery if:
                        1. Discovery sought is unreasonably duplicative, or can be obtained from some other
                            source that is more convenient, less burdensome, or less expensive
                        2. Party seeking discovery has had ample opportunity to obtain the info
                        3. The burden or expense of the proposed discovery outweighs its likely benefits,
                            considering needs of the case, amount in controversy, parties’ resources,
                            importance of issues at stake in the action, and importance of discovery in
                            resolving those issues.
                                a. Boils down to privileged; relevant to claims/defenses; proportionate.
               iv. 26(c): Court may issue order of protection to protect party from annoyance,
                    embarrassment, oppression, undue burden/expense.
V.   Sanyo Laser Products, Inc. v. Arista Records, Inc. (S.D. Ind. 2003) (pg. 120) Record co.’s motion to
     compel is granted; Sanyo’s order of protection is denied. About relevance and proportionality.
        a. Holding: Info requested relates to claims/defenses; not cumulative/duplicative, and not
           burdensome. Even if not relevant to claims/defenses, still relevant to subject matter at hand, so
           under 26(b)(2), good cause has been shown to grant broader discovery. No doubt about whether
           it meets relevance/proportionality standards.
                 i. Movant for order of protection must show good cause that disclosure will cause clearly
                    defined and serious injury.
        b. Importance: issues or relevance sometimes answered or superseded by proportionality
           requirement of 26(b)(2)(C).
        c. Hypos
                 i. Bill Clinton and Paula Jones - what does Clinton want from her?
                        1. Evidence of relationship (easy)
                        2. Who did she tell and supporting documents (easy)
                        3. Sexual history (more difficult)
                                a. Affects likelihood of truth of allegations/defenses
                                b. Interpret relevance in light of the presumption of broad liberal discovery
                                    (Sanyo and Aubuchon) - almost certainly relevant
                                c. Is it proportionate?
                                          i. Monetary cost (wouldn't cost her much at all) - favors D
                                         ii. Emotional distress - favors P
                                        iii. Privacy of others - favors P
                                        iv. Central to resolution of the case (he said/she said)? - favors D
                                         v. Importance of issues at stake? President’s reputation is important –
                                             favors D
                                        vi. Discourages other women from bringing harassment cases – favors
                                         vii. Deters frivolous suits – favors D
                                  d. Might ask for a protective order saying that the information can't be made
                                      public - impose a condition - protective orders can be used for many
                                      purposes, not just to prevent discovery
                                  e. Ask court to examine it "in camera" - information given directly to the
                                      court; judge decides whether it's privileged/relevant/etc.
                  ii. Instead of asking for her sexual history, he wants her video rental history
                          1. Probably not relevant to claims/defenses; debatable if it's relevant to subject
                              matter; No judge would issue an order for this because it's going too far
VI.   W.E. Aubuchon Co. v. Benefirst, LLC (D. Mass. 2007) (pg. 127) About 26(b)(2)(c) limits on discovery
      (must be proportionate). Aubuchon wanted Benefirst to produce claims files, but Benefirst claimed it
      would be costly and arduous to retrieve said claims. Whether ESI is reasonably accessible under Rule
      26(b)(2) and if not, whether it should still be produced. Court ruled that good cause was shown, so
      Benefirst must produce the info at its own expense.
         a. Court starts at 26(b)(2)(B) because it deals with ESI. Is it reasonably accessible? (special
             limitation on ESI)
                   i. Not if undue cost OR if in an inaccessible format (adopted from Zubulake but not in
                          1. Zubulake – most accessible to least accessible formats
                          2. Online data (hard drives)
                          3. Near-line data (optical disks)
                          4. Offline storage/archives (accessible ends here)
                          5. Backup tapes
                          6. Erased, fragmented, or damaged data
                  ii. Court says it's an accessible media format, but still too expensive because of retarded
                      indexing system
         b. Should it still be produced? What factors go into "good cause" for requiring production of
             inaccessible/unduly burdened ESI? Many cost-benefit factors to consider:
         c. 26(b)(2)(C)(iii)
                   i. Needs of the case
                  ii. Amount in controversy
                iii. Resources of the parties
                 iv. Importance of issues
                  v. Importance of discovery in resolving the issues
         d. Advisory Notes
                   i. Specificity of request
                  ii. Quantity of information available from other sources
                iii. Earlier failure
                 iv. Likelihood of unique relevance
                  v. Predictions of usefulness
                 vi. Importance of issues
                vii. Resources
         e. Zubulake cost sharing factors
                   i. Extent to which request is specifically tailored to discover relevant info
                  ii. Availability of such info from other sources
                iii. Total cost of production compared to amount in controversy
                 iv. Total cost of production compared to parties’ resources
                  v. Relative ability of each party to control costs
                 vi. Importance of issues at stake in litigation
                vii. Relative benefits to parties obtaining information
          f. If court decides costs outweigh benefits, should order discovery not be had or requester
              must pay for it
          g. Two tiers for ESI - first asks if accessible/inaccessible; only then asks about good cause
                   i. Once producer shows that ESI is inaccessible, burden is on requester to show good cause
                      that it should still be produced (usually burden is on producer to show that's unduly
                           1. If in a format you have to rebuild or restore in some way, it's inaccessible;
                               difficult or expensive to obtain it, then also inaccessible
                           2. In Aubuchon, court said it's not reasonably accessible because it's poorly
                               organized and therefore difficult to obtain – didn’t do the cost-benefit analysis
                  ii. Discovery divided into two categories:
                           1. Not reasonably accessible ESI
                                    a. Burden on requester to show good cause for producing ESI; must show the
                                        benefits outweigh the costs
                           2. Everything else - reasonably accessible ESI and all other discovery requests
                                    a. Presume it's reasonable to produce and burden is on the producer/objector
                                        to show it's not
          h. Tricky data storage for companies:
                   i. Format: accessible vs. inaccessible (interferes with business)
                  ii. Organize poorly, so business can access, but still inaccessible/ unduly expensive to
                 iii. These rules give companies an incentive to store their information poorly in an accessible
                      format to avoid discovery if they get sued; although Aubuchon makes it a big risk, since
                      Benefirst ends up having to pay
VII.   Privileged Information
          a. Work-Product Doctrine
                   i. Protects documents and tangible materials prepared in anticipation of litigation or for
                      another party or its representative from discovery (Rule 26(b)(3)), unless party shows it
                      has substantial need and can’t, without undue hardship, obtain substantial equivalent by
                      other means.
                  ii. If court orders production, must protect against disclosure of mental impressions,
                      conclusions, opinions, or legal theories of party’s atty or other representative concerning
                 iii. May obtain person’s own previous statement about the action or subject matter.
                 iv. Protects an atty’s mental impressions
          b. Attorney-Client Privilege:
                   i. Confidential communication between person and attorney for the purpose of seeking
                      legal advice
                  ii. Any communication from atty to client when made in the course of giving legal advice
                 iii. Confidential – can’t be in presence of 3rd party or share info with 3rd party (e.g. expert)
                           1. Agents of atty are protected as long as confidential
                 iv. To invoke the privilege, must establish: 1) person sought to become a client; 2) atty is a
                      member of the bar or his subordinate; 3) communication relates to facts told by the client
                      without presence of strangers for the purpose of securing either an opinion on law or
                      legal services and not for the purpose of committing a crime/tort, and 4) the privilege has
                      been claimed and not waived by the court
          c. Hypo: Someone got fired; CEO asks you to interview witnesses and keep a file on it; P asks for:
                     i. Personnel director's report (under Rule 34)
                            1. Both relevant and proportionate
                            2. Is it privileged within the work-product doctrine? (no atty-client here)
                                    a. 26(b)(3) - is it for trial preparation? (codifies Hickman)
                                    b. Applies to work prepared "in anticipation of litigation"
                                    c. "Oh, no, we're going to get sued" attitude, but might be routine/standard
                                        exit memo - need to find this out
                                             i. To avoid this: put in memo: because of fear of suit
                            3. Requesting party has to show substantial need and undue hardship for materials
                                    a. Substantial need for the report, but no undue hardship – other party could
                                        interview witnesses
                    ii. Personnel director’s notes (under Rule 34)
                            1. Same as above
                            2. If she disappeared and couldn’t find witnesses, there would be undue hardship
                            3. 26(b)(3)(B) – if it’s mental impression, conclusion, opinion, etc. and she’s a rep
                                concerning litigation, privileged so probably not discoverable
                                    a. Courts still unsure about this, but def need more than substantial need and
                                        undue hardship
                   iii. Depose personnel director – what did witnesses tell you? (under Rule 30)
                            1. Same as above
                            2. Hickman allows asking about facts
                            3. 26(b)(3)(A) only protects documents and tangible things, so it's allowed
                   iv. What did your report say?
                            1. 26(b)(3)(A) - only protects documents and tangible things
                            2. Hickman says description of document is the same thing as tangible doc, so you
                                can't ask this - goes further than 26(b)(3)(A) to limit discovery/protect
VIII.   Hickman v. Taylor (U.S. 1947) (pg. 137) Before 26(b)(3), which codified this case, no statutory basis
        for work-product doctrine yet. Created this privilege for policy reasons (lawyers need to be able to do
        their jobs without worrying someone might come after them for their thoughts).
            a. Might be broader than Rule because the rule only covers tangible things, but Hickman seems to
                apply to more than just tangible (see above hypo)
                         a. Only materials prepared by the attorney
 IX.    Regional Airport Authority v. LFG, LLC (6th Cir. 2006) (pg. 148) About attorney-client privilege.
            a. Privilege only attaches if communications regard legal advice.
            b. Minority Haworth line: atty work product not discoverable because it has been shared with
                testifying experts
            c. Majority Rule 26 bright line: all information provided to testifying experts should be disclosed
            d. Holding: litigants can no longer argue that materials furnished to experts to be used in forming
                their opinions (whether or not ultimately relied upon by the expert) are privileged or protected
                from disclosure when those experts are testifying or being deposed. Read 26(a)(2) as requiring
                disclosure of all info provided to testifying experts.
            e. An un-retained expert is not discoverable; but 26(b)(4) doesn't tell us whether giving privileged
                info to an expert waives the attorney-client privilege (probably would count as a 3rd party, and
                probably would waive, but opposing party would need to find that expert, etc.)
            f. Many attorneys will hire both testifying and non-testifying experts
                     i. Not everyone can afford two or more experts
                    ii. Inefficient

                  iii. Limits testifying expert(s) - only get hypotheticals, while non-testifying experts really
                       help prepare the case
                  iv. Not foolproof
          g. Yet another example of how adversary system is at odds with discovery. Together, notice
              pleading, liberal discovery, and the adversary system create various problems/inefficiencies.
          h. 26(a)(2)(B) and 26(b)(4)(A) are interpreted by the majority to disclose testifying expert
                    i. Under discussion to limit the disclosure of the information the attorney provides to the
                       testifying expert; the report would still be discoverable, but the conversations between the
                       lawyer and expert would be excluded
 X.    Asserting/Waiving Privilege
          a. Must file motion for protective order or object to discovery request within time period for
              response. If party fails to objet in timely fashion, privilege is waived. Must prepare log to
              describe the information without giving it away.
 XI.   Privilege Worksheet
          a. Taking someone aside counts as confidential
          b. Atty-client privilege is absolute unless waived (substantial need and undue hardship don’t
          c. Waive privilege if you tell 3rd party without hiring the person first – must be agent or employee
          d. Traditional rule: even if you inadvertently disclosed something, you waived privilege
          e. Today: if you’ve taken reasonable precautions to avoid disclosure, you don’t waive
                    i. 26(b)(5)(B): notify other party of inadvertent disclosure and other party must destroy or
                       return until court decides the issue
          f. Atty-client privilege/work-product waived by testifying experts – courts divided on this
          g. If expert retained but not testifying, above privileges are preserved
XII.   Case Management
          a. Tower Ventures v. City of Westfield (1st Cir. 2002) (pg. 168) P didn't follow scheduling order
              under 16(c) and (e); case dismissed. Court seems to waiver between its own interests and other
              litigants' interests. Deadlines are important!!!
   Too harsh                                                              Not too Harsh
   There was no prejudice; that makes it a little harsh - court is imposing Imposed their own deadline and missed it
   the sanction for docket control
   (Is it legit for the court to worry about its own docket - FRCP 1 does Missed multiple deadlines
   not allow this…)
      i. But this is the time other litigants could be using - want to deter
           others from doing this
                                                                          Client has recourse - can sue for malpractice
                                                                          No excuse - given opportunity and they
                                                                          didn't provide one
           b. R.M.R. v. Muscogee County School District (11th Cir. 1999) (pg. 198) P didn't list a crucial
              witness in the pretrial order; court said that witness couldn't testify - huge prejudice here.
   Not too harsh                                          Too harsh
   P had two other options; didn't make use of them       Had a good excuse; D's fault that they didn't have the
                                                          witness (as if they were withholding information)
   Really prejudices the defendant                        16(e) - court should act to prevent manifest injustice (THE
                                                       crucial witness)
   Limits power of judges, but case management         P pays for lawyer's mistake; even if sues for malpractice,
   requires discretion (maybe we should be happy       won't get what they wanted (vindication) - money can't
   judges don't exercise 16(e) all the time)           compensate
                                                       Judge could have provided the two alternatives - point of
                                                       managerial judging is to avoid this situation
                                                       Troubled by the variance - what does this judge do in other
                                                       cases? What do other judges do?
                  i. Ct. App. could have said, in light of D.Ct.’s ability to act otherwise, it was an abuse of
                     discretion for court to not allow the witness to testify; couldn't say it was an abuse of
                     discretion to not sua sponte issue alternatives
                 ii. Transsubstantive - the rules apply to all cases, but this case makes it seem like they don't
                         1. Where the client is going to pay and can't be compensated for lawyer's mistake,
                             should she be subject to a different rule?
                         2. 16(e) provides a little bit of an out, with "manifest injustice" but this judge didn’t
           c. Before FRCP, litigation was a game; FRCP tried to fix with notice pleading, but doesn't provide
              much information, so you have discovery , but discovery creates in own
              problems/inefficiencies/opportunities for game-playing/unfairnesses, so judicial case
              management meant to fix those problems, and judicial case management has its own problems…
                  i. What can we do to fix this?
                         1. Stricter standard of review (less deference) by appellate courts
                         2. Moves the issue of review up further - could challenge every case
                         3. More specific rules
                                 a. Injustice: over-inclusive vs. under-inclusive
                                 b. Will move toward a standard; more specific the rule is, more judges will
                                     have to interpret/change the language
                         4. More discretion - change rule 16(e) to say "as justice so requires"

Post-Litigation - Preclusive Effect of Judgments (Preclusion/Res judicata – when something cannot be
relitigated, assuming the suit could have been brought originally. Can bring using 8(c) affirmative defense or
SJ) (pg. 323)
   I.    General
             a. If claim/issue is decided during SJ or other motion on the pleadings, it’s precluded if it was
                decided on the merits; BUT if just decided on SMJ (12(b)(1)), then only preclusive on jx;
                12(b)(6) often not preclusive because often not on the merits because an element was missing
  II.    Procedural ways to bring:
             a. 12(b)(6) motion (anything that is purely legal question)
             b. Affirmative defense in answer (8(c))
             c. SJ
             d. JMOL, if discovered late
 III.    Claim Preclusion (res judicata): Restatement § 17(a) and (2)
             a. Prevents claims that have been previously litigated or should have been litigated
                     i. Merger: P wins; Bar: P loses

                 ii. Ps can’t bring claims they should have brought originally; Ds can’t bring claims they
                     should have brought because basically 13(a) counterclaims they failed to bring
         b. Rush v. City of Maple Heights (OH 1958) (pg. 325) Where party suffers both personal injury
             and property damage as a result of the same wrongful act, only a single cause of action arises. P
             barred from raising one of the claims later.
         c. Hypos:
                  i. Tort of common law battery; P loses (§ 17(2)); P brings §1983 lawsuit against the police
                     officer for use of excessive force
                         1. Does it arise out of the same transaction, occurrence, or series of connected
                                  a. Yes - the arrest/scuffle was the transaction - they should have been
                                      brought together so second is precluded/barred from being brought
                 ii. Tort of common law battery and P wins (§ 17(1)); P brings §1983 lawsuit against the
                     police officer for use of excessive force
                         1. Subsequent claim must be merged with original judgment
                iii. Battery - P loses; P wants to bring libel claim against the officer
                         1. Does it arise out of the same transaction or occurrence?
                                  a. Painter - arrest force/libel case - was the libel claim compulsory? Court
                                      found it was compulsory so it was the same transaction or occurrence -
                                      gave broad reading of trans/occurrence to include the claim in supp jx
                         2. If it's the same transaction/occurrence, claim would be precluded - in this case,
                             we're giving trans/occurrence a narrow reading because we're excluding a
                             potentially meritorious claim
                                  a. Reading trans/occurrence broadly excludes possibly meritorious claims
                         3. ** Same trans/occurrence also REALLY important for relation back - if you read
                             it the wrong way, might exclude potentially meritorious claims
IV.   Issue Preclusion: Restatement §17(3), (§27-28)
         a. Precludes litigation of facts/issues that were already litigated, regardless of different CoA
         b. Direct estoppel (same claim)
         c. Collateral estoppel (different claim)
         d. Hypos:
                  i. Battery - jury returns special verdict: officer did beat P; P not resisting arrest; officer beat
                     him because P was demanding payment on independent contract; contract payment was
                     due and unpaid; P wins and brings breach of contract suit
                         1. Issue was actually litigated BUT not essential to the judgment - contract thing
                             was not essential to the judgment…
                 ii. 3 car accident: Sherry sues George and wins; G caused accident. George sues Rubin.
                         1. If George had won previous case, she couldn't use it against Rubin because he
                             wasn't a part of the original suit - had never had his day in court/chance to
                iii. Traditional rule: mutuality - both parties have to have been bound by the original
                         1. Above - Rubin wasn't bound by the original judgment
                iv. Modern rule: Blonder-Tongue (in Parklane): defensive nonmutual collateral estoppel
                     (issue preclusion) is ok (most jxs always allow)
                         1. George can bring the claim against Rubin, but Rubin wins because George was
                             already found liable for the accident in the original case - Rubin is defending
                             against someone who lost on this issue in the first lawsuit (doesn't matter
                             whether G was P or D in first case; point is that she lost)
                         2. Reason: prevent someone from continuing to litigate against a bunch of
                                a. Under Blonder-Tongue, patentee lost first case against infringer because
                                    improper patent; tried to keep suing infringers, but precluded
                  v. Sherry sues George - S wins; Rubin sues George - wants to use previous judgment
                         1. Parklane Hosiery Co. v. Shore (U.S. 1979) (pg. 335) - allows offensive
                            nonmutual collateral estoppel in certain cases (only some jxs allow)
                         2. Can't use if: could have easily joined first lawsuit OR if it would be unfair to the
                            other party (Rule from pg. 339)
                                a. In this case, he could have easily joined the original suit because he was in
                                    the accident - could have joined with Sherry against George
                         3. What would make it unfair?
                                a. Different incentives - maybe first case was only for $50 - didn't litigate too
                                b. Procedural opportunities available in the second case not available in the
                                    first case that would have caused a different result
                         4. Rehnquist's dissent: should have allowed the facts of the case to be heard by a
                            jury - (kind of wrong about the 7th amendment thing) - it would have been unfair
                            to the D for the case not to have been heard by a jury
                 vi. In IIED case against entire civ pro class, Sherry could join all plaintiffs under 19; she'd
                     want to fight hard to win (incentive to win)
                         1. Pg. 346-7 - Martin v. Wilks (U.S. 1989) (pg. 346) - Rule 19 - City tried to argue
                            that white firefighters are precluded from suing over promotional preference
                                a. Court found that because firefighters weren't party to original suit, aren't
                                    precluded; if city had wanted whites to be precluded, should have joined
                                    them in the suit using rule 19
                                b. Congress overruled this with 1991 Civil Rights Act: said you have to
                                    try to participate/join/intervene if you are aware of the suit
 V.     Combinations:
          a. Old party as new P wants to use against new D: Never
          b. Old party as new D wants to use against new P: Never
          c. New party as P wants to use against (old party who is) D: offensive
          d. New party as D wants to use against (old party who is) P: defensive
          e. Note: Does not matter whether old party was P or D in first suit, although usually will be same
             as in second
   I.      Background
           a. State vs. Federal Rules of Civ Pro
                   i. State courts have own rules of civil procedure; may be similar to federal rules, but when
                      you're in state court, you still have to apply the state rule or apply state interpretation of
                      the rule
                  ii. In federal court, have to apply federal interpretation of the rule
           b. Sources of law
                   i. U.S. Constitution - area of personal jurisdiction; limit on the jurisdiction of the federal
                      courts and of the state courts
                  ii. Statutory limitations subject matter jurisdiction
                 iii. Federal Rules of Civil Procedure (FRCP) - originated in 1938, numerous revisions;
                      restyled in 2007
                     1. Congress passed Rules Enabling Act to enable SC to promulgate rules; they don't
                         write the rules themselves; advisory committee writes most of them; Congress can
                         always veto rules, sometimes Congress passes rules themselves
                     2. Treated as statutes for purposes of interpretation
      c. Judicial opinions (precedents)
      d. Legal Process
               i. Suing is the last option - evaluate the merits of the case
              ii. Claim/cause of action/legal basis for the lawsuit (each of the below is a count)
            iii. Remedy - what does the client want?
                     1. Damages for mental pain and suffering OR injunction OR restitution
                     2. No necessary connection between the cause of action and the remedy
                     3. Sometimes the remedy is prescribed; sometimes certain remedies are impossible
                         for a given cause of action; sometimes you just make it up
             iv. Which court to file in (state or federal)?
                     1. Subject matter jx
                     2. Which state (location of federal or state court)? Matter of personal jx
                     3. Venue? (City within the state)
                     4. State courts can hear any cases unless Congress takes it away (general jx)
                     5. Federal courts hear only:
                              a. Federal question jx – federal law has been violated
                              b. Diversity jx
                                      i. Parties are from different states and amount is more than $75,000
              v. Choice of law (which law is being used)
             vi. Rule 3: File a complaint with the court
            vii. Rule 4: Give the defendant notice (we don’t cover this)
                     1. Rules 3 and 4 don't apply if you're in state court - states have own rules
           viii. Rule 8: What the complaint should say
                  a. Give notice of what the lawsuit is about
             ix. Defendant has to answer
                     1. Can try to get rid of the suit by moving to have it dismissed
                     2. Can answer the complaint
              x. Discovery
                     1. What you want to ask for and how you ask it - about strategy and experience
             xi. Judicial case management
                     1. Judge can play larger or smaller role
            xii. Judge and the jury
                     1. Summary judgment - judge can take case from jury
                     2. Judgment as a matter of law
           xiii. Joinder
                     1. Multiple claims/counts
                     2. Multiple defendants
           xiv. Generally can’t relitigate the same issue?
II.   Rules
      a. Rule 1: Purpose of the rules “should be construed and administered to secure the just, speedy,
         and inexpensive determination of every action and proceeding.”
      b. Rule 2: Civil action is the only form of action.
      c. Rule 3: Action commenced by filing a complaint with the court.


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