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					                                                                                                2/14/2011
I. WHERE TO LITIGATE?                                SUBJECT MATTER JURIS, SUPPLEMENTAL JURIS, VENUE
Unlike state courts, which can hear almost any claims (with a few exceptions like federal anti-trust claims), federal courts are
courts of limited jurisdiction, which means that they cannot hear cases without constitutional permission. Under Article III, there
are two main types of federal subject matter jurisdiction, diversity and federal question. Diversity jurisdiction most commonly
occurs between citizens of different states or a citizen of a state and a foreign citizen. Federal question jurisdiction occurs where
there is claim arising under federal law such as the Constitution, federal statutes or federal regulations.

The policy rationale behind diversity juris: Framers wanted to prevent prejudice to outsiders, that would result form forcing them into
certain state courts. Also, for foreign citizens, the federal government has a heightened interest in proceedings for purposes of
international relations.

The policy rationale behind fed ? jurisdiction: Must have jurisdiction where there are federal interests that are too important to be
decided by state courts, and also so that the US judicial branch speaks with one voice on matters of federal law for purposes of efficiency
and uniformity and to enable people to order their conduct.

Congress can create, destroy, and alter the jurisdiction of the lower federal courts, because only the Supreme Court is constitutionally
mandated and given an unalterable scope of jurisdiction. State cts can hear almost ANYTHING, except if limited by state constit. or
legisl. or exclusive fed juris. (anti-trust). Results in concurrent juris, areas where both fed cts and state cts can decide issues. (gen.
premise – powers not granted to fed gov’t reserved for the states).

DIVERSITY JURISDICTION (28 USC §1332)
Under Article III, and 28 USC §1332, For diversity jurisdiction to be proper there must be citizens of different states or a state
and a foreign country on opposite sides of the “v.” There must be complete diversity (Strawbridge), meaning that now plaintiff
can be the same as any defendant AND there must be an amount in controversy exceeding $75,000. (You must also make sure that
a plaintiff is not picked just for diversity purposes (Rule 17a)). The test for states citizenship is first a test of US citizenship and then
a test of domicile for individuals. Individuals are domiciles where they BOTH have a place of residence and an intent to stay
(Mas). If they are not currently properly domiciled anywhere, than they will be considered domiciled at their last place of
domicile. Under §1332, aliens are also domiciled under the test for individuals. US Companies are presumed to pass the US
citizen test, and are considered domiciled in (potentially) two places. The first is where they are incorporated (usually DE) and
the second is their principal place of business. If there are multiple principle places of business the tiebreaking test will be to see
which of these is the “nerve center.” Unincorporated Associations are domiciled wherever their members reside. Domicile is
determined based on domicile on the day of the institution of the action. The amount in controversy inquiry will only be into
what it is possible for the plaintiff to recover under the law, not what is likely for them to recover based on the judge’s opinion.
Claims may be aggregated, even unrelated claims, arising out of different transactions, among any one plaintiff and one
defendant, but not between multiple parties.

Test:
    1) Between: 1) cits of diff states 2) st. cit . and cit of foreign st 3) cits of diff states and subjs of foreign sts as addt’l ptys 4) a foreign
       st as π and citz of st or diff sts
    2) COMPLETE DIVERSITY (Strawbridge)
    3) CITIZENSHIP -1) US Citizen; 2). . .
            a. Person – Domicile - 1) place of residence and 2) intent to stay (Mas)
            b. Corporations – TWO domiciles – 1) place of incorporation OR 2) principal place of biz (tiebreaker: nerve
                 center)**note – pers. juris can be gotten in lots of places for biz, but domicile for diversity ONLY in two places
            c. Unincorporated Associations – wherever members reside
            d. Alien – under §1332 – alien is considered where domiciled.
    4) AMOUNT IN CONTROVERSY – MORE THAN 75k ($75,001); inquiry only into what is POSSIBLE under law, not as to
       possible merits of the claim or reasonableness of what jury might decide to award.
    5) AGGREGATION – can do it one on one but not diff π’s or against multiple defs; even if claims form diff transactions. .

**Policy behind aggregation and amount in controversy: Amount requirement is to exclude inconsequential cases from the federal
courts while keeping open to all. It matters how much you ask for (in good faith), not how much you win b/c the judgment comes early
in the process, and you don’t have all the facts, so you want an easy line. One plaintiff can aggregate all claims, even unrelated ones,
against one defendant. One plaintiff cannot aggregate claims against two defendants. Traditional rule is that two plaintiffs cannot
aggregate (especially important in class actions), although if one plaintiff has over $75,000 in damages SOME courts say she can carry
the entire class of others because there is supplemental jurisdiction over their claims under §1367.
                                                                                                                                             2/14/2011
FEDERAL QUESTION JURISDICTION (28 USC §1331)
Under Article III, federal question jurisdiction occurs under claims “arising under the Constitution, laws or treaties of the United
States.” Although the Supreme Court has broadly interpreted “arising under” in Osborn to encompass any claim with a federal
“ingredient,” the court has limited this jurisdiction under 28 USC §1331 to include only those cases in which the plaintiff has
stated a federal claim as part of the “original cause of action”, not those in which the defendant asserts a federally related
defense. This “well-pleaded” complaint rule was established in Mottley. This bright-line rule has been established because
courts do not want to wait for the ∆’s answer to determine if they have subject matter jurisdiction or not.

    1) Arising under federal law
    2) Well-pleaded complaint (Mottley - free rr passes) bright line rule b/c cts don’t want to wait for the answer;
    3) No amount in controversy req.

Tricks to FQJ – look for CONTRACTS cases – even if it is a fed statute that is involved, if the claim is about BREACH, or contractual
interpretation it is probably a STATE claim.

SUPPLEMENTAL JURISDICTION (28 USC §1367)
Supplemental jurisdiction is authorized under §1367 and operates to allow a related state claim to be added to a claim with valid
federal jurisdiction. If there was no supplemental jurisdiction then most π’s would have a strong incentive to just sue in state
courts, which would mean that many state courts would end up deciding federal issues. Under Rule 18 even an unrelated state
claim can be added permissively if there is an independent ground for federal jurisdiction (such as diversity), however if there is
not an independent ground for jurisdiction, the claim must be related to the federal claim under the Gibbs test. The two claims
must share a “common nucleus of operative fact” in order for supplemental jurisdiction to be constitutional; because this has
been codified in §1367 there is also the requisite statutory grant. However, even if a claim passes the Gibbs test it will be barred
under 1367b if the π amends to bring in a nondiverse party under rules 14, 19, 20, or 24 which destroys diversity. The rationale
behind this comes from the Owens case in which the court did not want a plaintiff to “game the system” by choosing a federal
forum and then having diverse defendants implead other nondiverse defendants. In addition, 1367c notes that it is still
discretionary for a court to add supplemental claims and a court may refuse to state claims when: 1) the state issue predominates
(an the federal issues is a mere “appendage”) 2)the federal claims get knocked out quickly 3) there is a novel or complex issue of
state law or 4) other compelling reasons.

Finally §1367d says that the statute of limitations tolls on state claims trying to be brought in fed ct so that if they get kicked back
to state court they can still be heard.

28 USC 1367:
    1) Is it constitutional? Gibbs test ―common nucleus of operative fact‖ – cannot sue on unrelated state claims (In some cases
       although there may be a causal relationship, it is too attenuated to make two claims part of the same cnoof.

    2) Is there a statutory grant? In general yes:1367a –if it satisfies Gibbs, satisfies us. But if the original jurisdiction is diversity
       jurisdiction then must check against 1367b (if org claim under fed ?, just cnof test). 1367b (Owens -3rd pty brought in by
       interpleader - π amends to include nondiverse party – ct sez π is gaming the system) – no if div is wrecked b/c of π bringing in
       nondiverse ppl under frcp 14, 19, 20, 24. The exceptions to 1367(B) do not apply unless the π is asserting a claim

    3) Should the ct exercise discretion? Gibbs pt two is mimicked (but w/o Brennan’s jury concerns) by 1367 c.; Should not add if:
       1) State issue predominates (fed issue is ―appendage‖) 2) Fed claims knocked out quickly 3) Novel/complex issue of state law 4)
       Other compelling reasons (maybe jury confusion – Brennan’s esperanto instructn)?

    4) Note** §1367 sez stat of limitations tolls – eliminates risk of being bounced and not being able to go back to state cts.

Loophole in 28 USC 1367 – The statutory language reads:
       (b) . . . the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties
        under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule
        19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims
        would be inconsistent with the jurisdictional requirements of section 1332
       The point is the intention of 1367 is to allow nondiverse defs to assert claims even if no diversity b/c they didn’t choose the forum. This is why
        it is limited to ―claims by PLAINTIFFS against . . . ― (i.e. ∆ can impleaded a nondiverse 3 rd pty ∆; but π cannot assert a claim OR
        COUNTERCLAIM against a non-diverse impleaded 3rd party ∆)
       BUT intention was to provide no such exception for π’s who are masters of their own suit, and so it says that any plaintiffs joined under 19 or
        24 cannot assert claims (against the original π) that wreck diversity either; π’s should not be allowed to assert claims against each other if they
        are nondiverse. So loophole is that C(CT) sues M(MA); and then C brings in T(CT) under 20a as an additional π ; the T decides to crossclaim
        against C (original π); T is not a π suing a party brought in by a rule, T was the one brought in by the rule.
                                                                                                                                  2/14/2011
II. WHAT LAW APPLIES?                              CHOICE OF LAW AND ERIE
Erie problems arise where a federal court is applying state law which conflicts with procedural federal law (and vice versa).
Before Erie, there was ban assumption of federal law trumping in these cases, even where it was judge-made federal law (Swift v.
Tyson); so that the brooding omnipresence of federal judge made law would over come state common law. The problems with
this approach raised the three main Erie issues: 1) comity, because there was a lack of uniformity (by encouraging forum
shopping, as in the taxicab case, where they reincorporated in one state to get into court in another state) 2) federalism, in that
federal courts were encroaching into state sovereignty and 3) separation of powers because federal courts were deciding issues
that Congress did not have the power to regulate.

ERIE DECISION TREE
        Is there a real conflict? Can you read the two rules together, is there a way to make them not inconsistent?
         Courts work hard to reconcile state law that seems substantive, the question is how far will they go. Walker shows that they
         will go pretty far, because in a case which was very similar to Hanna, the court applied a different (modified outcome
         determinative) test since the state rule in question was weakly substantive (statute of limitations), by stretching to read a FRCP in
         a way that would avoid a conflict. Instead they read an exception for diversity jurisdiction into Rule 3, which shows just how far
         courts are willing to bend over backwards to avoid a conflict. (Policy: The policy behind this is that Courts feel bad because if
         there is a conflict the FRCP will likely trump, and for comity reasons it is undesirable to have a FRCP trump a quasi-substantive
         state policy.)

        If there is a conflict what is the source?

1) Constitution  fed law trumps; i.e. if the 7th amend mandates a jury, that will trump.

2) Judge-made substantive law (rules about torts)  state law trumps, Erie; fed cts not supposed to make law in general common law
areas (exception for admiralty) Policy: Federalism

3) Federal statute(28 USC, etc) (Congressionally enacted)  Same as FRCP test; Test is congressional power, within power of fed
govt to regulate the courts  ―arguably procedural, ergo constitutional‖ (Hanna II) cannot expand or contract any right. Erie inapplicable.
Policy: Comity- nothing mandates that state claims prevail here but fed cts will try to avoid displacing stat elaw if they can avoid the
conflict; (NO federalism b/ cong has power or has delegated to cts; NO sep of powers b/c Constit allows cong or Cong delegation to ct to
make the rules)

4) FRCP(Congressionally enacted) v. state law (weakly substantive or procedural)  Test is Hanna Part II, whether or not Congress
has the power to act. Was it properly enacted and was it within cong’s bounds  So long as it is “arguably procedural, ergo
constitutional” and checks against the Rules Enabling Act (2072) (applies to cong. made proc law) standard (must not
―expand/contract‖ any right) see if it ―abridges, enlarges, modifies, substantive rights‖; it is likely that if it is arguably procedural than
it will pass exp/cont test. Erie (and Byrd) are inapplicable. “Arguably procedural” is a pretty broad standard – would include things that
we might call weakly substantive under RDA. (Pol. above)

*If displaced state law is substantive in a strong sense, however, FRCP would be invalid under the Rules Enabling Act; if it turns out
that state substantive law being trumped by FRCP, good chance that it may not actually be a procedural situation. Subst rights test is a
toughie – few cases would pass this bar – probably only if it has a substantial impact on a state policy unrelated to the litigation.

5) Judge-made procedural law (JMPL)
*** If the state law is WEAKLY SUBSTANTIVE, under the Rules of Decision Act (1652), and the York/Byrd/Hanna test then the
state rule will trump JMPL. (RDA – has a much narrower conception of what is procedural, the category of substantive expands quite a
bit; i.e. SOL is considered weakly substantive). POLICY: State law trumps b/c: Comity (need to respect state autonomy) essentially it
is a quasi-federalist concern – states have a right to decide their own subs law, fed cts don’t want to intrude even when they have a right
to; maybe sep of powers concerns but prob not b/c JMPL is an area where fed cts have power to make law – hard to know where the limits
are on this power, though. Cts clearly can act in some situations but at other extreme you want to avoid unelected judges making law.

***If it is PURELY PROCEDURAL then you apply the Hanna Part I/Byrd test. First you ask if the application of the rule is
―outcome determinative‖ per the Hanna definition, which asks whether or not the two rule encourage forum shopping or would result in
inequitable administration; ―outcome determinative‖ means ex-ante would you chose one court over another b/c of the rule (policy
concerns here are forum shopping and inequitable administration). If outcome determinative then state rule will apply; if not, FJMPL
applies. Then you apply the Byrd balancing test (which was reaffirmed as good law in Gasperini); sometimes the fed interest is so
high, the fed interest can outweigh the state interest (i.e. interest in right to a jury). POLICY: If not o.d, fed law b/c then no real issue
(fed ct w/in its rights to assert desire for uniformity w/in fed cts); if o.d. then Hanna concerns of forum shopping and inequitable
administration (comity issues really) and you should go with state unless strong countervailing fed interest (comity again). Idea with
using “outcome determinative” is that the case should not reach a different legal result on the basis of rule distinctions.
                                                                                                                                     2/14/2011
ERIE POLICY ANALYSIS:
Federalism: there is no intrusion into areas where Congress lacks the power to regulate (Erie) If Congress has the power to legislate and
it does legislate; however, it trumps state law. (Concern is that the fed government has limited powers; can’t act where states have
sovereignty (no fed common law))
Sep of powers: Federal courts cannot make law; Congress makes law. So Courts can only make law where Congress has delegated
authority to them OR when exercising prope common law authority (interstitial legislating or making certain procedural rules to govern
federal courts) (If concurrent juris., and no cong. action, the cts shouldn’t be leading the charge; cts can fill gaps but not legislate)
Comity: Respect state cts.; hold back because they want to show respect – want to avoid forum shopping.
Why treat judge made proc rules diff from cong made proc rules? (Hanna dissent) No direct concerns with three themes, but purpose
here is to create a proxy to be sure that judges don’t overstep; assumption is that congress’s action is clearer so okay, but not okay for cts
to get ahead of congress (who’s watching the courts). OD test is to reign in cts; cabin judicial discretion where JMPL seems to intrude on
state subs law or change outcomes.

Erie cases:
Swift: (contract dispute – state sez no, fed sez yes to consid); state common law is no good – so you use fed law here; brooding omni. -
cts are finding the general rules together. history of statutory construction ERIE overturns Swift.

Erie –( PA man hit on RR tracks - Erie wants PA law; ∆ wants general fed. law.); Ct sez substantive state common law trumps where no
fed power to regulate. Fed cts should follow precedents of highest state ct. Policy: Sep powers and Federalism.

York – (noteholders suing trustee –fed or state SOL) – FJML does not apply where rule is ―outcome determinative‖ (no sub/proc
distinction). Rules of Decision Act involved here. Policy: Comity.

Byrd (fed jury v. state no jury) – new def of ―outcome determinative‖ if the outcome would be different, ex post. Argument that jury
and judge will come to the same decision most of the time. Also returns to subs./proc. question by asking if rule is just about ―form and
mode‖ rather than tied up with substance of related statutes. Allusion to 7th amendment concerns, and says that if there is a countervailing
fed interest it might trump. Ct reqs fed law in this case b/c “state law cannot alter the essential character or function of a federal
court.” Policy: Comity- legitimate for the fed cts to say that they have a procedural interest of their own in protecting the right to a jury.

Hanna – (car acc.; service under frcp 4: copy left at house v. state rule: in person)
Pt I – under Byrd/York test it is outcome determinative; but redefines OD - concern is forum shopping look to ex ante analysis.
Pt. II – RULES ENABLING ACT (gives SC the right to prescribe rules of “practice and procedure” for the federal courts”; provides
constitutional and statutory authority for the adoption of the FRCP) means that rules always win over states (congressionally mandated
law occupies the field). So long as FRCP are proper exercise of cong. power than they trump. Harlan sez – arguably procedural, ergo
constitutional . . . REA covers rules that ―though falling within the uncertain area between substance and procedure are rationally capable
of being classified as either)‖. Ct sez Service rule is arguably procedural . . . this applies to FRCP and all other congressional mandates
about fed procedure . . . if it turns out that state substantive law being trumped by FRCP, good chance that it may not actually be a
procedural situation. Policy: Comity (Quasi-federalism if state rule is weakly substantive)

Burlington – (pers. injury case; mandatory frivolous appeals sanctions rule in state). Ct sez rules are clearly in conflict – a mandatory
versus a discretionary damages standard for frivolous appeals. Can stretch to read them together (state ct still has discretion to increase
past 10%), but ct declines to do this. Policy: Comity only goes so far, fed cts have interest in having own procedural rules.

Conflict standard: probably a conflict will be found where as in Burlington, federal law provides a discretionary standard and state law
requires a particular outcome.
Walker v. Armco – (personal injury from nail; SOL problem - state service for commencmt; frcp file complt for commcmt); Ct reads
Rule 3 so as to avoid a conflict so that state weakly subs law will prevail. Sez there is inherent exception for div actions in Rule 3. Ct sez
OK statute is ―substantive decision by that state that actual service . .. is an integral part . . . of the several policies served by the SOLs.‖
Walker/Armco (FRCP 3) vs. Hanna (FRCP 4) - both rules have same structure; but two diff results. Hanna rule is procedural just about
service and walker rule is about statute of limitations. Policy: Comity – some cases have avoided displacing state law by reading the
FRCP very narrowly. if a quasi subst state rule then ct bends over backward to avoid having a conflict, b/c if conf then FRCP trumps.

Gasperini (NY worried about torts, wanted to restrict some judgments) , so said 1) harsher trial ct standard and 2) appellate review de
novo). Ginsberg says trial ct standard is subs. and app review is proc. (not clear why she does this – actually looks like both are subst.
Three sources – Constit. (reexamination clause), FRCP 59, judge made proc law – G says only jmpl applies. So for trial ct - fed law
yields- looks substantive; App review stand. - state proc rule conflicting with fed pro rule, she says its outcome determinative, then uses
the Byrd balancing test and says we really care about this b/c of 7 th amend - fed interest trumps. Scalia has the strongest args on all of
these issues; she has it all messed up – missing what’s outcome determinative. Gasperini is weaker precedent cause its so unclear. What
to take from it is: sub/procedure distinction (Ginsburg’s big mistake -- uses outcome determinative to decide if something is substantive)
 and brings back Byrd balancing test. Gasperini is like Walker in that it avoids a conflict (between FRCP 59 (MFNT) and a state
law requiring very stringent damages review).
                                                                                                                               2/14/2011

III. WHO CAN LITIGATE?        JUSTICABILITY (π) AND PERSONAL JURISDICTION (∆)
NEED TO CHECK: JUSTICABILITY;PERSONAL JURIS SUBJECT MATTER JURIS. . .

PERSONAL JURISDICTION
Federal district courts have personal jurisdiction over anyone who the state in that district would normally have jurisdiction over.

For personal jurisdiction you may get it automatically by domicile (over individuals only), tag/transient jurisdiction
(Pennoyer/Burnham), in rem (property your own w/in the state is involved in dispute), express consent (forum selection clauses-
Carnival), procedural consent (through waiver: Carnival), or implied consent (Hess).

If it is not automatic you may have general jurisdiction, which for individuals is the domicile test (us citizenship, place of
residence, intent to stay); for companies the general jurisdiction test is NOT the domicile test, but is if they have “continuous and
systematic contacts.” The range for this test is between Helicopteros (having done some business in the state, buying planes and
training pilots) and Perkins (having an actual wartime office in a state).

If there is no general personal jurisdiction then you check for specific jurisdiction; under the International Shoe/Burger King test
for minimum contacts, WWV/Asahi test for stream of commerce, Calder test for intentional torts, and Zippo test for Internet
cases.

Once you have proper personal jurisdiction in one court you can take it to another court to enforce it: “full faith and credit.” other
states must recognize/enforce your judgmt, assuming you properly had juris. You also must have had notice under Mullane.

GENERAL PERSONAL JURISDICTION Test:
    1) ―continuous and systematic contacts‖ (often company’s hq, does a lot of biz in state); tougher standard to meet (good proxies
       to use are does the company own/rent land in the state; have employees there.
    2) Individuals – domicile (OR can use company domicile standard form div juris - inc or princ place of biz )
    3) Companies: Rosenberg(def not- mere purchase)→Helicopteros (not quite enough)→Perkins (yes, wartime office). Range
       between Heli. and Perk. – look to ―reasonableness‖ criteria - interests on both sides, state int., efficiency, etc.

PERSONAL JURISDICTION - SPECIFIC Test:
  Traditional base of pj? (if so spot it and move on – at end) LONG ARM
  1) Traditional base of pj? (if so spot it and move on – at end)
  2) If so, does LONG ARM statute apply under FRCP 4k? 1st issue – statutory construction by state ct; Odds are that
        the long arm statute applies (try to make it apply, esp if you can make more than one section apply) , then you decide its
        constitutionality . . .

        *The state long arm statute only authorizes the exercise of jurisdiction to the reach of the Constitution. . . .

    3) Is the application of the long arm Constitutional?
         Dev’t of min contacts: Pennoyer → ―power theory‖ -- brooding omnipresence– law comes down from on high (common
        law/international law – not making law but finding law)– over time more of a legal realist approach, cars, due process clause all
        conspire to result in more and more exceptions to Pennoyer ––exceptions include citizens, consent, marriage, rules to mitigate
        harsh effects (notice to lender, time to contest) negligent debtor (Harris v. Balk), cars and implied consent (Hess), corporations
        and the fiction of presence →leads to the development of minimum contacts → International Shoe (ct could have decided this
        as just another exception to Pennoyer, but decide instead to set up a new test)

         In the regular case you use the Int’l Shoe test for minimum contacts and a reasonableness test of fair play and substantial
        justice (to ensure due process); no ―casual‖ or ―isolated‖ contacts under Shoe. It is important to remember that the claim must
        arise out of the minimum contact. McGee is the high water mark of INt’l Shoe, one contact is enough; reined in by Hanson v.
        Denkla (no FL juris over a DE trust) introduced the purposeful availment test for minimum contacts which asks if you have
        benefited form the state (a social contract argument). And the Burger King (Fl can assert juris over them) test introduced a two
        part purposeful availment and reasonableness test.

         BURGER KING TEST:
           o The test for purposeful availment is whether or not the party “purposefully availed himself” of the benefits of the
              state; based on a social contract theory. (Kulko is not pa don’t want to discourage reas. custody argumets; he’s not
              benefiting from CA; gen sense that commercial transactions slightly diff from family/personal law issues). Purposeful
                                                                                                                                2/14/2011
                 availment is a necessary but not sufficient condition, it creates a strong presumption in favor of jurisdiction but
                 must still also pass the reasonableness test.
             o   Is the forum reasonable (common sensical: what would ppl expect?): (Burger King – Brennan writes the opinion in
                 order to really broaden the min. contacts standard by setting up two prong test)

(EVEN IF NO P.A.; just in case, STILL DO REASONABLENESS TEST:
It does not need to be the best forum but it must be reasonable in light of 1) burden on the defendant (WWV, Asahi plurality) 2)
state interest in (its citizens and) adjudicating the dispute (McGee, Shaffer, Keeton, Asahi plurality) 3) the plaintiff’s interest in a
convenient forum and effective relief (McGee) 4) efficiency (Asahi majority) and 5) substantive state policies/social contract
(Kulko, BK, WWV) .

                 State interest: take advantage of state’s citizens; sovereignty – adjudicate matters w/in own borders; other states int
                 Efficiency: location of evidence and witnesses; states know their own law better.
                 Burden on π: π is master of the claim; interest in a convenient forum and effective relief
                 Burden on ∆: due process (timely notice & opp. to defend); reas. expectation (foreseeability concern – ordering
                 conduct); reas. forum considering who the ∆ is (Foreign comp.
                 Social contract theory: enjoy advantages of state;

       STREAM OF COMMERCE TEST – also do reas test.
           1) WWV –– really announces ―purposeful availment‖ test – new standard gives more protection to def, allows def to order
           his/her conduct, and ensures that states do not overreach. Distinguishable from Gray (valve made one place explodes in
           another – you can sue there - place of the injury that counts). b/c car has been plucked out of stream of commerce . . .
           WWV dissent (Brennan and Marshall) says if it is foreseeable tough luck for def cars move, therefore foreseeable that they
           would be in OK; social contract, strong state interest. Generally under WWV a merchant is responsible for a product he
           puts into the stream of commerce, all the way until it lands with the consumer. (Unlikely that a company’s contacts
           will be imputed to specific employees)

    AUDI ARGUMENT – in WWV - Audi is not arguing jurisdiction- why? Audi is actually selling cars in OK; they have dealerships
    there. So, the social contract arg comes into play; Audi is selling cars on a regular basis to OK, has been taking advantage of OK’s
    roads, commerce system etc. This leads to a bizarre conclusion: If Audi sells Bugs in NY; Golfs in OK; even if a Bug in OK
    crashes, Audi might be on the hook in OK. Unclear how far this argument extends, but tied up with social contract theory, so I
    would analyze it under that rubric. Basically a way of stretching/broadening the req that the claim must arise from the
    specific minimum contacts because of the social contract, and, to some degree, foreseeability of being haled into ct in any state
    where you do biz.


             2) “Intent to serve” - Asahi – Plurality tries to further limit min contacts by requiring an ―intent to serve‖ element in cases
             where there is a long chain of distribution; foreseeability is not enough b/c hard or impossible to limit where your products
             end up. O’Connor’s test includes: direct marketing, direct advertising, or designing goods for spec buyers in that state.
             (Maj agrees that it would offend notions of fair play and subs. justice).

              (Calls Gray into question – unclear if Asahi or WWV is good law)

             ASAHI split – whether the mere act of selling goods outside the forum state that will likely be imported in to the forum state
             suffices to support jurisdiction. 4 say ―intent to serve‖; ―mere awareness‖ that goods may be swept/or placement into the
             stream of commerce is not enough. Concurrence: just sending goods into stream of commerce at in substantial quantities
             constitutes p.a. whether or not original seller knows . . .rationale is that the maker both foresees and benefits whether it
             intended to serve or not.

***Don’t get tripped up by a ―foreseeability‖ argument: SC has chosen a narrower view of personal jurisdiction, focusing on the scope of
the activity of the seller, rather than the predictable area of use of the product by the buyer.**

**Distinguish between component maker; maker of a final product; importer, etc. . . .
                                                                                                                                      2/14/2011
        INTERNET TEST
              1) ZIPPO TEST - Millennium Music – an Asahi-like approach -- Zippo sliding scale test – 1) passive website – no juris
                   2) biz conducted with forum state over internet - usually juris. 3) if something in between you look to the level of
                   interactivity and the commercial nature of the exchange of info; some cts also require deliberate action.
        INTENTIONAL TORT TEST -- more relaxed standard, allows for the type of effects test that was called into question in
         WWV; need: 1) Intentional tort 2) Bulk of effects/harm in state 3) Directed your actions/aimed at state Calder v. Jones – Nat’l
         inquirer directed its act toward the state; purposeful availment not really the standard when it is an intentional tort – more about
         if you directed your act toward the state, where you knew it would have most of its effect. Keeton – sort of taking Calder to the
         extreme – can sue in NH since all other states’ stat of lims. have run out even though not a ton of NH Hustler readers. (unclear if
         tort over the phone is done in the state where it’s heard or said; two issues – where act was actually committed and whether it is
         the locat’n of the act or the injury that matters under long-arm stat. – Gray). Even one contact is fine for an intentional tort.


Other PJ ISSUES:
        Notice: Mullane – notice by publication – ―reasonably calculated to give actual notice‖; Notice – Mullane – notice by
         publication to unascertained persons is okay; but if you do know how to reach ppl, must do so by mail; okay not to reach all
         members of a class b/c those who are reached will promote group rights (very functional standard – aimed at efficiency)
        Opp to be heard - Opp. to be heard – most likely in a debtor/creditor situation – Fuentes v. Shevin line of cases . . . trying to
         breathe some due process into repossession of debtor’s property . . . due process is a balancing test
        Service of process - unlikely to see it on an exam - Basically just an analysis of if rule 4 was met or not – can’t trick ppl into
         jurisdiction, no fraudulent inducement . . .. quasi in rem sit’n – can’t serve if person is just appearing to litigate about jurisdiction.
        Default v. Show up: Have to show up to litigate it now (Bauxites); ―special app.‖; be careful not to get to the merits in st ct.
        ―Full faith and credit‖ enforceability –
        If fed ct is deciding fed claim, assumption is min contacts still applies to the state in which the dist ct sits – exceptions are
         nationwide serv of process for some things (like sec. case); w/in 100 mi of fed cthouse if rule 14 or 19 apply – bulge juris; if
         person is not subj to juris anywhere – long arm stat doesn’t auth juris and no juris in any other state.

         AUTOMATIC PERSONAL JURISDICTION BY:
               a. Territoriality - state can assert juris w/in its borders (Pennoyer, Burnham)
               b. Tag jurisdiction/transient jurisdiction - In personam – serve’em in the state -- jurisdiction over the person; Pennoyer
says so long as the person is served while being present in the state – (extreme airplane hypo); but no fraudulent coercion. Burnham
(PLURALITY) reasserts Pennoyer (personal service in state is enough); even when actions in the state are unrelated – transient
jurisdiction – tag jurisdiction is still ok. (Burnham: Dad goes to CA to see kids and is served – like Kulko) (big tradition/stare decisis
argument going on back and forth between plurality and dissenters) Burnham is faithful to pennoyer, but b/c pennoyer as r pushed aside
for so long and Burnham is a plurality, still not 100% clear. *NO TAG JURIS OVER COMPANIES; they are not necessarily in the state
just because employee is.
               c. In rem – State can adjudicate re: any piece of property w/in it’s boundaries . . . In rem - actual dispute is about
property; against the world (quiet title) - probably left alone by Shaffer b/c if there is actual property in dispute, you prob already have
min contacts.
               d. Quasi in rem – take a piece of property unrelated to claim, to get person into state – always unfairness, but was
tolerated as being consistent with Pennoyer notions of state sovereignty, then the cts had had enough – Shaffer said quasi in rem is just
like in personam – do min contacts analysis; quasi in rem is mortally wounded (unless weirdo sit where long arm does not go fullest
extent – then get in under quasi in rem thru min contacts test) Quasi in rem – what is used in Pennoyer (essentially a legal fiction – can
sue but only up to what the property is worth; allowed to make a special appearance just to dispute this w/o getting tagged for in personam
juris.) (and in Harris v. Balk – the debt is the property and the property follows the debtor) and found invalid in Shaffer (stockholder
suing corporate bigwigs – close question, ultimately ct says no purposeful availment). Need to apply minimum contacts.
               e. Domicile – For companies test is 1) place of incorporation OR 2) principal place of biz
               f. Agency – grabbing an agent is like grabbing an individual/company
               g. Consent –
express consent - jurisdiction clauses; **Forum-selection clauses (Carnival Cruises) – presumptively are ok, even in contracts of
adhesion – gives companies the ability to allocate their risk – but notif they seem to be trying to game the system – must be a reasonable
place that they pick (not the north pole) **Bauxites – once you submit to jurisdiction you bind yourself to litigating the question of
whether or not there is juris – either that or you try to argue the default judgmt later – tough choice.
implied consent (Hess) –
procedural consent (waiver) – if you don’t assert it as a defense.
               h. Corporate presence
                                                                                                                                2/14/2011


IV. WHO CAN BE ADDED? JOINDER OF PARTIES AND CLASS ACTIONS
JOINDER TEST: 1) Is joinder permitted by the rules? 2) Personal juris? 3) Subject matter juris? (4 – venue)
Traditionally joinder rules are organized so that the Π is master of the claim and mostly gets to decide who will be in the lawsuit.
Initially joinder is regulated by Rule 20; Rule 20 still discretionary though (not required because of jurisdictional problems and problems
with having people unable to decide whether to join as ∆’s or π’s.

RULE 17 – π must be ―Party in interest‖- Matters in subrogation cases, and with fictitious names, or with trustees.

RULE 20 – PERMISSIVE JOINDER – Allows π’s to join together or ∆’s to be added if 1) “transaction or occurrence” AND 2)
common question of law or fact. It is always discretionary and may be limited by other joinder rules. The range is from Kedra to
Insolia. Kedra allowed broad leeway for a conspiracy claim against police to join a number of defendants while Insolia found that
a matter which had already failed to be certified as a class action, could also not join partie sunder Rule 20 because they would
unnecessarily complicate the litigation. Courts are allowed to permit joinder and then later (like after discovery) split claims off.
Co-plaintiffs can join together even if they are arguing different claims under different theories for different remedies so long as
they meet the two part test.

T&O language – Rule 20 falls somewhere on the spectrum between Rule 15 (due process concerns) ndn Rule 13 (efficiency concerns). It
is worried about a little bit of both.

Policy – partly Efficiency, with a fear of Prejudice; prevent inconsistent judgments.


**RULES 18 and 13 allow parties ONCE PROPERLY IN A SUIT TO RAISE ADDITIONAL CLAIMS**
RULE 18 – ADDING CLAIMS - Broad (broadest of the basic joinder rules) federal standard. Alllowe dto add mostly whatever
related or unrelated claims you want once you have a party properly joined (claims may always be severed later). Will NOT be allowed if
JURISDICTION PROBLEMS (i.e unrelated state claims trying to add to fed claim). NO T&O TEST! Once a claim is properly
impleaded under Rule 14 you can add other claims.

*Note that state standard in some states in not so broad, but reqs a t&o test.

Policy: EFFICIENCY, already have parties there, might as well let them work out all of their problems.

RULE 13 – COUNTERCLAIMS , CROSS-CLAIMS
13 a Compulsory - substantially the same evidence; logical relationship ―the same occurrence or transaction‖ or ―series‖ of t&o’s; if
compulsory they cannot litigate it later, the must bring it now- intention is to streamline the judicial process. YOU DO NOT have to
have pers. jurisdiction for compulsory counterclaims – the π by choosing the forum automatically submits to personal jurisdiction
for counterclaims arising out of the same t&O.
                         Trick for comp. counterclaims is that you can get them in under supp juris usually even if they could not be
                            indep asserted in fed ct b/c of nondiverse ptys or low amt in controversy – b/c they are common nucleus of
                            operative fact . . .
                         Comp. counterclaims are one area where the π is prevented from entirely being the master of the suit by
                            allowed by longstanding common law tradition.
13b Permissive -does not need to be brought with other suit – addressing a different issue. Wigglesworth: if a claim is found to be
permissive then if no fed jurisdiction, it cannot be brought with other claim; if claim is found to be compulsory than even if no fed
jurisdiction it can be brought in fed ct with original claim; look to see if you can get independent personal and sm jurisdiction.

Reason for counterclaims: efficiency and judicial economy; fairness to ∆ permissive claims. compulsory – efficiency/judicial economy –
once parties are in court, same evidence, allow parties to litigate it fully, one trial. Value of consistent outcomes; permissive – Economy –
once parties are in court, might as well resolve all conflicts b/w them, but Due Process – don’t want to force D to litigate where he doesn’t
want to/when he’s not ready.

COMPULSORY COUNTERCLAIMS barred by res judicate b/c of FRCP; BUT MAY not be under state law, if state have not
adopted FRCP 13 yet.

RULE 13g – CROSS-CLAIMS
                                                                                                                                 2/14/2011
Against co-defs or co-pl’s. T&O or related T&O’s. NEVER compulsory – always permissive. Can get it in under supp. juris. even if
no diversity or sig. amt in controversy; 1) Same T&O 2) PJ Jurisdiction; independently 3) SM Jurisdiction, prob supplemental
RULE 14 – THIRD PARY IMPLEADER – only for ∆’s; def uses this to get in another party who may be liable to def for claims
against it. The impleaded party MUST BE LIABLE TO ORIGINAL DEF; ―it wasn’t me‖ defense is no good here, you cannot use
interpleader to complete substitute liability, must be an if ―i’m on the hook, you’re on the hook‖ kind of situation. (Clark – cannot
implead someone who is liable only to the plaintiff) Impleader claim is treated like an original suit for pleading, service and other
purposes – 10 days w/in answering the complaint; automatic impleader (but always w/in cts discretion)

14a – once ∆ brings in the 3rd pty then the π is allowed to amend complaint and file directly against 3 rd pty ∆ so long as new claim
arises form same T&O (need to check Rule 15c if the stat of lims has run). Also need to check personal jurisdiction (if ∆ had pj then π
has pj) AND sm juris: §1367 does not forbid supplemental jurisdiction over an impleaded party when the ∆ brings her in, only when the π
then alleges a claim directly against the impleaded party (which does not have indep. juris). (OWENS) (Policy behind §1367 is that π,
the chooser of the fed forum and the master of his own claim should not be allowed to circumvent diversity reqs through joinder)

Later claims:
Impleaded party may assert a claim against the originating party (π) – but must be the same t&o.
Impleaded parties not allowed to bring in new def’s on their counter or cross-claims.
Assuming indep subj matter juris; Π can assert a cliam against the impleaded party – but MUST be a claim related to same T&O.
§1367 – precludes claims AND counterclaims by nondiverse π’s against impleaded ∆’s

*Policy: NOT MANDATORY/CT has discretion – will not allow it if: it would defeat the purpose of the rule, undue delay of def in
seeking it, complicate the main issues in the main action, cause prejudice or promote inefficiency; usu cts will want to do this b/c of
judicial economy/efficiency reasons but arguments against could be that it will unnecessarily complicate the litigation (Insolia); or cause
unnecessary delay – possible way to remedy this might be to split up the actions and have them go separately. PRO-RULE 14 –
efficiency of hearing the related claims together; avoidance of repeated suits or inconsistent adjudication.

RULE 19 – MANDATORY JOINDER –for ∆’s and π’s (limited fund sit’n);restricted if div juris under §1367. Two part test:
      19(a) Who is necessary? (?’s usu arise b/c you can’t get pers, juris, sm juris, or venue prob) Test (Janney):
          o Effect on π
          o Effect on ∆
          o Effect on 3rd pty left out
          o Essentially the ? is: will one of the ptys in litigation not get relief OR will the left out pty be unduly prejudiced?
      19(b) Who is indispensable? Test:
          o Balancing test of interests on both sides; who will be prejudiced, is there nay way for π to get a partial or alt. remedy;
             tendency of courts is to try hard to crafts some type of remedy and 19b gives them broad discretion.

Preclusive effect: outside parties may be harmed by the preclusive effect of the judgment; ∆ might face the risk of double, multiple, or
inconsistent awards w/o joinder.

In some cases rule 19 and rule 22 end up being functionally the same – but interpleader just says that if you want the $$ you have to come
here and get it, not that you are indispensable – Rule 22 just conditions recovery.

Policy: 1) Fairness to D – haled into court, indemnification allowed 2) Judicial economy – try indemnity in same suit while all parties
are present 3) Efficiency – common evidence 4)Avoids inconsistent judgments 5) Gives D incentive to bring out all evidence; give
relief to π

RULE 22 – INTERPLEADER - for π to use to join defs (if def wants to join he can counter or cross claim) Used when conflicting
claims to same property or fund (limited source of money – reasonably expect it to be exhausted – ins. payment or asb litigation, all
companies are going to go bankrupt). Test:
     Tashire says used only to limits of state – tail can’t wag the dog – can say here’s my money whoever wants it has to come get it
         here, but can’t require the whole matter to be litigated there; not allowed to sweep a bunch of lawsuits out of the courts in which
         they belong.
     Like the opposite/inverse of class action; way for ∆ to make sure that those who are liable to him will be bound. More efficient.
     Under §1335 Ct may auth interpleader when
              o Two or more parties are of diverse cit.and are making claims or may make claims on money and/or property of the ∆
              o The moving party pays the due amount to the court (sort of give up your right to the $$)
     Rule v. statutory interpleader (DIFFERENT, lower standards b/c of statutory) §1335 (Statutory interpleader seems to only be
         for diversity ; whereas rule 22 is for fed ? interpleader???)
                     Complete div----minimal div
                     Full amount in controversy -- $500
                     Proper venue - where any ∆ resides
                                                                                                                                  2/14/2011
                    Can’t enjoin – can enjoin outside litigation (force ppl to go to one place to litigate)

        Don’t have to worry about §1367 problems – usu lim fund (not like Rule 19 which goes out and grabs ppl, but more like saying
         if you want to sue me your have to sue me here. . . ) (Ed McMahon ex)
        Sort of functions like a declaratory judgment??? The person holding the stake does not have to wait for someone to sue but can
         go ahead and institute a civil action of interpleader if someone "may claim" to be entitled to the fund.

Policy: 1) Efficiency – bring all parties in the single action 2) Avoid inconsistent judgments, multiple liability3) Avoid ―race to the pot‖
 limited fund or property

RULE 24 – INTERVENTION - for ∆’s and π’s – rights might be indirectly affect’d; feel rights are not being rep’d. Two types:
1) Matter of right – statute or necessary interest in property or transaction
        3 elements:
             o Interest – can’t be an interest that is really diffuse – one day I might . . .
             o Risk
             o Inadequate protection – the party involved isn’t going to represent your interest – this is the hardest hurdle to knock out
2) Permissive (conditional statutory right or common question of law or fact) – common ? of law or fact – much easier to intervene,
but much les useful b/c judge can restrict your intervention (Nat’l Resources Defense Council)

*Cts have BROAD DISCRETION to allow, deny, or limit; esp if they think undue delay or prejudice.


CLASS ACTIONS/COMPLEX LITIGATION ( RULE 23)
     GEN. TEST(Rule 23) : a)Adequacy of rep. b) Certification/Type c) Notice; 23a:
          o Numerosity – so many ppl that joinder is impractical (undetermined # - prisoners); usu 40-50+ otherwise do it sep.
          o Commonality – common question of law or fact (for 23b3 must be predominant issue); if common ? is liability you
               go up until damages and then split off; must be worth doing it as a class; a truly common issue
          o Typicality – commonality inquiry looking to named plaintiffs – named pls have to have claim in common with class
          o Adequate reprsnt’n – named π will fight for fair outcome for all (not crazy) & lawyers w/skill &experience (ct acting
               as a fiduciary for absent class members) - look for clues in question like “Mid-sized or small firm”
    Three types 23b:
          o 23b1 –Prejudice from having sep actions (inconsistent adjudication): Limited fund; taxpayer suits. Potentially
               harmfull effects to parties absent the use of a class action. Sep actns create risk of:
                     Inconsistent adjudications establishing incompatible standards of conduct for the ∆. OR
                     Impairment of interests: adjudications to individuals members that would substantially harm the interest of
                         members not party to the adjudications. (limited funds)
          o 23b2 – Equitable/injunctive relief: one pers sues to change whole system (civ rts cases); affects everyone anyway.
               Two parts - ∆’s actions applicable to whole class & Injunctive relief will affect all; often break suit up at damages pt.
          o 23b3 – Money suits: everybody has a claim against a company and there are a lot of them; efficiency concerns;
               common question must dominate. Class action is the superior vehicle. Catch all when common questions of law or
               fact PREDOMINATE. NOTICE and OPT OUT Req’d. (reas. identifiable members must be given the best notice
               practicable) Super Mullane
          o NOTICE & OPT/OUT – not req’d for b1 and b2:notice too exp. and opt outers could sue for smthng diff & wreck inj;
          o Personal jurisdiction? 23b3 – Yes, by not opting out you are implicitly consenting (like Mullane – juris by
               necessity ) But the ? is open for 23b1 and 23b2 ?’s; prob yes, but not yet tested by SC.
          o Diversity juris: Comp. is that just named defs must be diverse from named π’s; but cannot aggregate $ on sep claims.
          o Damages: Many suits, esp. 23b2 split off that this point after liability has been decided; once you get to damages it is no
               longer a 23b2 suit – hybrid, becomes 23b3 as soon as you get to damages .
HYBRID class actions?? – we didn’t really cove rthsi much.

        Hansberry (racially restrictive cov.) - Ct sez π’s not bound by prior judgmt b/c in last case the white owners were a class
         against one black renter; also int’s in 1st case aren’t the same as here; DP issue.
        Holland v. Steele (inmates need better atty rep)(23b2) – Ct sez yes commonality/typicality (ok to put detainees and sentences
         together) and numerosity (don’t know how many ppl will be in jail in the future - transient class).
        Rhone Polanc (HIV π’s claim no infection if safeguards for Hep B in place and quicker response to AIDS threat) 23b3(money
         suit) lower ct wants to pull cases together at least for discovery purposes; App ct sez no – worried about irrep. harm to def;
         pressure to settle b/c so much is riding on this; Esperanto instructns to jury; Want more cts to weigh in – one trial is a big
         gamble; Dissent – nothing in rule 23 that sez if it is a really hard ? you need to give it to more juries.
        Posner’s law & ec. arg. – doesn’t really work: b/c if lg # of cases and if you lose one you lose all; def will spend a ton of
         money on every one (const. fearing c.e.); if you are π you don’t have as much riding on each indiv case, so don’t spend as much.
                                                                                                                                             2/14/2011
        Carving at the joint analysis - go up to causation and then everyone splits off – to see if it hurts you in particular – but problem
         is that causation actually has an impact on how much you can recover . . .
        NOTICE: Eisen (odd lot traders bogged down in notice dispute for 8 yrs): only give ppl who traded a certain amt notice; Ct
         spanks them: will only let indiv. rights be compromised so far – π MUST give notice to everyone they can and CANNOT make
         ∆ pay (gets to the merits too soon); Rule 23 is NOT discretionary.
        Larger themes:
              o Why have class actions? Efficiency; Resources (lit. is expen. for indivs.); Limited fund; Everyone bound (good for.
                   Co’s) ; Encourages settlement; Moral authority (rep. an entire group); Injunctive relief (will have an effect on everyone
                   anyway); Consistency (don’t want defs subj to inconsistent rules)
              o Problems with class actions? Remedy stage gets ugly (ppl split off but not always separate rep.); 7th Amend – pppl
                   should get their day in ct; ppl may not vene know a case is going one but will be bound.

Compromises/Policy:


Policy: Due process (individual rights to appear in court) vs. bigger concerns, some overriding need.
                                   Judicial economy – courts can’t take every picayune case
                                   P’s interests – each individual P does not have resources to litigate
                                   Limited fund – don’t want first come first serve
                                   Injunctive relief – affects everyone, so should include everyone
                                   D’s interest – sometimes want consistent ruling
Compromises:
- Opt/in vs. opt/out – Ct tries to give notice, but then you need to take action to opt yourself out of the case ct allows this as a
compromise to desire for efficiency.
- Ordering conduct – ppl need to be bound by a rule of law; cannot allow exceptions
- Fairness (7th amend, everyone gets represented) vEfficinecy (too many plaintiffs, elect a representative
- Pub policy v. Fairnesss (Due process) - cts willing to forgo some dp if there is an overriding need.
- Largeness v. Chance to be heard: usu chance after settlement for nonnamed π’s to voice their concerns; opt-out allowed as well in 23b3
- One jury v. Many juries: Rhone sez bad to have only one; but maybe not so bad – allows π’s to pool resources
- Notice not discretionary – means that some cases might not be brought – but can only bend dp so far
- Microcosm of all of the problems of contemporary litigation: aggregation of claims, problems of jurisdiction, problems of fairness; prob
of whether the system really can afford to give effective relief to everyone
- Only way for small claims/injuries to be litigated – but is it worth it?
- Args: efficiency, distributive (don’t force ppl to sue separately), preclusive effects,
- Personal jurisdiction issues with 23b1 and 23b2
- Require individual notice vs. trust in Adequacy of representation – at the very least you need to know your interests are being
represented, so adequacy is not sufficient.

V. PLEADING – HOW TO FILE, AMEND, AND DEFEND A SUIT
STATING YOUR CLAIM – Complaint
In pleading your complaint you must do three things according to Rule 8a. You must state 1) jurisdiction 2) a short, plain
statement of the claim and 3) a remedy or remedies. The standard for (2), stating your claim, is a range form a pure notice
pleading which developed in response to a traditional system of code pleading and the judge Posner standard. Under the notice
pleading (established in Conley) you just need to give notice of what your claim is. Under Judge Posner’s standard you need to
set out facts in support of each of your claims. Generally the inclination is to plead as skeletal a complaint as you can while
meeting the Posner standard to be on the safe side although some (Eastman) have argued that there should be thicker pleading in
complaints. Rule 12(e) the motion for a more definite statement is met if Rule 8 is met. The Court will also generally construe
pleadings liberally, or allow amendment fo pleadinsg since it does not want to dismiss the case before it even gets started (top of
the funnel). RULE 9 doe shave a HEIGHTENED pleading standard for fraud. The π does not have to plead affirmative defenses
and is allowed to plead conflicting claims (FRCP 8e)

        Code pleading (Gillespie decided after conley?)- u lose by pleading the wrong thing; only can chose one claim – needed to give
         notice, plead evidence and identify legal issue.
        Rule 8 - 1) jurisdiction 2) short, plain statement of the claim 3) remedy
        Test for #2: Conley (notice pleading)  Posner Standard (facts on each material claim)
        Conley standard: 1) Jurisdiction 2) Short, plain statement of claim 3) Prayer for relief 4) Don’t need all, some, or any facts 5)
         Lets you get to the merits
        Posner standard: 1)Must set out sufficient facts to outline cause of action 2) Satisfy every material point to satisfy a legal theory of recovery
                                                                                                                                                      2/14/2011
        PRO Notice Pleading: 1) Prevents P from pleading himself out of court (Mitchell) 2) Don’t have to tip your hand (Board of
         Harbor Comm.) 3) Not penalized for not knowing all facts 4) Fewer expenditures – more efficient
        PRO POSNER STANDARD: 1) More information for courts and D 2) Judicial economy – weeds out frivolous claims 3)
         Eastman – benefits of thick pleading
        Cts will generally construe pleadings liberally – don’t want to throw ppl out of court at the top of the funnel . . .
        Rule 12(e) –definite statement. If you have satisfied 8 (a) then you have satisfied 12 (e) (Bd. Of Harbor Comm.)
        Rule 12(b)(6) – 1) assume all facts & 2) make all inferences, in favor of π.
        12b6 motion is essentially saying that 8a wasn’t met?? - 12B6 judgement as a matte of law - jdg on law, all facts in pleading
         assumed true
        Specificity - Mitchell (truckdriver)―premises‖ (plead yourself out of court)/Eastman ―thick pleadings‖ article vs. skeletal
         complaint – convention is to just meet Posner standard to be on the safe side.
        Exceptions/Caveats:
             o Rule 9 – heightened pleading standard for fraud (Ross – pharm co did not disclose; securities case) but only fraud -
                  (Cash – CERCLA, ct makes the ―short leaps‖ argument) court says in Leatherman the rule is what it says so for all
                  other (nonfraud) topics use Rule 8 “Expressio unius est exclusio alterius” –Once you say something specific about an
                  issue, we assume their failure to say things about other specifics WAS INTENTIONAL.
             o Affirmative Defenses - Rule 8(c) PL is not required to plead aff defenses; sov. immunity def –ct can order a reply or
                  hold a special hearing on this issue
                           It is an affirmative defense if: 1) stat says – unless def proves 2) if def has sole possession of the information/fairness issue –
                             don’t want defs to be able to game the system 4) probability – aff def for stuff that’s rare – acts of god – won’t req pl to sya there
                             wasn’t one
              o    Conflicting Claims - Rule 8(e)2 – OK to plead conflicting claims (McCormick, sue tavern and other driver)

AMENDING YOUR CLAIM – Rule 15
Under Rule 15 you may amend: 1) anytime before a responsive pleading is served (12 b 6 motion is not a responsive pleading) or
w/in 20 days 2) if other side agrees 3) otherwise you have to get leave of the court – what is that standard “ freely given when
justice so requires.” If you are trying to amend after evidence submitted at trial you must follow the 15b standard. If you are
adding claims or defendants and the SOL has run you must use the 15c test.

        David v. Crompton & Knowles - Better to deny all then to claim ignorance
        David v. C&K revisited – should they be allowed to amend – No, there was undue prejudice to def

15a standard:
            o      Automatic if amended before a responsive pleading is filed, or if no responsive pleading, within 20 days
            o      By leave of opposing party
            o      By leave of court: test: “freely given when justice so requires”; generous standard rarely denied

15b standard (amendment to conform with evidence submitted at trial):
            o Automatic if opposing party consents, and consent is presumed if the opposing party fails to object when the
                evidence is introduced at trial
            o If opposing party object, leave given ―freely when the presentation fo the merits of the action will be subserved‖ and
                the opposing party fails to prove prejudice. Continuance may be granted to avoid prejudice. Again generous standard
                though slightly less forgiving in practice than 15(a).
            o Damned if you do, damned if you don’t. If P puts in evidence and D lets it go by, effectively amends complaint. But if
                D does object, then judge can move to amend anyway.

First make sure that claim would have been allowed at time complt was filed . . .
15c must relate back IF your amendment happens after stat of limitations has run . . . (Swartz v. Gold Dust)
Diff between test used to add a new def, and the test used to add a new def with a new claim. 15c2 versus 15c3
TEST: i. conduct, transaction and occurrence ii. def must have received notice w/in limitations period iii. new def must know
that but for the mistake it would have been brought against him iv. no undue prejudice (it’s a rare case that meets all of these)

15d – supplemental pleadings ―upon motion, upon reasonable notice and upon such terms a are just, permit the party to serve a
supplemental pleading, setting forth transactions or occurrences and events which have happened since the date of the pleading sought to
be supplemented. Permission may be granted though the original pleading is defective in its statement of a claim for relief or defense.‖

12c motion filed for judgment on pleading after all pleadings have been filed.
                                                                                                                                2/14/2011
SANCTIONS: RULE 11
        ARE DISCRETIONARY; What is necessary to ―deter repetition of the conduct‖ not menat to punish; NO MONETARY
         SANCTIONS against CLIENT if about law (#2); CAN be initiated by either side (the safe habor rule) or COURT; CAN be
         monetary or nonmonetary; Law firms shall be held jointly responsible; Applies to everything but discovery (inapplicable to
         discovery stuff: Do not apply to ―disclosures and discovery requests, responses, objections, and motions that are subject to the
         provisions of rules 26 through 37.‖)
    

IN FRCP: sanctions if filings submitted for :
    1) improper purpose (harass, cause unnecessary delay, needless litigation)
    2) claims, defenses, and legal contentions are warranted by existing law; legal claims for new/modification/reversal of law must be
       nonfrivolous
    3) allegations and other factual contentions have evidentiary support; or will after reasonable opp for discovery and further invstgtn
    4) denials of factual contentions are so warranted by evidence or are based on reas. based on lack of information and belief.

Basically, you must do an adequate investigation in to the law and the facts; ―reasonable inquiry under the circumstances‖ (Zuk)

        History: prior to 1983, though there were a lot of abuses, so put in a bunch of stuff to toughen up the rule; then realized that
         lawyers took advantage of this to blast the other side – a disaster –courts constantly fighting about rule 11; so in 1993 they
         reformed the rule again.
        Differences between 1993 and 1983
              o Sanctions are no longer mandatory (even if violation found, at cts discretion)
              o ―Safe Harbor‖ provision added – 21 day strategy - withdraw before sanctioned (voluntary dismissal)
              o Sanctions no longer punitive; rarely given to other side – goal is deterrence, not to punish, but deter conduct going
                  forward.
              o 1983 - lawyers and parties; 1993 can sanction firms explicitly
              o Old standard: Factual allegation ―well-grounded in facts‖ 1993 stand: evidentiary support, reasonable to think you will
                  have it later on ―information and belief‖
              o 1983 – ―good faith‖ argument versus 1993 objective standard ends empty head good heart defense, doesn’t matter how
                  good of a soul you are – if there is no reasonable way to argue your side, you will get sanctioned.
              o Zuk case (didn’t discuss in class) - Zuk sued for copyright infringement – institute was renting out films that were
                  Zuks (transcripts of which had been copyrighted in his book) and after being fired he wanted them back. Motion to
                  dismiss was granted to def’s who then filed for sanctions under rule 11 (their failure to make a reasonably adequate
                  inquiry into the facts before filing suit) – sanctions were granted and pl’s appealed. End result?

DEFENDING AGAINST A CLAIM
    Test for def’s reply - ―fairly meet the substance of the averment‖ – Crompton & Knowles- be careful how you answer
     12B DEFENSES: 1) sm juris. 2) pers. juris. 3) impr. venue 4) insuff. of proc. 5) insuff of serv of proc. 6) failure to state a claim
        7) failure to join a pty under rule 19
     Timing: CAN bring favored defense 1 (jurisdiction) ANY time. MUST bring unfavored defenses: 2 (juris pers.), 3 (venue) , 4
        (process) , 5 (service) before your reply or in your first pleading, otherwise you waive them. Mildly favored defenses 6(failure to
        state a claim) and 7(join a party) must bring EITHER with the beginning ones OR up until trial, but if you wait until after the
        others then you do not get a response.
     FOR 12B6 assume factual allegations of π to be true.
     If you didn’t know that there was a problem until later, that is not okay – it must be because of a nondiscoverable piece of
        information that you didn’t file your 12b’s properly. If an sc decision came after you filed something.
     Other 12 motions - 12e (more definite statement), 12f (motion to strike – insufficient defense, redundant, immaterial,
        impertinent, scandalous – is discretionary) also must be made along with 4 unfavored defs (actually no SC precedent on this so
        you could make the argument the other way, but likely that they are lost along with the first four.) 12c gets done after you have
        filed the reply - you use it to bring the two mildly favored claims later.
     General strategy: Always file ALL rule 12 defenses together (allowed to consolidate under 12g and must not waive under 12h) –
        either file in a rule 12 motion (gives you the special privilege of litigating before answering the complaint), or if you don’t care
        about that you can just lump them in your pleading. If you don’t follow that rule (with your 1st rule 12 motion OR your first
        pleading), you lose all of the original four, you have waived them. For mildly favored, do not need to appear in your answer or
        pleading, but have to raise them before trial, You don’t lose them forever, you just lose a chance to resolve them before you give
        your answer – lose a chance to get a first whack at them. You can still add them in later, but the judge is not going to give you
        any favors, you will have to answer first. Can still litigate them before trial.
                                                                                                                                  2/14/2011
        Themes behind 12B motions – smj is always allowed because eit is critical to be in the right court. the others you want to get out
         of the way quickly, and the two midly favored you want to encourage them to be brought but understand they might need more
         time to forumluate (need some discovery)
        FOR 12B6 assume factual allegations of π to be true; judgment as a matter of law – did they state a claim? Conley –
         Posner standard.
        AFFIRMATIVE DEFENSES: 1) ―def shall prove‖ in stat lang 2) Rule 8 c gives a list. 3) Sovereign immunity – special priv
         of the state to say that b/c it is sovereign it gets out of liability AND litigation – moves toward ruel 12 – must be plead by
         defense, cts go out of their way to let defs plead this early: have a 12c hearing, require a reply, early motion for sj, 4)
         Sometimes ct will make something a def aff even if none of these are there on a policy of fairness – sometimes make something
         the def’s responsibility b/c something is very rare (―act of god‖); if it’s there def can do it


V. PRETRIAL JUDGMENT – SUMMARY JUDG’T, VOLUNTARY DISMIS’L, DEFAULT

VOLUNTARY DISMISSAL– Rule 41- dismiss your compl.: 1) before ∆’s answer or sj mot is filed (or smtmes not allowed even
before this if merits reached already – debate about this) 2) Parties stipulate 3) Ct decides to allow it – will weigh harm to def – maybe
impose conditions; is an adjudication on the merits unless – juris, venue, improper joinder (thought this standard is mushier – see res
judicata section)

PREJUDICE – w/o prejudice – not a judt. of ct on merits– can refile; w/prejudice - you can’t litigate it again.

DEFAULT JUDGMENT – if def does not respond to complt (Shepard) Rule 55 b 1- order entered by clerk if : 1) Sum certain 2)
Def is competent (no infants) 3) Def failed to appear. Rule 55 b2 - judgment entered by judge. Rule 55 c rescinded if: 1) prejudice to pl’s
case 2) prejudice to def (does def have a meritorious defense?) 3) culpability (was it willful delay, stupid) – balancing test. If it passes 55
c, passes 60b, even though 60b usu. very high, in this case no proceedings so not hard to set aside judgmt; Even if a defaulot judgment is
entered you may still need to replicate a normal trial to determine damages.

SUMMARY JUDGMENT –(filtration device) - vs jud as matt of law – see p 406
Basic idea – can you show a conflict in each element of the claim / regardless of brings sj motion . . .

Rule 56 Test is:
    1) When evidence is viewed in favor of the nonmovant
    2) Must be a triable issue of material fact

**Movant’s burden to show evidence depends on who moves; question is who has burden of production (produce something, show
some proof) and burden of persuasion (burden to prove something, produce substantial/proof in your favor).

IF π moves same as at trial, they have both burdens of proof.

IF ∆ moves standard is between ―show me‖ motion and slightly more demanding White standard which says that both sides must do
something to show that a reasonable jury could find for them. Justice White’s standard in Celotex (man dies of asb) says that the
defendant must show some evidence, but not all. Doesn’t have to tip his hand, but need to do more than a ―show me‖ motion. Maj says:
―Show me‖ motion, all ∆ needs to do is file the motion; up to π to prove that there is evidence for their claim. ∆ burden of production
(must do something; look for evidence); π has burden of persuasion, must counter def’s claim.

(Brennan tries to change the standard in his dissent – says you need to look through the factual record. Celo Tex – (extreme #2) – Like at
trial – (Celo- π is wife of man who dies of asbestos. Suing employer for asb exposure.) White moves a bit closer to middle ground –
both sides must do something to show that a reasonable jury would find for them.

Ct no longer goes so far as the earlier - Atickes standard (extreme #1) – Like a normal motion - ∆ must prove a negative in order to
succeed; must produce evidence and show that no reasonable jury could possibly go the other way. (Atickes – conspiracy case – Af-Ams
in store with white teacher)

***Non movant’s burden - what evidence must nonmovant produce to avoid sj motion being granted?

         If NM has burden of proof at trial: must respond with sufficient evidence that a reasonable finder of fact could find in its
         favor; meet burden of prodxn
                                                                                                                                2/14/2011
         IF NM does NOT have burden of proof at trial: only way movant may obtain sj is by shifting the burden of production – by
         providing sufficient evidence that a reasonable fact finder would have to find for the movant.
             o Arnstein v. Porter – Cole Porter songs that sound like π’s songs – but no other evidence of when CP would have stolen
                 them from Arn. – deny sj motion. ―truth is sometimes stranger than fiction‖; π’s credibility is a question for the jury.
             o Dyer v. McDowell – Libel and slander claim, the only evidence are the witnesses/defs themselves who deny saying
                 anything. The attny did not avail himself of the chance to depose the witnesses; if witnesses had changed their story in
                 the depositions from their affidavits at leats then he could poke some holes. Ct says demeanor evidence is not enough.

Disbelief Evidence – to allow acse to get to trial based on the how that jury will disbelieve the other side’s testimony; who should be
allowed to rely?
              o If only π then not too many sj motions will ever be granted. (counterarg – maybe sj should only be granted where there
                 is documentary evidence) (Dyer – P should at least depose witnesses, he has the burden of proof)
              o If only ∆ then pl gets the benefit of seeing ∆’s evidence before trial b/c pl still has bruden of proof if sj mot is denied.
              o If both then you get a he said/she said kind of a situation, stalemate with no real proof. (Arnstein – ―slightest doubt test
                 is too easy – you’ll never have sj then!)
              o If neither then you may be taking away evidence that could potentially be useful (A Few Good Men scenario)

Rule: Cts have not decided – general rule is that defs are more likely than pl’s to get to rely on disbelief evidence however a lot of it
depends on context. Point is you need to use the facts well, and then need to use the broader views of the civil process – do we want sj
more or less often??


    3) BURDEN SHIFTING - The McDonnell Douglas minuet; a lesson in burden-shifting
     McD.-Burdine paradigm:
           o π’s shows prima facie case – (generally PF case means direct evidence on each part of claim (Posner standard), but in
                Burdine-type/Title VII cases you don’t have to, critical diff is that you don’t need to show causation, just need to show
                these factors:) 1) Minority 2) Applied/qualified for job 3) Didn’t get it 4) Majority member hired
           o ∆ must offer nondiscriminatory reason
           o Π must show that that reason is pretextual
     St. Mary’s Honor Center v. Hicks handout) – Hicks filed for age discrimination – argument as to whether age discrim or poor
       performance was the reason for his firing.
           o If reason given IS shown to be pretextual/not true, then what? Debate between Scalia (Maj.) and Souter (Dissent):
           o Scalia - π still has to show that discrimination was present – may have fired for some other reason. Scalia’s args Must
                keep the burden where it belongs; on the π. Employers may not know the reaon why someone was hired/fired – they
                don’t always have this knowledge There may be other reasons; although juts showing the Burdine scheme can also be
                enough to convict. Burdine scheme based on procedural presumption, just to force both sides to get some evdience out.
           o Souter – if you can show that the def’s defense is not true, then is discrim – π automatically wins. Souter’s args: Juries
                cannot be trusted (go trolling through the evidence and come up with all kinds of alternative reasons) Employers should
                know what is going on in their workplaces. Don’t want to create an incentive for bad biz parctices (Kozalowski) The π
                is in an unequal position b/c def has all of the info, if they give a wrong reason, what else can the π argue? What’s the
                point of Burdine if it does not lead to a directed verdict in the end? Burdine scheme baseed on substantive/evidentiary
                presumption – get out info, and decide if there is discrim. Res ipsa loquitor – let the thing speak for itself. Cutting edge
                Title VII stuff now says that Souter is right – lots of psych stuff about implicit bias. Your mind needs ways to connect
                the word – so you make categories, organize the world in that way. Implicit Association Test. Counterarg – snap
                decisions are made by that – but if you slow your decision-making process down will that weed out the implicit bias.
     Reeves v. Sanderson Plumbing Products, Inc.(handout) – Answers the question left by Hicks. Souter seemed to suggest you
       needed ―pretext plus‖, but SC rules that you don’t, can send it to the jury as it, no need to prove that it couldn’t be any other
       reason at all; no need to provide smoking gun evidence.
    4) Three fact sit’ns in which sj likely to be granted: π has no legal basis for claim (―dirty look‖ tort); all the evid. goes the same
       way; ∆ has an iron-clad defense.
    5) Four sitn’s commonly where judges might exercise discretion and deny the motion (better safe than sorry): one side has powerful
       depos, but something seems fishy; issues of credibility- lots of evid, but not documentary; unlikely to grant it in favor of pty with
       burd. of persuas’n at trial (jury is free to disbelieve but judge is not); gap in the material presented.
                                                                                                                                     2/14/2011
VI. SETTLEMENT/ATTY COSTS/REMEDIES
SETTLEMENT – 68 is when DEF makes an offer to π.
   Settlement is to be encouraged but not forced by the judge (Rule 16a, Rule 16f) (Kothe v. Smith)
        Rule 68 – Marek v. Chesney – (3 police officers who shot and killed π’s son when responding to a domestic violence call.) A
         settlement offer was made and refused and the π won for less in final case. Burden shifting civicl rights statute so the question
         becomes what costs are. Burger sez the term costs varies with the underlying statutory text. Compares costs to whatever the
         statute says; want to encourage settlement. Dissent (Brennan) argues that this is a perversion of reading the FRCP - supposed to
         make things the same. Substance of statute shouldn’t change the rules. Can’t have variation in the rules based on the substantive
         claim

Basic problem with interpreting Rule 68 this way is that when you have a fee-shifting situation, it takes something intended to protect π’s
and actually gives a weapon to defs; winning plaintiifs no longer allowed to recover their costs or their attorney fees if they rejected a
better offer.

Next logical step for defs was to ask for their attny fees and costs when the π recovered less than an offer. But cts refuse to go this far
– just say that def can recover costs, not fees.

Exception to the rule – if pl loses (b/c this would create an incentive for def to just make an offer of $1.05 on the first day of litigation,
then they could recover costs up until the end); cts create a legal fiction and say that then there is no judgment; 68 just doesn’t apply.

Ends up being better for plaintiff to lose outright rather than obtain nominal damages though b/c if pl recovers nothing no rule 68, if pl
wins but less then offer obligated to pay other sides’ costs.

Under the American rule, the losing party is obligated to pay the winning party’s court costs, but not attorney fees (FRCP 54). Under
civil rights fee shifting statutes, the defendant is obligated to pay the π’s attorney fees (and costs) if the π wins; if the plaintiff loses,
they are required to pay the defendant’s attorney fees only is the suit was frivolous or vexatious.

                                                        Normal American Rule
Who wins                   P’s court costs         P’s attorney’s fees   D’s court costs                     D’s attorney’s fees
Plaintiff                  D (FRCP 54)             P                     D                                   D
Defendant                  P (FRCP 54)             P                     P                                   D
                                 Civil rights fee-shifting statute
Who wins                   P’s court costs         P’s attorney’s fees   D’s court costs                     D’s attorney’s fees
Plaintiff                  D                       D                     D                                   D
Defendant                  P                       P                     Sometimes P                         D unless frivolous or
                                                                                                             vexatious

**If D makes offer and P rejects, enter world of Rule 68**
                              Rule 68, normal case
Who wins                P’s post-offer costs     P’s post-offer fees    D’s post-offer costs    D’s post-offer fees
P wins less than offer P (usually could          P (“costs” does not    P                       D (“costs” does not
                        recover but Rule 68      include fees, so usual                         include fees, so usual
                        precludes)               rule)                                          rule)
P wins more than        D (usual rule)           P (“costs” does not    D                       D (“costs” does not
offer                                            include fees, so usual                         include fees, so usual
                                                 rule)                                          rule)
                              Civil rights statute where “costs” means “court costs plus attorney’s fees”
Who wins                P’s post-offer costs     P’s post-offer fees    D’s post-offer costs    D’s post-offer fees
P wins less than offer P (usually could          P (usually could       P                       D (should shift
                        recover but Rule 68      recover but Rule 68                            according to Marek,
                        precludes)               precludes)                                     but courts have
                                                                                                refused to go so far)
P wins more than        D                        D                      D                       D
offer

                           If P loses there is no “judgment” so Rule 68 does not apply, just revert to rule 54.
                           Policy
                                  Advance law, encourage “private attorney general”/civil rights suits vs. encourage settlement
                                  Fear that defendant will game system, make token offer of $1
                                                                                                                                   2/14/2011

OTHER SETTLEMENT OPTIONS: ADR – Alternative Dispute Resolution; Three principal alternatives to a full trial: 1) negotiation
and settlement promotion 2) third party intervention (mediation) 3) arbitration



ATTORNEY’S FEES
   FRCP 54 – Default rule - you can always recover costs (loser has to pay winner) but not atty fees; each pays his own
   Exception: Fee-shifting provision: in CR cases (and some others) by statute (§1983), the def must pay the π’s fees if he loses.
         The π only had to pay the def’s fees if the lawsuit was frivolous or vexatious.
        Venegas v. Mitchell – π made a deal with attny to give him a contingent fee – then recovered atty fees as well under §1983 – doe
         she still have to pay contingency fee??
              o Ct says yes. If you make a side deal with your lawyer so be it. § 1983 not intended to limit ppl from making side deals
                    with their attnys
              o Method that ct uses to determine costs is lodestar method – hourly billing rate of attnys – looks at what is reasonable
                    (and then adds or subtracts some percentage based on performance?)
              o American rule v. English rule – pros and cons? English rule: Rule in almost entire rest of the world – if you win you
                    don’t pay fees if you lose you ay the other guys fees



VII. DISCOVERY, PRETRIAL (JURY SELECTION), TRIAL
DISCOVERY
        Purp: find evidence/preserves it for tr., what is in dispute, sj args, settmt, no tr. surprises; Q’s: Do you need it? Are you going to
         use it to exploit the other side? Is it too costly?
        What is discoverable? Admissibility isn't required, but you can't go fishing either; must be info that's reas.calculated to lead to
         the discovery of admissible evidence.
        Kinds: Deposition (Rule 30b6 – depo the def); Interrogatories; Production of docs and tangible evidence(all or nothing
         competing strategies); Physical and mental examinations (rare b/c so intrusive); RFA request for admission; usu at end of disc
        Balancing test -- Davis v. Ross & Kozlsaski v. Sears

  Scope of discovery: must be (1) not privileged, (2) relevant, (3) proportional (cost has to be worth it Ross, Kozlowski)

PRIVILEGE (26 b 3)
        WP: 1) docs and tangible things 2) substantial need 3) can’t get it any other way 4) avoid disclosing the mental impressions of
         the lawyer (in camera review smtmes) Hickman v. Taylor – ct says no piggybacking
        A/C: 1) capacity as a lawyer (can be a corporation – but confusing as to ex-employees) 2) in confidence (don’t ever have anyone
         else there) 3) can be waived (like in fee disputes) 4) absolute – narrower than work product (covers a smaller segment of stuff) ,
         but stronger. Upjohn – if corp is client all employees are client – bright line rule.

EXPERTS (26 b 4) - 1) info form your experts priv even if not testifying unless - exceptional circs OR can’t otherwise obtain info 2)
only need to provide info for experts who are testifying (depos, disclosures). Shell Oil Refinery

TRIAL - JURY SELECTION – need a fair representation of the community
        Pool – randomly selected – if not representative, something fishy going on.
        Venire – smaller group that then is actually involved in jury selection for any one jury.
        Challenges: ―for cause‖ –unlimited challenge if you have a good reason; peremptory – you get 3; challenge for no reason
        Edmundson – Blacks excluded from civil jury where π was black. Batson said apply Burdine test. Big hurdle is how is the state
         involved: t says b/c whole ct system is state sanctioned; rights of the excluded jury must be protected and the π has standing to do
         so (3rd party standing – narrow exception to usual rule here) ; but, not saying that π can bring the suit b/c we know the juror
         would have found for them.
        J.E.B. – men excluded from jury for child support case. Gender discrim also not allowed. Long history of women being
         excluded, but then shifts and says also not ok to exclude men.
        Policy args used for no discrim in peremptories: 1) sympathy of peers (jury’s bulwark against the state) 2) confidence in the
         system 3) diffused impartiality (biases will be cancelled out)/ More deliberative – info revealed 4) decisons reflecting what the
         community wants/democracy 5) accuracy of large numbers 6) community standards (can do reasonable things in one place, that
         are not reasonable in another place) 7) essentialism (label them, not treat them as an individual)/ subordination (reinforcing a
         stigma) Best args are 4 & 7 – democracy and essentialism
                                                                                                                                 2/14/2011
        Pool must be representative but venire does not - random numbers) -- the bigger the pool, the more there should be
         representativeness, but the smaller, the more unlikely that is due to randomness. Like the right to vote – you can vote, but that
         does not mean you get to have your candidate win – it is about participation in the process.
        Person’s whos rights are being violated is the juror; 3 rd party standard
        Souter –. . . if you don’t have a good reason, it means you have a bad reason; (Hicks – Scalia worried about middle managers;
         Souter – worried about jury trolling through)
        Batson or Burdine? Batson test: if you can disprove reason, by showing it is pretextual, then it is discrim. Lawyers know their
         own minds; efficiency interests Why do you let jurors be knocked out at all? Sense of fairness, ―I cut you choose‖ mentality –
         both sides eliminate who they don’t want, end up with a pool tht both sides are okay with.
        JURY SIZE -Colgrove – is 6 enough?
             o Brennan (maj) says yes. Says jury’s two functions are cross-section of community and deliberation, these are still
                  accomplished with 6 person jury. Uses social science.
             o Marshall says no - This decision is an embarrassment. Slippery slope arg, what # is too small. If you are going to draw
                  an arbitrary lines at least draw it on the side of history.
             o Overall, Colgrove not very well respected decision.
             o Danger of using social science – can move too quickly or just be bad



VIII. AFTER THE JUDGMENT
IF YOU LOSE: 1) remittitur 2) jnov/renewed dv 3)mfnt 4) Rule 60 5) relitigate(likely to be barred by rj)

REMITTITUR/ADDITUR
        Dimick v. Schiedt -- additur is not constit – remit is already contained within jury verdict, but if you give a higher amt than you
         are changing the verdict. Bad arg, but they are stuck with leaving remittur constit b/c of precedent. Not willing the expand
         upon a bad rule.
        Rem is pegged at one of three places 1) lowest reas jry verd. 2) reasonableness (judge) 3) highest reas. jury verd. -- cts usually
         decide to go with 2 or 3 – reas. or highest reas.


THREE 10 DAY MOTIONS - JNOV (RULE 50) /MFNT/MTA and the 7th Amend
(Judgmt as a matter of law: five ways to get to the merits w/o trial: 1) 12(b)6 2) Motion for judgment on the pleadings (12c) 3) Summary
Judgment 56 4) Directed verdict – before jury has ruled 5) JNOV – after the jury has ruled (but you must have asked for a dv
beforehand – viewed as a renewal of your dv plea)
     Strategy – separate the motions out – handle one a a time, run through test, decide to grant or deny, then deal with appeals ?.

JNOV/DV (Rule 50) – granted if no reas. jury could find for the nonmoving pty; make all inferences in favor of the
nonmoving party (in light most favorable to nonmoving party); judge not allowed to weigh credibility of witnesses; must be made
w/in 10 days; jnov is renewed motion for dv b/c of constit issues (per Galloway – upholds legal fiction)

-courts generally agree that questions of liability and damages should go to the jury if a jury could reasonably find for both sides,
but they are also willing to grant dv’s when there is reason to fear an irrational verdict.

Critical question is: degree of evidence that the non-movant must have produced in order to satisfy his burden of production
(depends on circs of the case, and general policy goals of trying to avoid bad jury verdicts but not usurping under 7th amend):
Which test you picks depends on what you are willing to trade off and what you value most.
     Two extreme tests: Scintilla and Alternate inferences;
             o Alt. Inf. - Use all evidence, view evidence in light most favorable to nonmovant, if jurors could reasonable reach two
                 inconsistent inferences based on this evidence, then court should direct a verdict against person with burden of proof (if
                 two inconsistent inferences, then π loses (cannot prove case)).
             o Scintilla (Galloway dissent)– Use only π’s (nonmovants)evidence; view evidence in light most favorable to
                 nonmovant; if there is a glean, glimmer, spark, or scintilla then it goes to the jury; comes form dissent in (Galloway -
                 trying to prove insanity to get war risk insurance; Judge based on 7th amen history - two type of ways to get around
                 jury; Demurrer – had to bet your case on sj motion; Motion for new trial; Ct says that here there is a hole in the
                 evidence – like demurrer – π loses; Black’s dissent – says that if there is NO evidence then you don’t go to jury, but if
                 there is a scintilla you need to litigate it. Otherwise he says that the court is making factual determinations, and judging
                 witness credibility. )
     Middle tests:
                                                                                                                            2/14/2011
         o    FELA – Use only π’s (nonmovant’s) evidence; view in light most favorable to nonmovant; unless there are ―complete
              absence of probative facts‖ case goes to jury; Lavender v. Kurn – RR employee killed either while turning switch or
              was murdered. Ct applies FELA test – enough prob. facts to make π’s story possible – must go to jury.
         o Federal – Use π’s (nonmovant) evidence and uncontradicted or unimpeached ∆’s (movant’s)evidence; view in light
              most favorable to the nonmovant, see if a reasonable jury could find for π
         o Modified Federal – Use ALL evidence; in light most favorable to nonmovant; could a reasonable jury find for π.
         o Standard today: is somewhere between federal and modified federal. Usually courts say the federal standard, but
              then use the modified standard. Fed standard seems most fair as to what jury would reasonably look at. But judges
              have a hard time ignoring better evidence i..e. doc evidence versus witness testimony – so when you are before a court
              you should argue from whichever side you are on for judge to move closer to you – larger 7th amend themes.
   Gunther v. Armstrong – Sears employee has tire explode, his testimony contradicts the evidence (black v. white tire). Ct finds
    that jury should weigh this discrepancy not the court.
   Probability argument – ―blue bus‖ arg. Cannot just assume that someone must have done it b/c there is a higher probability of
    it. Summers – two ppl fire their guns, one of them is def. responsible, both were being negligent. Drug companies all produced a
    dangerous drug one of them is responsible for selling it to someone who died. When multiple defs – get together all ppl
    responsible and split up costs – seems not to be the function of the court system – the defs are free to settle among themselves.
    When it gets to the court, impt thing is to figure out who was at fault. Intuitive sense that this seems inappropriate – seems to go
    against finding truth. Idea of truth – don’t want to say at the end of the day that def was 80% more likely to do it – something
    about the broader conception of the jury and its role? Undermines this idea of jury as truthfinder.


MOTION FOR A NEW TRIAL (MFNT) – (frcp 59)
Most common reasons for new trial: irrational jury verdict; prejudicial error on the pt of the ct (admitting non admissible
evidence), or to allow a pty to bring in new evidence.
Motion for a New Trial - Reqs:
    1) clear weight of the evidence (not like JNOV where you draw all inferences in favor of π) or clear miscarriage of justice
    2) All evidence reviewed
    3) Judge can weigh evidence/judge credibility
         o Ahern v. Scholz – Breach of contract action; π, Ahern is the former manager of musician ∆ Scholz (who was in the
             group BOSTON). No royalties paid under third album. Other side sues back. QP: should there have been a mot for
             new trial?
         o Test: clear weight of the evidence (you get to look at everyone’s evidence). CT finds in Ahern that there is conflicting
             evidence so verdict does not go against the weight or the evidence – mfnt was properly denied by dist ct.
         o Big diff from JNOV mot – you get to judge credibility. So, easier to get a MfNT than a JNOV or DV, also not
             denying the person their day in ct – giving them a chance to litigate all over again. (not 7 th Amend concerns)
         o More difficult to overturn on appeal than jnovdv because dist ct judge’s decision is entited to significant
             deference.
         o Used when: 1) to correct prejudicial errors committed by the court at trial 2) to fix a defective verdict 3) to allow a party
             to bring in new evidence under certain conditions

   FRCP 59 v. FRCP 60 – MFNT and MTAA must be filed w/in ten days; 60 – relief from order or judgment - clerical mistakes,
    inadvertance, new evidence (have to have been reasonably diligent though) Default judgments – rule 60 is must harsher than
    55(?) – but interpreted the same for default judgments; an even higher standard applied. Much harder to lift something under rule
    60 than to get a motion for new trial under 59. Thumb on the scale in favor of final verdict. QUESTION – what’s the diff
    between 59 and 60?



JNOV AND MFNT on appeal - B/c of efficiency problems, rule 50 (c) created to require that a trial ct issuing a
JNOV must also conditionally rule on any pending motions for a new trial, in case jnov gets dismissed. Under what scenarios is a
judgment appealable?
       o To have an appeal you need a final judgment (exception to the rule: interlocutory appeals)
       o Generally, you can not appeal MFNT, b/c the app cts will defer to the judgment of the lower ct and a MFNT is not a
            final judgment – app want you to go relitigate it and then file an appeal if you still don’t like the outcome. Jury verdicts
            and JNOV’s are final.
       o MFTN granted - not appealable; MFTN denied – appealable; JNOV – always appealable
       o Assumption: π loses trial and brings JNOV motion, so what happens?:

     JNOV          New Trial          Appealable?     Comments:
     motion        motion
     Granted       Conditionally      Both            Rare situation: Lower ct says we do think that there is enough overwhelming
                                                                                                                                 2/14/2011
          (π wins)      denies                            evidence by π (draw all inf in favor of π) so that he should win (like sj), BUT
                                                          if the upper ct should overrule us, we think it is b/c they must be interpreting
                                                          the law differently and in that case, there should not be a new trial.
          Denied        Granted           Neither         No final judgment has been issued, b/c there is going to be a new trial – there
          (π loses)                                       has not been a final jury verdict . Cannot appeal the JNOV denial, b/c
                                                          according to ct the verdict doesn’t stand anymore.
          Denied        Denied            Both            The final verdict is left standing so that can be reviewed, and the π can also
          (π wins)                                        ask that his mot for a new trial be reviewed. **
          Granted       Conditionally     Both            More likely situation: Lower ct says we find the evidence compels a decision
          (π wins)      grants                            for the π, BUT if the upper ct doesn’t think so, we at least think that in
                                                          weighing all of the evidence (easier standard) it is clear that there should be a
                                                          new trial. π can appeal the JNOV which becomes the final verdict and can
                                                          appeal MFNT as an EXCEPTION to the usual rule. Why? B/c the ct doesn’t
                                                          want to send it back down through the cts. In the interest of efficiency it is
                                                          better to decide it now. Not sure I get this??


**Problem with this system: in scenario three – if π is winning all along and the suddenly loses on appeal, the ct must give π ten days
from the final judgment to file a motion for new trial – before when π though he/she had won, he would not have filed a MFNT, def
probably did. So π gets her chance even though it is unlikely that the court is going to change their mind unless π can argue that there
was some evidence that was purposely excluded, etc.


RULE 60 – Relief from judgment
Rule 60b motion to set aside the judgment is an extremely high bar to pass. ∆ must demonstrate presence of mistake, inadvertence,
surprise, excusable neglect, or fraud. If you find new evidence within a year than a better chance.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.
The following reasons: (1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party
(4) the judgment is void
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment.

JUROR IMPEACHMENT
        Special Verdict: 49a - special verdict in which jur just answers questions and gives no overall verdict – no mention of waiver
        Special Verdict 49b – general verdict and interrogatories – jury is asked specific questions, as well as giving a general conclusion
         – waive this option if you do not bring it up before jury leaves.
        Whitlock – wrongful death suit ; police officers injured π’s late husband – inconsistency alleged between jury gave pun. damg
         but did not find a constit violatn.
              o Ct decides b/c no general verdict given the verdict falls under 49a – says there is no waiver provision under 49a
              o Ct says they MUST try to harmonize the jury’s answers even if it is a stretch (ct says no 4th amend b/c battery occurred
                  after the arrest —pun damges could be for malice or deterrence)
        Juror Impeachment: Three rules:
              o Common law rule (Mansfield rule) – jurors can’t testify; if only evidence is juror’s own testimony you are out of luck
                  (Sopp) Sopp dissent –says that rule is designed to protect jurors, not prevent them from speaking at all.
              o Fed rule – outside only – only stuff that is extraneous to what the jurors are doing; extraneous to what the jury is doing.
                  – external influences on the jury. But not anything about the internal deliberations. Sopp – outside evidence influenced
                  that juror, but don’t know how it affected other jurors.
              o Iowa rule – anything that’s capable of objective proof. (distinction between extrinsic and overt acts and internal
                  thoughts/mistakes.)
              o Do hand grenade hypo under all three tests.
                                                                                                        2/14/2011
IX. WHO IS BOUND BY THE JUDGMT?                                             RES JUDICATA & COLLATERAL ESTOPPEL
        Firm rules – desire for FINALITY at its strongest; so usu will come out the hard way. Like stare decisis within the case itself.
        Stare decisis is both more expansive (applies to everyone) and loose (cn ask for a diff result) than rj and ce.
        Common law rules - state cts make their own rules about it and fed cts make their own rules about it
        Why? 1) Finality 2) Ordering conduct 3) Efficiency 4) Fear of impropriety: maintain consistency w/in the cts 5) Harassment
         (endless litigation) 6) Utility – get it settled while fresh.

RES JUDICATA/Claim preclusion; ―the thing has been adjudicated‖ (the case & all claims that could have been brought)
       TEST: 1)FINAL judgment 2) VALID judgment 3) ON THE MERITS 4) Bars all claims arising from the SAME
        TRANSACTION OR OCCURRENCE (whether litigated or not) 5) For PARTIES to the suit or their privies.
        Merger – π’s rights merge – part of the claim; Bar –can’t litigate it afterwards
     1) FINAL? Settlement is if it has ct’s approval/blessing; cts disagree on rj effect of trial ct if appeals are pending . . .
     3) ON THE MERITS? Rinehart (didn’t allege lack of prob cause – not allowed to amend, so refiles) Ct says 12b6 is res
        judicata; trad rule sez dismissal of a compliant is not an adjudication on the merits; but Rule 41(b) sez only ones that aren’t
        are: venue, juris, failure to join a party (Rule 19) (Expressio unius: once there’s a list, assume it’s complete); but SC has said
        this list is not complete-left with unclear rule: closer you move to something on the merits the more presumptively res judicata;
        test to see if if def has incurred some inconvenience (mitigating factors? drafting mistake, etc.) – debate between ordering
        conduct and unfairness (code pleading); GOOD question to ask is if the PL had the OPPORTUNITY to litigate the case; if
        yes then on the merits, if no than not. (default, failure to prosecute)
        If decided on a procedural issue, not rj, but ce if try to relitigate the procedural issue.
     4) SAME TRANSACTION OR OCCURRENCE
              o Manego (disco bar) – 1st suit discrim (state); 2nd is anti-trust (fed). RJ (except for new def, dismissed for other reas.);
                   lower ct applies test based on adequacy of discovery; App ct says NO ―same occurrence or transaction‖ as the prior
                   suit is the test; don’t want to be litigating about excuses, want an obj. standard.
              o How broad is STO standard? All claims litigated or unlitigated that arise from the same transaction or occurrence.
              o STO test for def? If ∆ has aff defense but didn’t litigate it; or raises and loses it raises one and loses, then res judicata.
                   Counterclaims are tech. not under rj, but Rule 13 makes fed compulsory counterclaims (Wigglesworth) rj. If state,
                   need to see if Rule 13 has been adopted. .
              o NEW MEDICAL problem, probably barred by rj; some exceptions for asbestos cases. . . ―could not have been
                   brought‖ versus should have been anticipated.
     5) SAME PARTIES: diff π’s with claims arising out of the same incident are not the same ―claim‖; every potential pl has his
        own distinct claim for rj purposes.
     Subject matter juris.: If ct throws out for smj then not a judgmt on the merits; rj only as to smj; if you disagree then appeal.
     Usu cts say you are allowed to take state claims to state ct first and then go to fed ct with your FED ONLY claims.
     FED CT THEN STATE CT: Supp. jurisover related state claims: You must bring them if you can; if ct says no and you
        appeal, then no rj. If you do not appeal cts are split about whether or not it counts as rj. Also prob if not brought up and 1st ct
        just assumes it has juris . .
     STATE CT THEN FED CT: Marresse – surgeons go to state ct (assoc) rights and then fed ct (antitrust) – O’Connor looks to
        b.o./Restat. (should have found a state cognate) and sez RJ, must solve it like an Erie problem: not subst law; state proc law and
        fed proc law on res judicata; they conflict; therefore state proc law should apply unless there is an overriding fed interest. §1738
        (full faith and credit clause) goes both ways –fed cts have to respect the judgment AND the effect that that state would give
        the judgment. RULE: Supposed to give the judgment of a state ct the same res judicata/preclusive effect that the state
        would give that judgment. Respect the cts judgment about the judgment (scope); don’t have to should go to most specific ct 1st.
        Usu cts say you are allowed to take state claims to state ct first and then go to fed ct with your FED ONLY claims.
     Ct wants problem fixed on appeal or by reopening orig case (Rule 60); not by opening a second case. (Fed. Dept stores –
        if fellow π’s appeal and you don’t, you DO NOT get the benefit of their judgment – cannot bring another suit; SC sez 9th circ’s
        public policy concerns not gonna fly; ? of if state antitrust claim are rj left undecided )
     RJ HYPOS FROM CLASS Play in the joints comes in a couple places –
              o 1) VALID: pers and subj matter jurisidction
              o 2)MERITS?
              o 3)EXCLUSIVE JURIS? if only fed cts can entertain it, cts go both ways: if there are two cts – go to the ct where
                   you can bring both claims (Posner); others take the other view don’t force ppl into a ct just b/c it isn’t full
                   service
              o 4) AFF def ?: RJ is an AFFIRMATIVE DEFENSE that must be asserted by the party asserting claim should be barred
                   under 8(c); AFF defenses are also RJ use em or lose em.
              o Counterclaims depends on if state has adopted rule 13 – are they comp. or perm. varies.
In most cases, claims that COULD have been brought but weren’t will not be barred by RJ, only those that were compulsory (i.e.
not cross-claims); likely though that in some instances you might run into CE problems.
                                                                                                                                              2/14/2011
COLLATERAL ESTOPPEL - Issue Preclusion
         TWO main diffs from RJ: 1) Issue HAS to have been litigated 2) Can be used in unrelated case, by a prev. uninvolv’d pty
         Addt’l concerns (from rj): 1) Fear of one mistake, bleeding into other cases 2)Don’t create incentive to appeal everything
         Test: 1) identical issue (unlike rj, where simply needs to arise from the same t or o) – must be the same issue.
               o 2) actually litigated and DECIDED
               o 3) ESSENTIAL to prior judgment (i.e. jif unrelated sj motion granted, no ce cause ∆ has no incentive to appeal)
               o 4) bind the parties who litigated the claim and their privies (can be asserted by someone outside the litigation)
         Much harder to get coll estoppel than rj – cts get very very precise in how you decide what has been decided before.
         SAME PARTIES: Little v. Blue Goose (bus/car accident)- 1st suit adjudicated by justice of the peace, in fav of blue goose.
          (why no rj? Bigger claim; not comp. counterclaim; dist between pers inj and other). CE b/c identical issue (of negligence);
          essential b/c contrib. negligence would lead to guilt on pt of bus co.; Two rules for negligence – Comparative negligence – pay
          for whatever percent of the injury you are responsible for. Contributory- If you have done anything wrong as the def – you get
          nothing . . .
         EXCEPTION: Gov’t usu. not stopped by CE b/c ct is worried about ―freezing the law‖ (IRS v. Sunnen - taxpayer w/patents).
          Ct sez functional reason can’t have every person w/their own separate tax law; if Ce applied every taxpayer would get benefit of
          the rule and use it against govt in every case going forward. (excep’n made for repeat transactns)
         ESSENTIAL TO JUDGMENT: Halpern (bankruptcy) 1st case found bankrupt; 2nd case to get out of bankruptcy; COA sez
          NO CE b/c – in prev case 3 sep grounds; intent was only adjudicated with respect to one. Two issues 1) Judge didn’t look hard
          at each one 2) Incentive for excessive appeals. (what if you win in total but lose on a subsidiary issue)
         RULE: If jury HAS to have hit two issues to get to judgmt (Blue Goose) – then CE; where there are sep and indep. Grounds cts
          split: 1) if ambiguity as to which one supports the judgmt – NO CE; 2) Halpern rule-must have same elements for each ground
          3) Some cts say we presume they were not lazy about it – All circuits agree that if it turns out these issues raised on appeal – then
          prob CE –once its gone thru two cts – been adequately reviewed.
         SPECIAL VERDICTS: often given to juries in cases with big claims; then cts have a better shot knowing what was decided.
         DIFF PARTY: Harding v. Johns (asbestos) 1st suit (Borel) found liability. Ct sez no CE b/c no identity of parties. Failure to
          warns issue is ambiguous; diff time frame; diff ppl involved (workers in diff places).
         PRIVITY? Benson: arg that other comp. (was a witness, same atty) was rep’d by pty in prior litigation. Ct says no. Three req’s:
               o 1) succeed in interest (you fight neighbor for an easement and then sell your land)
               o 2) non-party controlled the original suit (if an ins company takes over litigating a claim for you); have to be able
                     to control the lawyers; make the judgment calls; opp to go up on appeal
               o 3) adequately represented: virtual representation; express or implied legal relationship between the two parties;
                     narrowly applied b/c tough to show (ex of father in car crash able to sue once for himself, once for family)
         Mutuality of estoppel – for a long time the ct only allowed the first two columns to apply; idea of fairness, should not allow
          people to get ben. if not pt of orig suit; get all of the benefits and none of the costs; Blonder tongue – def coll est is okay (want
          to prevent ―repeated litigation of the same issue as long as the supply of unrelated defendants holds out‖); then Parklane (SEC –
          1st case, single shareholder, 2nd case) (―the π seeks to foreclose the ∆ fro litigating an issue the ∆ has previously litigated
          unsuccessfully in an action with another party.‖ – off ce is okay in SOME cases, if passes the test.
         FIRST PARTY must have had a FULL AND FAIR OPPORTUNITY to litigate the issue in the first case.
         PARTY BEING ESTOPPEL HAS TO HAVE LITIGATED IN THE FIRST CASE

Easy CE             Mutual lat est.                Def nonmutual coll. estoppel                          Off nonmutual coll estoppel
                    Same pties litigate a state    You think you have a patent; you lose, then you       (Parklane) (hemophiliacs case)
                    claim and then go litigate a   sue someone else for the same thing.                  A whole bunch of suits against same def – every
                    fed claim                                                                            other π would get benefit even if not in suit
Same pties          Same pties                     Same π (lost)                                         Diff π
Same claims         Diff claims                    Diff ∆                                                Same ∆ (lost)
Always              Always                         Often allowed b/c π chose forum and could have        Allowed only if sure the issue was fairly and fully
                                                   joined other ∆’s; must show that in prior suit π      litigated
                                                   had a chance to fully and fairly litigate the issue
                                                   (burden on invoking pty - ∆ to prove)
Blue Goose          Hypo: Anti-trust suit in       Hypo: Guy who thinks he has a patent on the           Parklane
                    state ct and then in fed ct.   wheel                                                 Mendoza
Also check for rj   Also check for rj

         Diff between OFF CE and DEF: Def ce incentive to bring everyone in all at once; off incentive to sit back – does not promote
          judicial economy (never want to be 1st π to file a suit). Possible unfairness to def – bunch of smaller claims not defended as
          vigorously; on judgmt can tie def in 3) π gets to chose forum; def shouldn’t be bound if he didn’t even get to chose and didn’t
          have control over what pts brought in. . . .
         Test for OFF CE:
                                                                                                                                 2/14/2011
             o    1) if pl had an opportunity to join the suit (discretionary standard) – where they could have or should have
                  joined –cts use a lot of discretion - if the π didn’t know about it, formally couldn’t join, or there are pragmatic reasons
                  (like you have a tiny issue, distance, etc.) (prevents π from ―wait and see‖ strategy)
             o 2) if unfair to def b/c of π’s ability to chose the forum:
                        no incentive (small suit) - have to be litigating roughly the same stakes
                        def has own some cases somewhere and lost some cases elsewhere; better to have more juries weigh in
                        procedural differences - diff standards, evidence, kinds of witnesses - diff outcomes in diff places
       EXCEPTION – Gov’t – Mendoza (former vet wants citizenship) – if def is gov’t no off collateral estoppel; Would have met
        the test otherwise: Same issue; Litigated and decided; Essential to judgment; Prob couldn’t have joined other suit;So why is govt
        diff? Forced appeals – change practice of SG – have to appeal everything expend more resources; Cts own practice – ―this
        issue should percolate;‖ want to have warring app cts before granting cert; freezing the law into place (diff admins might want
        to make changes; dem judgmt of elected officials). So non nonmut. off ce against US. – no def estoppel. either (generally).
       MUTUALITY still applies in some states; but has been abandoned in the fed cts.
       IN EVERY CASE AT LEATS ONE PARTY MUST HAVE BEEN IN PREVIOUS SUIT (OR BE A PRIVY) B/C
        nonmutual estoppel may only be invoked against a party who litigated and lost on the issue before.
       CE HYPOS FROM CLASS
       Civil/Criminal: Can the civil case use a verdict from the state . . . depends on what the standard of proof is – standard in crim
        case is much higher . . . sometimes it would apply and sometimes not

** Other suit pending – can enjoin or dismiss.
                                                                                                                                    2/14/2011
X. NATIONAL ANTHEM THEMES
Order - ppl want to know what the rules are in advance so they can order their conduct
Conflict - like sport - judge is neutral referee, two equal sides each on equal playing field
Participation - Value to giving both sides a shot
Perception – Appearance of impartiality –courts have nothing but their reputation/respect; Judges are impartial referees (Band’s Refuse v.
Fairlawn) but Rule 16 does give judges a lot of managerial power in the interest of efficiency/ROLE OF THE JUDGE (7th AMEN)
Compromise - Speedy and inexpensive goals compromised with truth/justice Rule 1 – just, speedy and inexpensive
Process v. Substance – distinction between the two gets fuzzy;

Due process (14th amend) thru the lens of prejudgment remedies
Narrow tailoring test (Fuentes – stove, writ of replevin) – Maj: only three sits in which you can deny due process: 1) legitimate gov’t
interest 2)exigent circs 3) narrowly drawn statute. Dissent (White) - dp doesn’t req. a hearing; plus this is not really going to work and
goes against goal of efficiency. Totality of Circs (Mitchell) Maj (White): adeq. safeguards exist; no hearing necc. Dissent: Maj is
overruling Fuentes.
North Georgia Finishing – Puts Mitchell and Fuentes together – Maj: Must have either a hearing (rights) or proper safeguards (util.)
Balancing test (CT v. Doehr – property attached; unrelated to lawsuit)– no more rights, just utilitarian – no more gov’t interest, just about
private ints. Maj(White): Ct uses a completely different set of factors from Matthews: 1)Private Interest 2) Risk of erroneous
deprivation/Probable Value of additional safeguards 3)Interest of creditor

Rules v. standard debate (Mitchell - truckdriver versus Eastman – pleading standard versus a bright-line rule)
7th amendment concerns – whenever merits reached w/o jury trial, must ask if this is ok; also when ppl denied their day in ct – i.e. class-
actions
Strategies to interpret the constit: 1) Strict constructionist – whatever is there, is all we go by. 2) Evolution – must allow constit to evolve
over time as we do 3) Compromise position, allow evolving standard to come in where there are holes in the strict text.
Brooding omnipresence v. legal realist theory – Swift and Pennoyer versus Erie and Int’l Shoe.
                                                                                                                                   2/14/2011
OTHER (NOT LIKLELY TO SEE)

SUPPLEMENTAL JURISIDCTION
Comes from: pendent (π tries to add a state claim) and ancillary (∆ tries to add state issue, via counterclaim or 3rd pty ∆).

VENUE AND FORUM NON CONVENIENS – rules of convenience
         VENUE–about shifting or transferring to another court; NOT about dismissing. Standard is very low to prove venue.
         Post 1990 test: 1) where ∆ resides (if all ∆’s reside in same place); corps ―reside wherever they are subj to
         personal juris.; foreigners can be sued in any district 2) where substantial part of the events took place (Bates v. C&S –
         question of what #2 means – substantial part of events . . . letter forwarded to NY beginning the action is enough)

         FORUM NON CONVENIENS - like venue but involving different states or countries; main diff is that here case gets
         dismissed not transferred – so a bit of a higher standard. (Piper Aircraft – ct says should be litigated in Scotland – tough
         luck if our laws are better, that is only one consideration in the assessment, not the only consideration.)

STATE V. STATE LAW
        Easy ?: TEST: Simple balancing test of competing state interests LIKE: justified exp. of ptys; needs of interstate sys; policies
         of interested sts; certainty/predictability/uniformity of result; ease in determining an app. of the law) (dp reqs that state must have
         significant contact creating state interests such that choice of law is not ―arbitrary or fundamentally unfair‖ – less demanding
         standard than min contacts for pers. jurisd.).
        Result: Subst. latitude given to cts and except for limit’ns of juris. and venue, π’s can forum shop to some extent
        Cts have a strong tendency to apply their own law
        Chosen law ONLY applies to substance – procedural rules generally left to forum ct.

JUSTICABILITY - Check: Ripeness (too early), Standing (injury in fact, personal stake), Feigned/Collusive (desire to assert
interest), Mootness (too late- unless ―capable of repetition but evading review‖ i.e. abortion)

STANDARD OF REVIEW
Appellate courts review district court decisions under different standards:
   1) Factual judgments- reviewed for ―clear error‖
   2) Legal judgments – reviewed ―de novo‖
   3) Discretionary decisions – reviewed for ―an abuse of discretion

Without prejudice – when π is dismissed and allowed the amend his complaint/refile
With prejudice – case is over.

DEF’s ANSWER – should be a paragraph by paragraph response to the π’s statement of the facts and the law as well as a list of the
defenses she will assert. (def may also file counterclaims or cross-claims setting forth her own grievances from the incident); the def must
admit, deny, or claim no knowledge about each statement made in eth complaint; this stage is designed to narrow the issues and find
points of agreement between the parties, thus avoiding unnecessary litigation.


Summary judgment: paper trial; no judgment as to the credibility of the witnesses – looks at the facts and determines if there is a viable
disagreement requiring a trial; high standard because it cuts the dispute short before trial.

Summary judgment v. DV of JNOV – roughly the same inquiry – but sj is earlier so more reluctance to dismiss; both show that
nonmovant has failed to meet his burden of production.

SJ burdens – reread p. 427-8; movants burden 403-406

Post trial motions- standard is extremely deferential to the factfinder – JNOV, MFNT, Modification of damages amount

Res ipsa loquitor – let the thing speak for itself

Judgment as a matter of law – two issues:
    1) consistent with dictates of 7th amendment (Na’l anthem themes – worried about judges overstepping their bounds but also
       worried about bad jury verdicts and judicial efficiency)
    2) method to determine if enough evidence exists for a ―reasonable jury to find in the party’s favor
                                                                                                                                 2/14/2011

 REMEDIES – MONETARY AND EQUITABLE
    Monetary
        o compensatory – compensate you for an injury (hospital bills, phys pain, etc)
             o     punitive damages – what juries think are necessary to deter the conduct in the future
             o     nominal damages – a dollar. you won, but who cares. BUT you win, so you can get lawyer’s fees. Can matter a lot for
                   civil rights statutes.
        Carey v. Piphus – two kids suspended – earring wearer and pot smoker – without a hearing – arg before SC for violation of due
         process. Ct finds that for compensatory damages to be awarded you must show an injury (like a tort) - exception: libel suits
         there is injury per se, injury to your reputation.
              o Ultimate decision is that if you in the end get it right, then it is okay to deny due process – have to prove that there is an
                   actual injury to get more than nominal damages.
              o One problem with this approach is that leads to racial profiling in traffic violations
        Equitable remedies – Balancing test – see if there is an immediate risk of harm that is irreparable – figure out how likely it is
         that π is going to win (CT v. Doehr – balancing test) Injunctive relief far more powerful than monetary relief – more closely
         regulated by Cong. Smith v. Western Electric - requirement to provide a smoke free workplace?? To get injunctive relief – must
         show irreparable harm (money can’t actually fix the problem) and imminence. Types include TRO, preliminary injunction, and
         permanent injunction.
         Need two things for equitable relief: 1) a risk of substantial and immediate harm to the π
                                                   2) a harm that is irreparable, that is, cannot be remedied through monetary payments
        Declaratory relief – odd, ask the court in advance of an injury to tell you what your legal rights are – standing problem –
         haven’t been injured yet --- way to get around it is that judges say that your injury needs to be imminent – rare but done on
         occasion; simple adjudication of the rights and obligations of the parties; often sought in conjunction with other types of
         remedies; especially useful for a party who expects a future suit to be brought against her becaue it allows her to obtain an
         adjudication of the other party’s prospective claim.


  DISCOVERY – MINI OUTLINE
I. Discovery
     a. Policy – discover where there’s issue/no issue, allows for summary judgment, see other’s documents ahead of
        time, preserve evidence for trial
        1. fairness (equal access to data), privacy, cost-efficiency, merits
     b. Reasons to deny – do you need it? Going to use it to exploit other side? Too costly?
     c. Types – deposition (30/31), interrogatories (33), documents (34), physical/mental exam (35), request for
        admission (36), subpoena (45)
     d. Discovery from nonparties more limited than discovery from parties. Nonparties cannot control
        litigation/discovery, should not be forced to subsidize costs. Rule 11 prevents naming as parties all those
        from whom one wants discovery.
     e. Rule 26(b) – scope of discovery
        1. must be (1) not privileged, (2) relevant, (3) proportional (cost has to be worth it Ross, Kozlowski)
        2. limitations
           i. Unreasonably cumulative or duplicative – burden outweighs benefits
          ii. Ample opportunity
         iii. Confidential/privileged information – lawyer/client, doctor/patient, priest/penitent, spouses
               A. No third parties must be present
          iv. Private information – Davis v. Ross – income/sexual/etc information
           v. Work product – Hickman v. Taylor – tugboat accident case, codified in 26(b)(3)
               A. (1) tangible, (2)substantial need, (3) no alternative
               B. mental impressions are protected
               C. If plaintiff can get all the underlying facts by asking the right questions – don’t want to let
                    one party take advantage of other party’s work
               D. Don’t want to discourage lawyers from writing things down – inefficient, unfair, demoralizing
               E. Lawyer is an officer of the court, don’t want to force him to testify as an ordinary witness,
                    improper to step out of role.
               F. Applies to entire company. Rule, not standard, b/c otherwise never sure when ppl qualify as part
                    of the company (Upjohn). Helps order conduct, uncertain privilege is no privilege
        3. Expert witnesses – 26(b)(4)
           i. Testifying witnesses – disclosure of identities/opinions required, may be deposed by other party
          ii. Non-testifying witnesses – disclosure not required, discovery only allowed under “showing of
               exceptional circumstances” In Re Shell Oil Refinery
               A. Good tactic to hire witnesses you don’t want testifying against you
                                                                                                                               2/14/2011
POSSIBLE THEMES:

REWRITING RULE 11 –

ZIPPO -

JURY SELECTION –

JNOV – Constitutional?

Diversity Jurisdiction –
-problems with forum shopping gone
-prejudice between states


Well pleaded complaint?

PERSONAL JURIS: MIN CONTACTS TEST

ASAHI v. WWV (Intent to serve or not)
Plurality
Stevens in Asahi dissent –says don’t need intent to serve; b/c reasonableness test of part two of BK test; no presumption.
Cannot control where things in stream of commerce go . . . finished product closer to WVV and component closer to Gray.

IN PERSONAM JURIS:
Is Burnham right? In Burnham dissent: says that Shaffer said: ―all rules of jurisdiction even ancient ones must satisfy modern notions
of due process‖

BURGER KING – dissent in BK -- stevens and whites – mi store; mi customers;


FED v. MODIFIED FED (JNOV test)

―Show me motion‖ v. White


ATTORNEY’S FEES/RULE 68
   - if you lose – def offers you a dollar and you lose – in theory you would have to pay their costs . . . not treating loss as a judgment
   -

Seaway – tristate area (NY)
Owens – NE - thought they were incorporated in one state vs. a bordering state.

				
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