Docstoc

NATURE OF THE JUDICIARY

Document Sample
NATURE OF THE JUDICIARY Powered By Docstoc
					                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

NATURE OF THE JUDICIARY
  I.    Judiciary has power to review legislative (and later executive acts)
        a. Marbury v. Madison – 1803 – struck down law that gave SC more original
            jurisdiction than granted in the Constitution; reasoning: need this power in order
            to decide cases
        b. Cooper v. Aaron -1958 – Federal and state governments must comport with what
            we decide the Constitution says; Reasoning: we‟re the final arbiter on what the
            Constitution says
LAWSUIT
  I.    Complaint
        a. Where should it be filed?
                 i. Federal/state court – decided by arising under jurisdiction
                ii. Geographical location – en personam jurisdiction
               iii. Geographical convenience – venue
        b. Content of complaint
                 i. Alleged subject matter jurisdiction
                ii. Alleged personal jurisdiction
               iii. Venue
               iv. Identify parties
                v. Facts
               vi. Relief Requested
  II.   3 stages at which to test plaintiff‟s case
        a. Motion to dismiss – if every fact in complaint is true, would it still fail?
        b. Motion for summary judgment – if there are no questions of fact, no trial.
                 i. Usually settle if facts are in dispute
        c. Trial/Verdict – relief in law or equity
                           SUBJECT MATTER JURISDICTION
ARISING UNDER JURISDICTION
  I.    Federal causes of action
        a. Concurrent jurisdiction
                 i. Unless otherwise stated, state courts also have jurisdiction over these.
        b. Exclusive jurisdiction for federal courts
                 i. Copyright and patent litigation
  II.   Statutory grant of arising under jurisdiction is § 1331
  III.  There must be statutory and constitutional grant of subject matter jurisdiction for
        federal courts to have jurisdiction.
        a. 28 U.S.C. § 1331 – Grants arising under jurisdiction
                 i. The district courts shall have original jurisdiction of all civil actions
                     arising under the Constitution, laws, or treaties of the United States.
        b. U.S. Const. Art. 3 - The judicial power shall extend to all Cases, in Law and
            Equity, arising under this Constitution, the Laws of the United States, and
            Treaties made, or which shall be made, under their Authority
        c. Louisville & Nashville R. Co. v. Mottley- 1908 – Mottley had passes to ride RR
            for life; Congress passed law prohibiting these passes; Mottley sued in federal
            court to get the passes; Supreme Court: lower courts did not have jurisdiction


                                        PAGE 1 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

      d. statutes typically interpreted more narrowly than Constitution, despite having
          essentially the same wording
               i. Osborn v. Bank of the United States – 1824 – very broad interpretation of
                   constitutional grant of jurisdiction; if ingredient of case is raises federal
                   issue, then courts can exercise it.
IV.   Well-pleaded complaint rule – subject matter jurisdiction must be established in
      plaintiff‟s complaint; must be necessary to prove her claim; cannot create a federal
      issue by anticipating a defense
      a. Mottley – anticipated D‟s defense was law prohibiting lifetime passes
               i. Federal Circuit Court also cannot exercise jurisdiction when federal
                   defense is raised by counterclaim
                       1. Holmes Group v. Vornado Circulation Systems – 2002
      b. Exception to well-pleaded complaint rule: Declaratory Judgment
               i. 28 U.S.C. § 2201 – allows courts to issue declarative judgments –people
                   have live dispute and bring it to court so they know how to act to prevent
                   further damage
              ii. With declaratory judgment, court has to examine underlying dispute,
                   imagine who would sue, construct that lawsuit, and decide if that lawsuit
                   arises under federal laws, constitution
                       1. First Federal Savings & Loan Association of Bowling Green,
                           Kentucky v. H. Early McReynolds – 1969 – KY – bank sued for
                           declaratory judgment against terminated employee; court
                           dismissed because of lack of subject matter jurisdiction; cannot
                           gain federal jurisdiction simply by filing lawsuit first – if employee
                           had filed first, would have been irremovable state court claim.
V.    Courts can (and should) raise jurisdiction sua sponte; no need for parties to raise it
      a. Mottley – never contested until Supreme Court decided that it did not exist
VI.   Federal law cause of action is neither necessary nor sufficient to establish subject
      matter jurisdiction, but it helps
      a. Arising under jurisdiction exists when the plaintiff must prove a proposition of
          federal law to establish her state law claim (no federal law claim exists).
               i. Smith v. Kansas City Title & Trust Co. – 1921 – suit argued that bank
                   officers violated duty to shareholders of bank by investing in
                   unconstitutionally created federal bonds; state law cause of action because
                   state law creates duty; federal law question necessary to decide case
                       1. Because real question is the constitutionality of a federal action,
                           jurisdiction exists.
              ii. Moore v. Chesapeake & Ohio Ry. Co. – 1934 – state law defined liability
                   by prohibiting contributory negligence when D violated fed or state
                   statutes; D violated federal act; court: no jurisdiction when state law
                   defined liability and federal statute created duty that was breached
                       1. [maybe: difference that Smith is a constitutional question, while
                           Moore involves law that established duty]
      b. Federal causes of action dependent on state law and local customs should be
          heard in state court


                                      PAGE 2 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                 i. Shoshone Mining Co. v. Rutter – 1900 – federal statute authorized
                     claimants to sue, but did not establish federal law to govern claims; state
                     court has jurisdiction
        c. When Congress creates rights, but doesn‟t explicitly establish right to sue, must
            decide whether there is implied cause of action.
                 i. Merrell Dow Pharmaceuticals Inc. v. Thompson – 1986 – Negligence
                     claim based on failure to inform, which was required by FDCA; FDCA
                     creates duties, but no right to sue; Court: no implied right to sue either
                         1. Different from Smith because there was right to sue
                         2. Is this a return to which law created claim?
                         3. Look at federal interests involved*
DIVERSITY JURISDICTION
   I.   Questions involving diversity jurisdiction = state law claims; otherwise, arising
        under jurisdiction
        a. Jurisdictional Grants
                 i. U.S. Const. Art. III, § 2, cl. 1
                ii. 28 U.S.C. § 1332 – establishes rules for diversity jurisdiction
                         1. 28 U.S.C. § 1359 – no party can be forced to join lawsuit
                             improperly for jurisdiction purposes
   II.  There must be complete diversity – all of the plaintiffs must be from different states
        than all of the defendants
        a. Strawbridge et. al. v. Curtiss et. al. – 1806 - 1 defendant not from MA; all other
            plaintiffs and defendants were from MA; dismissed for lack of jurisdiction
                 i. Interpreting statute, not constitution
                         1. constitution only requires minimal jurisdiction (class-actions)
   III. Citizenship for diversity purposes is party‟s domicile – where you intend to stay
        indefinitely, not residence
        a. Mas v. Perry – 1974 – 5th Circuit - married couple rent apartment that secretly has
            2 way mirror that allows LL to watch them; sue in federal court based on
            diversity; husband is a foreign citizen while wife lived in Mississippi before they
            lived in Louisiana to go to grad school; because they did not intend to stay in LA
            after grad school, wife‟s citizenship remained in MS
                 i. Court also recognized judicial inefficiency that would be caused by
                     allowing husband to sue in federal court and not the wife
        b. Party asserting diversity jurisdiction has burden of proving its existence
        c. Citizenship determined at time of lawsuit‟s commencement
   IV.  Amount in Controversy Requirement
        a. $75,000 required to be in controversy, not required to be recovered
                 i. Based on P‟s good-faith complaint, requires near legal certainty that it is
                     actually for less for court to dismiss based on this
                         1. St. Paul Mercury Indemnity Co. v. Red. Cab Co. – 1938
                ii. Court must look at circumstances at time the complaint is filed [Stewart v.
                     Tupperware Corp. – 2004 – 1st Cir.], but can look at post-filing events to
                     determine bad-faith – [Hall v. Earthlink Network,Inc. – 2005 – 2nd Cir]
        b. Court must try to put dollar amount on nonmonetary relief


                                         PAGE 3 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                 i. For injunctive relief, there are 3 options to determine if amount exists
                        1. value to the plaintiff
                        2. value to the party seeking to invoke diversity jurisdiction
                        3. Either viewpoint rule
                                a. McCarty v. Amoco Pipeline – 1979 – 7th Cir.
  V.    Corporations
        a. Can be citizens of 2 states under § 1332
                 i. State in which it is incorporated
                ii. State in which it has its principal place of business
                        1. 3 options
                                a. Brain – where the corporate decision making occurs
                                b. Rest of the body – where it does most of its business
                                c. Whole body – look at everything
        b. Courts will not assess business entity‟s corporate status for jurisdiction purposes –
            Hoagland v. Sandberg, Phoenix & Von Gontard, P.C. – 2004 – 7th Cir.
  VI.   Unincorporated Associations
        a. A citizen of any state in which it has a member
                 i. United Steel Workers of America, AFL-CIO v. R.H. Bouligny, Inc. – 1965
                    – Corporation suing union for defamation; Union tries to remove it to
                    federal court, but it‟s trapped in state court because it is a citizen of
                    wherever a member is domiciled. Court – would rather allow Congress to
                    determine jurisdiction because it is unsure of where union would be
                    headquartered.
        b. Different for class-actions
  VII. Creation of Diversity Jurisdiction
        a. Prohibited by § 1359 - only relates to creation, not necessarily destruction of
            diversity jurisdiction (courts split on this)
                 i. Kramer v Caribbean Mills, Inc – 1969 – sold interest to Panamanian
                    company to create diversity; Court: this is illegal
        b. Nominal/formal parties cannot be used to create diversity jurisdiction; courts can
            distinguish between nominal and parties with a real interest in the litigation
                 i. Rose v. Giamatti – 1989 – Ohio – MLB & Cincinnati Reds are nominal
                    parties not to be considered for diversity jurisdiction purposes
  VIII. Exceptions to Diversity Jurisdiction
        a. Domestic-relations exception exists for cases involving issuance of divorce,
            alimony, or child custody decree
                 i. Ankenbrandt v. Richards – 1992
        b. Also exception for probate matters generally
SUPPLEMENTAL JURISDICTION
  I.    2 types – although 1367 does not separate types, court still abides by rules created for
        each
        a. Pendent jurisdiction – plaintiff appends a claim lacking an independent basis for
            federal subject-matter jurisdiction to a claim possessing such a basis




                                         PAGE 4 OF 46
                             CIVIL PROCEDURE OUTLINE
                                     FALL 2007
                                     GREINER

               i. Can hear state law claims, provided that they (1)arise out of the common
                  nucleus of operative facts and (2)that it makes sense to exercise
                  jurisdiction [1367(c) factors]
                      1. United Mine Workers v. Gibbs – 1966 – supervisor of mine frozen
                          out of mining industry because he/company used different union‟s
                          workers; sued on federal claim – Labor Management Relations
                          Act, but also brought state tort claims – interference with
                          contractual relations; all based out of same case/controversy so
                          court could exercise jurisdiction
      b. Ancillary jurisdiction – plaintiff OR defendant injects a claim lacking an
          independent basis for jurisdiction by way of a counterclaim, cross-claim, or 3rd
          party complaint
               i. Extended to cross-claims, intervention, but not to permissive
                  counterclaims
      c. Must have constitutional and statutory basis for exercising jurisdiction; statutory
          permission will be determined on case-by-case basis
               i. Supplemental Jurisdiction
                      1. Owen v. Kroger – 1978 – Kroger (IA) sued OPPD (NE); OPPD
                          brought in Owen (IA AND NE); Kroger then asserted a claim
                          against Owen, destroying diversity, especially when OPPD
                          obtained summary judgment; Court: though constitutional, it
                          would violate §1332 (diversity jurisdiction statute) to allow this
              ii. Pendant Party jurisdiction
                      1. Aldinger v. Howard – 1976 – county employee fired; filed suit
                          under § 1983 against Howard and other individual defendants &
                          filed state law claim against the county, which could not be sued
                          under § 1983; Court: because county was prohibited from being
                          sued under § 1983, there is no statutory basis for suing the county
                      2. Finley v. United States – 1989 – Finley filed FTCA claim against
                          US in federal court under §1346 and state law claims against other
                          non-diverse defendants; Court: no indication that §1346 conveyed
                          jurisdiction over any claims other than those against the US; thus,
                          case has to be divided into 2 cases – 1 in federal court, 1 in state
                              a. Greiner: NO pendent party jurisdiction at all.
II.   § 1367 & Post-§1367 Cases
      a. Must be part of same case or controversy
               i. Keeps Gibbs test
              ii. Allows pendant party jurisdiction!
      b. If case is in federal court b/c of diversity jurisdiction, PLAINTIFF cannot
          bring in another party if it would destroy complete jurisdiction
               i. Original defendant – less restricted – can bring in non-diverse parties
              ii. Essentially to preserve restrictions established in Kroger – must keep
                  §1332 in tact
                      1. Guaranteed System v. American National Can – 1994 – NC –
                          Guaranteed System (NC) sued Nat‟l Can (DE) in state court, which


                                     PAGE 5 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                            removed to federal court and filed counterclaim against GS;
                            because of counterclaim, GS files suit against subcontractor –
                            HydroVac (nondiverse); Court: cannot do this because original
                            plaintiff is not allowed to destroy diversity
       c. Can decline to exercise supplemental jurisdiction if – (Gibbs factors)
                 i. Novel/complex issue of state law
                ii. State claim predominates over federal claim
               iii. District court has dismissed claims over which it has original jurisdiction
                        1. Gibbs: must get rid of supplemental claims if dismiss federal
                            claims; statute – should get rid of them; courts still follow Gibbs
               iv. Other compelling reasons
                v. Executive Software v. United States District Court – 1994 – 9th Cir –
                    petitioning for writ of mandamus to make District Court keep pendant
                    claims in federal court; Court – factors in 1367(c) restrict ability to
                    remand, and c(4) also restricts our ability – must be exceptional to remand
                        1. Most courts disagree with this; instead, most say that you can
                            remand if you feel like it
       d. Period of limitations – tolled while claim is pending and for 30 days after claim
           is dismissed unless state law provides for longer period
  III. What survived 1367 – Owen v. Kroger (expanded), Gibbs, not Aldinger/Finley
       (which prohibited pendant party jurisdiction)
  IV.  Process to determine if supplemental jurisdiction is allowed
       a. Constitutional power under Art. III, § 2 – Gibbs
       b. Statutory grant of jurisdiction - §1367
                 i. Case/controversy, but with diversity concerns
       c. Does it make sense in light of discretionary concerns in 1367 (c)
  V.   Permissive counterclaim does not need independent basis for jurisdiction
       a. Jones v. Ford Motor Credit Co. – 2004 – 2d Cir. – Constitution and 1367 require
           sufficient factual relationship to fulfill case/controversy requirement
  VI.  Judicially created jurisdiction
       a. Kokkonen v. Guardian Life Ins. Co. of America – 1994 – federal courts have
           “ancillary jurisdiction” to enforce their decrees and orders;
REMOVAL JURISDICTION
  I.   Governed by §1441, §1446-7
  II.  Defendant can move to federal court automatically – only to federal district court for
       the district/division embracing state court where action was originally filed
       a. Venue rules do not change court lawsuit is removed to
       b. Federal court gets to decide whether to keep or remand the case
       c. All defendants, other than nominal parties, must join in petition for removal.
                 i. Chicago R.I. & P. Ry. Co. v. Martin – 1900
                ii. Exception: when removal is on basis of separate/independent claim
  III. §1441
       a. Only when federal court has original jurisdiction




                                         PAGE 6 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

        b. If arising under jurisdiction is present, citizenship does not matter, but if it is
            based on diversity, cannot remove if defendant is a citizen of the state in which
            the suit was originally filed
        c. When there is supplemental jurisdiction, whole case may be removed; district
            court can then determine all matters OR remand all matters in which state law
            predominates
        d. Any action brought in state court against a foreign state (§1603a) may be
            removed; will be tried without jury; time limitations of §1446 may be enlarged at
            any time for cause shown
        e. Pg. 272 of supplement
        f. Can be removed even if state court did not have jurisdiction over that claim
IV.     All aspects of supplemental jurisdiction apply equally to removal jurisdiction
        a. Well-pleaded complaint rule applies to removal jurisdiction
                  i. Plaintiff cannot remove a state court action to federal courts because
                     defendant had interposed a counterclaim – Shamrock Oil & Gas Corp. V.
                     Sheets – 1941
        b. Complete diversity applies to removal jurisdiction
        c. Must act quickly – if you do anything in state court, may waive right to remove
                  i. Case can become removable late in lawsuit (nondiverse D drops out, etc.),
                     but 1 year after case is filed is too late
V.      What plaintiff cannot do to prevent lawsuit from being removed
        a. Fraudulently joining a defendant against whom the plaintiff has no cause of action
        b. Cannot disguise federal cause of action that would make case removable
                  i. Doctrine of artful pleading
        c. Certain causes of action are so exclusively federal in character that even if the
            plaintiff does not plead them, they will completely preempt any state cause of
            action and make any cause of action the plaintiff attempts to plead federal
            (removable).
VI.     Erroneously Removed
        a. §1447
                  i. (c) – if a case is removed erroneously, a federal court must remand it to
                     the state court.
                 ii. (d) – order remanding a case to the state court from which it was removed
                     is not reviewable on appeal or otherwise
                         1. Only cases remanded on grounds specified in §1447(c) are
                              unreviewable
                                  a. Quackenbush v. Allstate Ins. Co – 1996
                         2. Exception to this rule: §1343/1443 – preserves appellate
                              jurisdiction in civil rights cases over remanded cases
        b. If there is no jurisdiction when suit is originally filed in federal court, must
            dismiss without prejudice, not remand it.
VII.    If plaintiff dismisses federal claims after removal to defeat federal jurisdiction,
        district court has discretion to remand supplemental state claims.
        a. Carnegie-Mellon Univ. v. Cohill – 1988
VIII.   §1367 applies equally to state claims in removed cases.


                                      PAGE 7 OF 46
                             CIVIL PROCEDURE OUTLINE
                                     FALL 2007
                                     GREINER

     a. City of Chicago v. International College of Surgeons – 1997
IX.  1441(c) and 1367(c)
     a. Can‟t remand federal questions to state court
             i. Borough of West Mifflin v. Lancaster – 1995 – 3d Cir
                     1. 2 black guys harassed/arrested by mall security cops; sued under
                         §1983 and under state law claims;
                     2. Court exceeded its authority by remanding claims using §1441(c)
                         claims
     b. Burnett v. Birmingham BOE – 1994 – AL
             i. weren‟t being paid according to job classification so they sued BOE in
                 state court for writ of mandamus
     c. Both cases removed to federal court under §1441 / §1443 (civil rights cases)
     d. Plaintiffs file motion to remand in both cases
             i. West Mifflin – cannot remand federal question claims
            ii. Burnett – must be separate/independent claims for §1441(c) to apply at all
                     1. What is use of §1441(c) if this is all encompassed by §1367(c)?
                             a. Allows remand of entire case, including federal questions,
                                 while §1367 seems only to allow courts to decline to
                                 exercise jurisdiction over supplemental claim, which would
                                 split the lawsuit.
     e. 1441(c) – only way to remand federal question, and even then, only on particular
        interpretation
     f. Is 1441(c) unconstitutional in light of Gibbs’ same case/controversy
        constitutional test if 1441(c) requires separate & independent action?
X.   Process for Remanding – what court does
     a. Do state law claims fit into §1367(a)? Are they part of same case/controversy?
             i. If no, remand
     b. If yes, can you send them back because of 1367(b) – complete diversity?
     c. Does court want to exercise jurisdiction under 1367(c) – discretion?
             i. Courts split on strictness of 1367(c).
ABSTENTION
I.   When the court refuses to hear a case that it has jurisdiction over
II.  Typically appropriate in 3 areas
     a. Cases presenting constitutional issue, but where a state law issue is determinative
     b. Cases where federal court‟s exercise of jurisdiction would interfere with coherent
        policy that is a matter of substantial policy concern. – Burford v. Sun Oil Co.
     c. Cases where federal jurisdiction has been invoked for the purpose of restraining
        state criminal proceedings or of collecting state taxes – Younger v. Harris
     d. New factor established in Colorado River: Though very limited, judicial
        efficiency can allow federal courts to refuse to exercise jurisdiction.
             i. Because the system is so well-established in state court, would be bad for
                 federal court to exercise jurisdiction
            ii. Colorado River Water Conservation District v. United States – 1976
                     1. Clark v. Lacy – Asking court for stay to allow state case to proceed
                         to judgment; court comes up with 10 factor test that essentially


                                     PAGE 8 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                            allows court to do whatever it wants; stretches Colorado River
                            doctrine in ways never intended; no statutory basis for not deciding
                            case – just wanted to hear it all at once.
PERSONAL JURISDICTION
  I.   Types
       a. In rem jurisdiction – lawsuit over a piece of property; i.e. In re The Nautilus
       b. Quasi-in-rem jurisdiction – against a person, but limited to a piece of property
           within the court‟s jurisdiction
       c. In personam – between two people
                i. Waivable – can agree to be sued in whatever court lawsuit is filed in
               ii. Defendant bears burden of raising personal jurisdiction question
              iii. Due process restrictions on state jurisdiction are considerably greater than
                    those on choice of law – Allstate Ins. Co. v. Hague - 1981
  II.  Must have constitutional and state grant of jurisdiction
       a. Typically done via long-arm statutes – usually grant jurisdiction up to limits of
           constitution
  III. Pennoyer v. Neff – can exercise jurisdiction over non-resident if you serve D
       personally – overruled
       a. Good law from P v. N: due process clause dictates when exercising jurisdiction is
           appropriate
  IV.  International Shoe doctrine
       a. Court may exercise personal jurisdiction over a defendant if D has such minimum
           contacts that it would be fair to require her to defend actions in the state.
       b. Lawsuit must arise out of contacts to state
  V.   Application of minimum contacts standard
       a. One contact is sufficient when it is substantial enough – McGee v. International
           Life Insurance Co – 1957 – insurance policy between CA resident and AZ
           corporation; Court: can be subject to California‟s courts because contract had
           substantial connection with that state; focuses more on CA‟s interest in litigating
           suit rather than D‟s due process rights
       b. Plaintiff‟s contacts with forum state not required to be minimum – Keeton
       c. Effects test – committed an intentional act; expressly aimed at the forum state;
           causing harm, the brunt of which is suffered – and which the defendant knows is
           likely to be suffered-in the forum state – Calder v. Jones – 1984
                i. No first amendment problems
  VI.  General jurisdiction v. specific jurisdiction
       a. General jurisdiction – requires substantial or pervasive contacts, but suit need not
           arise out of contacts
                i. Helicopteros Nacionales de Colombia v. Hall – 1984 – Peruvian entity
                    being sued in TX, but lawsuit did not arise out of „contacts‟ it had with
                    TX; thus, must be general jurisdiction, but court found that there were not
                    enough contacts with the state so that the corporation could be sued in TX
                    under general jurisdiction.




                                         PAGE 9 OF 46
                               CIVIL PROCEDURE OUTLINE
                                       FALL 2007
                                       GREINER

                          1. Question about if Fair Play & Substantial Justice factors apply to
                              general jurisdiction; 2nd Court has held that it did – Metropolitan
                              Life Insuracnce Co. v. Robertson-CECO Corp - 1996
        b. Specific jurisdiction – single act, continuous but limited contacts; must arise out
            of contacts
VII.    Purposeful Availment
        a. Must have purposefully availed itself of the privilege of conducting activities
            within the forum state, thus invoking the benefits and protections of its laws.
            Hanson v. Denckla – 1958 – rich lady moved to FL from PA after creating trust;
            FL tried to exercise jurisdiction over DE bank that was trustee for bank; Court:
            DE bank cannot be forced to litigate in FL simply b/c lady moved there after
            creating trust; Cannot be haled into court based on the unilateral acts of another –
        b. Must reasonably expect to be haled into court; did not seek any direct benefit
            from OK activites – World-Wide Volkswagen Corp. v. Woodson – 1980
        c. Purposeful availment requirement; if met, must present compelling case with
            other factors (of fair play, etc.) for jurisdiction not to be appropriate – Burger
            King v. Rudzewicz – 1985;
        d. Kulko v. Superior Court – divorced parents; father travels to CA for kids;
            articulates effects test, but does not rely on it; purposeful availment – courts
            regularly use it to decide against jurisdiction against individuals
        e. Contacts cannot be random, isolated, or fortuitous – Keeton v. Hustler Magazine,
            Inc. – 1984;
VIII.   Stream of Commerce contacts
        a. Typically insufficient to establish minimum contacts
                  i. Asahi Metal Industry Co. v. Superior Court – 1987 – Asahi manufactured
                     tire valve, last remaining suit in lawsuit against various parts of
                     motorcycle involved in accident that killed rider; indemnification suit left;
                     is it enough to put a tire valve into stream of commerce? Court: Definitely
                     not, but split as to why
                 ii. Courts split on whether they adopt O‟Connor‟s purposeful availment test
                     or Brennan‟s stream of commerce test (which says that placing a product
                     in the stream of commerce is enough)
                          1. Application of the “additional conduct” test – Parry v. Ernst Home
                              Center Corp. – 1989 – UT – knew product was going to be sold in
                              western US, but not in Utah, specifically. No other conduct that
                              would establish jurisdiction.
               iii. Foreign defendants place a stricter minimum contacts requirement – Asahi
IX.     Federal Court Jurisdiction over Foreign Defendants – Rule 4 – Service of Process
        a. Originally restricted by state‟s long-arm statute, which forced defendant to have
            minimum contacts with the forum state rather than country as a whole – Rule
            4(k)(1)(A) – federal court piggy backs on long-arm statute of state in which it
            sits
                  i. Omni Capital Int’l v. Rudolf Wolff & Co. – 1987 – jurisdiction
                     unobtainable over foreign defendants



                                       PAGE 10 OF 46
                         CIVIL PROCEDURE OUTLINE
                                 FALL 2007
                                 GREINER

         ii. This rule “incorporates” 14th Amendment for federal courts, limiting their
             exercise of jurisdiction by:
                 1. state long-arm statute
                 2. Constitution
                         a. 14th Amendment Due Process (Int‟l Shoe)
                                  i. When foreign defendant, needs minimum contacts
                                      with the country rather than with state. Go-Video,
                                      Inc. v. Akai Electric Co. – 1989 – 9th Cir.
                                           1. Sherman 1 – Companies not selling
                                               necessary parts to prevent movie pirating.
                                           2. Minimum contacts for nation – probably
                                               kitchen sink approach, like for states.
                         b. 5th Amendment Due Process
b.   Rule 4(k)(1)(B) – service of process 100 miles from place from which summons
     issues – for parties joined under Rules 14 & 19
c.   Rule 4(k)(1)(C) – nationwide service of process for defendant subject to federal
     interpleader jurisdiction
d.   Rule 4(k)(1)(D) – service rule federal court may use when federal statute
     authorizes jurisdiction
          i. What triggers national contacts approach
                 1. federal court
                 2. federal law
                 3. Worldwide service of process
                 4. If Congress gives worldwide service of process to state tort claim,
                     probably national contacts approach
         ii. What is limit of 14th amend with fed law cause of action with WW SOP?
                 1. Supreme Court has not addressed this issue
e.   Rule 4(k)(2) – limited federal long-arm provision that applies to defendants
     who are not amenable to suit in any one state; reaction to Omni
          i. For this to apply, 3 things must exist
                 1. jurisdiction consistent with constitution
                         a. Most courts have not found that fairness factors articulated
                             by Oxford First Corp. v. PNC Liquidating Corp – 1974 –
                             PA (extent of contacts, inconvenience, judicial economy,
                             locus of discovery, interstate character/impact of D‟s
                             activities) are required by constitution; if minimum
                             contacts, then 5th Amendment is satisfied
                 2. federal law – subject matter jurisdiction
                 3. Not subject to service of process in any other state
                         a. Under this rule, question of who has the burden of proving
                             that amenability of D in any of the states. Courts are split.
                                  i. One option: burden-shifting framework – D must
                                      provide evidence that it is subject to jurisdiction in
                                      st, plaintiff can then respond.
                                           1. US v. Swiss American Bank – 1999 – 1st Cir.


                                PAGE 11 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

                     ii. Some courts argue that venue constraints in Section 12 must apply,
                         meaning that defendant must have minimum contacts under long-arm
                         statute or that it must have contacts to satisfy venue provision
                    iii. Under Rule 4(k)(2) – foreign defendant must have sufficient contacts with
                         the US as w hole that will satisfy 5th Amendment
                             1. Pyrenne, LTD v. Wocom Commodities, LTD. – 1997 – IL (but
                                 dismissed on forum non conveniens grounds – there was a more
                                 convenient forum).
            f. Rule 4(n)(2) – gives federal courts original quasi-in-rem jurisdiction
                      i. Must comport with International Shoe requirements when defendants are
                         absent.
                             1. Shaffer v. Heitner
TAG JURISDICTION
   I.       Not all exercise of jurisdiction is subject to the minimum contacts/fair play test.
            a. Burnham v. Superior Court – 1990 – Burnham served with divorce papers while
                visiting child in CA; judgment - jurisdiction established when the defendant is
                served while in the state – Due process requirements are automatically met if he‟s
                in the state; Brennan – took advantage of CA‟s resources so that exercising
                jurisdiction is okay
                      i. May just be that they don‟t want to punish him for seeing his kids
            b. Grace v. MacArthur – 1959 – AR – defendant served while in a plane over
                Arkansas; air above state is territory of the state, despite commerce law providing
                that air is United States‟ territory; commerce is different from jurisdictional qs
INTERNET JURISDICTION
   I.       Griffis v. Luban – 2002 – MN state court – defamatory statements online; no personal
            jurisdiction over D; wants something more than the effect was in AL, but no
            inclination as to what that is.
   II.      Interactivity of website can be dispositive factor
            a. Zippo v. Zippo – 1997 – PA – interactivity of website can suffice for purposeful
                availment; passive websites do not
Advice from Greiner:
Think about – if you were writing statute/constitutional provision that specified when you could
exercise in personam jurisdiction. What kind of factors can you list that a court should consider?
    Minimum contacts
    Purposeful availment
    Specific v. general jurisdiction
            o See if you can figure out a specified relationship to each other
VENUE
   I.       Governing statutes
            a. § 1391
                      i. If diversity jurisdiction, venue must be
                             1. District where any D resides – if all in same state
                                      a. Typically, residence=domicile, but not always
                             2. District where events leading to claim occurred
                                      a. Can be multiple districts


                                          PAGE 12 OF 46
                               CIVIL PROCEDURE OUTLINE
                                       FALL 2007
                                       GREINER

                       3. District that has personal jurisdiction over D
                                a. Fallback provision – rare!
               ii. If arising-under jurisdiction, venue must be
                       1. District where any D resides - if all in same state
                       2. District where events leading to claim occurred
                       3. District where D may be found (tag jurisdiction)
             iii. If a corporation, venue is in district that has personal jurisdiction; if there
                   is more than one, look at contacts with the district as if it were a different
                   state.
       b. §1404
                i. If you have filed lawsuit in proper place, but it will be more convenient
                   elsewhere, may transfer it to other districts where it might have been
                   brought
       c. §1406
                i. If you have filed lawsuit in improper place, can dismiss the case or
                   transfer it to any district where it could have been brought
               ii. Must raise timely/sufficient objection
       d. §1407 – provides for temporary transfer to one district of related complex cases
          such as multidistrict antitrust actions.
                i. Requires panel on multidistrict litigation to remand cases consolidated
                   under §1407 to their original courts for trial
                       1. Lexicon Inc. v. Milberg Weiss Bershad Hynes & Lerach - 1998
II.    General Info
       a. Can waive venue (although courts have been reluctant to allow this)
       b. Suits apparently covered by §1391 may be covered by other federal law
       c. Local actions – when action relates to interests in land, must be prosecuted in
          county/district in which land is located
       d. Plaintiff‟s choice of venue should rarely be distubed
       e. What various venue statutes are based on
                i. Where subject of action or part thereof is situated
               ii. Where cause of action, or part thereof, arose/accrued
             iii. Where some fact is present/happened
              iv. Where defendant resides
               v. Where defendant is doing business
              vi. Where d has office/place of business, agent, representative, or where
                   agent/representative resides
             vii. Where plaintiff resides
            viii. Where plaintiff does business
              ix. Where defendant may be found
               x. Where defendant may be summoned or served
              xi. In the county designated in complaint
             xii. In any county
            xiii. Where seat of govt is located
III.   Cases



                                      PAGE 13 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

       a. Can only transfer venue to a district in which the original lawsuit might have been
           brought, meaning that district must be able to exercise personal jurisdiction
                i. Hoffman v. Blaski – 1960 – filed suit in TX; transferred to IL; SC: must
                   have been able to originally bring lawsuit in the district; does not matter
                   that D requested it;
       b. Can differentiate between residents/nonresidents when making venue rules
                i. Burlington Northern RR Co. v. Ford – 1992
       c. In diversity cases, the law applicable in the transferor forum follows the transfer.
                i. Van Dusen v. Barrack – 1964
               ii. Some disagreement about whether this applies to federal claims or not
                   since there are deep splits in interpreting federal law
       d. In diversity suit, the transferee forum is required to apply the law of the transferor
           court, regardless of who initiates the transfer.
                i. Ferens v. John Deere Co. – 1990
       e. §1406 authorizes the transfer of an action, even if the transferor court lacks
           personal jurisdiction.
                i. Goldlawr, Inc. v. Heiman – 1962
FORUM NON CONVENIENS
  I.   court may resist imposition upon its jurisdiction even when jurisdiction is authorized
       by the letter of a general venue statute.
       a. Gulf Oil Corp. v. Gilbert – 1947 – lots of factors to consider, but mainly interest
           of parties
  II.  If moving would be disadvantageous in terms of statute of limitations or witnesses,
       defendant must waive these issues – only applicable to §1404, not to §1406
       a. Piper Aircraft Co. v. Reyno – 1981 – airplane crash – Scottish decedents;
           manufactured in US; owned and operated by UK/Scottish entities; Scottish
           components that could allow lawsuit to be tried there; Court: not okay to refuse
           transfer because substantive law is less favorable to plaintiff, but if there‟s no
           available remedy, this is a big consideration; has to consider what law would
           apply and then what result would likely be; before transferring to Scotland, US
           plaintiffs must allow themselves to be impleaded in Scotland; doesn‟t care that
           Scotland will have to apply PA law if issue is with propeller rather than pilot;
           doesn‟t want to split case because of different results that are possible.
  III. Increase in forum non conveniens litigation
       a. US court system provides attractive institutional option for foreign plaintiffs
                i. Contingent fee, extensive discovery, etc.
       b. Internationalization of product-related injury claims against United States
           companies
       c. Human rights and incorporation of international law into domestic law created
           niche for plaintiffs living abroad to file suit in US
  IV.  Must be another more convenient forum where plaintiff can obtain adequate relief
       a. But see – Islamic Republic of Iran v. Pahlavi – 1984 – NY – dismissed case
           despite lack of another forum, saying this was just the most important factor
       b. International tribunal not necessarily sufficient to obtain relief



                                        PAGE 14 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

                 i. Nemariam v. Federal Democratic Republic of Ethiopia-2003 – DC – no
                    certainty of getting relief for a meritorious claim, thus no dismissal
CHOICE OF LAW
  I.   Only an issue when there is diversity jurisdiction, which is always based on a state
       law claim
  II.  Applicable law: 28 U.S.C. §1652 – Rules of Decision Act (RDA)
  III. Original doctrine: general law exists, and judges only say what it is; in doing so, they
       are not bound by the decisions of other judges in the court system; instead, they look
       at all sources of law and proclaim what the law is, unless legislature passes a law –
       required to accept this.
       a. Swift v. Tyson – 1842 – Tyson gave check to swindler, who signed over check to
           Swift; Tyson refused to pay Swift since land he originally purchased with check
           was fraudulently sold; question: does RDA require federal courts to comply with
           state legislative acts and judicial decisions? Court: just the statutory laws.
       b. Problem with Swift
                 i. People manipulate the system to get the best law for them
                         1. Black & White Taxicab C. v. Brown & Yellow Taxicab Co. – 1928
                             – one taxi company had contract with train station not to allow
                             other taxi company to be at train station; to sue the disfavored taxi
                             company, the favored company reincorporates in another state and
                             sues under diversity jurisdiction so that “general law” will apply
                             and the contract will be enforced.
                ii. Despite efforts at uniformity, if legislature in one state passed the law and
                    legislature in another state passed a different law, there would be conflict.
                    State judges also continued to interpret the law as they wished.
  IV.  Erie Doctrine: there is no distinguishing between statutes and state common law;
       there is no “general law” (or federal common law); Constitution granted power over
       tort, contract, etc. law to states; thus, allowing federal common law to govern it would
       be unconstitutional
       a. Erie R. Co. v. Tompkins – 1938 – Tompkins on parallel path to railroad, when
           train came by with something protruding from open door and severs Tompkins
           arm; sues for negligence based on open door; PA law would make Tompkins a
           trespasser with no duty owed to him; general law would allow him to recover.
       b. Rule: federal courts must apply the state law of the state in which they sit.
       c. How to choose between federal and state law
                 i. Substance vs. procedural?
                ii. Right vs. remedy?
               iii. Vitally vs. formally/negligibly
               iv. Alters result vs. doesn‟t matter
                v. Is there a conflict? vs. Can both apply?
  V.   Post-Erie Case History
       a. Substantive versus Procedural
                 i. If the procedural rules affect how case will turn out, must apply state law.
                         1. Guaranty Trust Co. v. York – 1945 – Guaranty got people to buy
                             stocks for their bonds, making them the last to recover after it goes


                                         PAGE 15 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

                           bankrupt; sued, but statute of limitations different in state/federal;
                           must use state limitations statute
                               a. not constitutional compulsion, but matter of policy
                      2. Problem: when do procedural rules not affect outcome?
      b. Administrative efforts to eliminate suits in federal courts merely to avoid state
         rules
              i. Rule 3 (filing complaint = statute tolled) not to govern questions
                 concerning tolling of statutes of limitations; thus, state law would
                 determine in diversity when the statute was tolled.
                      1. Ragan v. Merchants Transfer & Warehouse Co. – 1949 – lawsuit
                           filed within 2 year statute of limitations, but not served until after;
                           KS law dictated serviced must be made within 2 year period, but
                           Rule 3 said that suit was commenced by filing of the complaint.
             ii. Federal court must apply state statute requiring security-for-expenses
                 bond, even though federal rule does not require bond.
                      1. Cohen v. Beneficial Industrial Loan Corp – 1949 – Court: Rule did
                           not contradict NJ statute, but was addressed to independent
                           concerns.
            iii. If state courts closed to corporation, then it cannot maintain a diversity suit
                 in that state.
                      1. Woods v. Interstate Realty Co. – 1949 – may have been overruled
VI.   There are different tests based on how the federal rule was promulgated.
      a. Hanna v. Plumer – 1965 – Mass requires service in person, but Rule 4(d)(1)
         allowed service to be made by leaving summons/complaint with wife; Court:
         federal rule applies; distinguished from Ragan based on intent to govern
      b. Types of rules
              i. If a constitutional rule, then it applies regardless of any state law.
             ii. If it is a conflict between a federal statute and a state law, the issue is
                 whether Congress had the authority to enact the federal statute.
                      1. If arguably procedural, federal statute must be applied.
                               a. Stewart Organization, Inc. v. Ricoh Corp. – 1988 – upheld
                                   application of §1404, which mandates case-by-case
                                   consideration, over a state practice that refused to enforce
                                   forum selection since §1404 is arguably procedural.
                                        i. Heavy presumption that federal statute will apply
                      2. Based on Rules of Decision Act (?) – as interpreted in Erie?
            iii. If it is a conflict between a Federal Rule and state law, the federal rule will
                 apply since Rules Enabling Act gives them authority, as long as they do
                 not abridge, enlarge, or modify a substantive right; should not construe
                 rules narrowly to avoid conflict
                      1. Hanna
                      2. If it does not abridge, enlarge, or modify substantive rights in the
                           guise of regulating procedure, rule is within ambit of congressional
                           power.
                               a. Sibbach v. Wilson & Co. – 1941


                                      PAGE 16 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

                               b. Procedural rules which “incidentally” affect substantive
                                    rights are permissible
                                         i. Burlington Northern R.R. Co. v. Woods – 1986 –
                                            Appellate procedure rule 38 okay because it “affects
                                            only the process of enforcing litigants‟ rights and
                                            not the rights themselves.”
              iv. If it is a conflict between a federal judicial practice and state law, state law
                   should apply if the issue is outcome-determinative or if it concerns
                   substantive law.
                       1. Hanna
       c. Courts can avoid these types of considerations by denying that there is a direct
          conflict between the rules.
                i. Walker v. Armco Steel Corp. – 1980 – no conflict between Rule 3 service
                   requirement and Oklahoma‟s law requirement because Rule 3 only
                   prescribed point for calculating various time requirements under Federal
                   Rules, not statute of limitations
               ii. Contradicts what Hanna says about not interpreting rules narrowly
CHOICE OF LAW BETWEEN STATES
  I.   Procedural rules of the forum will always apply. Always have.
       a. Neumeier v. Kuehner – 1972 - NY
  II.  Originally: State where injury occurred is the state whose law would apply.
       a. Alabama Great Southern R..R Co. v. Carroll – 1893 – AL – RR company‟s
          employee injured by another employee‟s negligence in AL, but injury did not
          occur until train was in Mississippi; Court: MS law applies, even though every
          other relevant event took place in AL
                i. Important distinction because MS has fellow servant doctrine, which does
                   not allow employee to sue employer for fellow employee‟s actions while
                   AL does allow this.
  III. Can apply different state‟s laws to different questions that arise in lawsuit
       a. Babcock v. Jackson – 1963 – NY – NY residents riding to Ontario, accident there
          kills Jackson; Ontario law prevents guest in car from suing driver; NY: we might
          apply Ontario law to determine if there was negligence, but we are not using
          Ontario law to tell us if there can be a lawsuit at all.
  IV.  Apply law where accident occurred unless both driver and passenger are from the
       same state. (Another holding?)
       a. Neumeier v. Kuehner – 1972 – NY - NY Driver, Ontario passenger, Ontario
          accident – zero interest case - neither NY nor Ontario has an interest in
          prosecuting this case.
  V.   No constitutional limits on choice of state law.
PLEADING
  I.   Rule 8 – General Rules of Pleading
       a. Claims for relief - jurisdiction; entitle dot relief, demand for relief
       b. Defenses – admit/deny averments; if not enough information, say so; etc.
       c. Affirmative defenses
       d. Effect of failure to deny – when not denied, considered to be admitted


                                         PAGE 17 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

       e. Pleading to be concise and direct; consistency
                i. Can set forth multiple grounds as basis for lawsuit, etc., even if they
                   contradict each other
       f. Construed to do substantial justice.
  II.  Rule 84 – forms are sufficient under the rules.
  III. Pre-1938 – Code pleading
       a. Lots of details, used to weed out baseless lawsuits
                i. Gillispie v. Goodyear Service Stores – 1963 – insufficient connection
                   between facts and law/relief
  IV.  1938 – Federal Rules of Civil Procedure – change to notice pleading
       a. Complaint is not the time to weed out complaints; it‟s a notice device; need to
           ensure that people get their day in court
                i. Dioguardi v. Durning – 1944 – 2d Cir. – almost incomprehensible
                   complaint; court bends over backwards to allow the lawsuit to proceed
               ii. Conley v. Gibson - 1957 - short plain statement suffices
              iii. Can dismiss for having too much information (?) – Deyo v. Internal
                   Revenue Service – 2002 – CT
ANSWER TO COMPLAINT
  I.   Rule 8
       a. Defendant can admit, deny, or plead insufficient information in response to each
           allegation in the complaint.
       b. 8(b) – allows general denial, but this is generally discouraged.
                i. Can be used effectively – Ways v. City of Lincoln – Neb – denied since not
                   specifically admitted as described in terms of the general denial.
       c. 8(d) - All averments to which defendant does not specifically respond are deemed
           admitted.
  II.  When D admits to part of complaint that is later discovered to be false, he can be held
       responsible.
       a. Zielinski v. Philadelphia Piers, Inc. – 1956 – forklift case; admits to being the
           company that operated forklift, but says later that it is not, after statute of
           limitations has run. Court: must allow the case to proceed because to do
           otherwise would deny plaintiff his day in court.
                i. Compare to Beeck v. Aquaslide ‘N’ Dive Corp
  III. When a defendant denies something that is obviously true, it is likely that the court
       will deem it admitted anyway.
       a. Biggs v. Public Serv. Coordinated Transp. – 1960 – 3d Cir. – denied it was a New
           Jersey corporation via general denial.
AMENDMENTS
  I.   Rule 15 – Amended and Supplemental Pleadings
       a. Generally: to provide maximum opportunity for claim to be decided on its merits,
           not procedural technicalities; only to provide notice of nature of the claim/defense
           and transaction.
       b. Amendments – may amend pleading; if after 20 days, may have to get permission
           of court, but permission should be freely given.



                                        PAGE 18 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

       c. Amendments to conform to the evidence – may be made at any time, but failure to
           amend does not affect result of trial of those issues.
       d. Most of the time, amendment of a pleading relates back to date of original
           pleading
       e. Can file a supplemental pleading setting forth events that have happened since
           date of original pleading.
  II.  Allowing amendment to pleading when facts show it to be true is not an abuse of
       discretion.
       a. Beeck v. Aquaslide ‘N’ Dive Corp – 1977 – 8th Cir – admitted to making aquaslide
           repeatedly, but when inspected by company, it was determined that they did not
           manufacture the product in question. Appeals Court ruled that district court did
           not abuse its discretion (standard of review for amendments to pleadings).
MOTION FOR DISMISSAL (ON THE PLEADINGS)
  I.   Rule 12 (b)
       a. Defenses other than the ones listed below are made in responsive pleadings.
                 i. Lack of jurisdiction over subject matter
                ii. Lack of jurisdiction over the person
              iii. Improper venue
               iv. Insufficiency of process
                v. Insufficiency of service of process
               vi. Failure to state a claim upon which relief can be granted
                        1. if this motion is made and there are matters outside the pleading
                            presented, motion should be treated as a motion for summary
                            judgment (rule 56)
              vii. failure to join a party under rule 19
       b. Standard: a judge must treat all factual allegations in the complaint as if they were
           true and draw all reasonable inferences in favor of the plaintiff; no evidence, only
           pleadings
  II.  Rule 12 (c)
       a. Can make a motion to move for judgment on the pleadings, but if it involves
           matters outside the pleadings, it should be treated as a motion for summary
           judgment (rule 56)
       b. Usually filed after or at the same time that answer is filed while 12(b) is filed
           prior to answer.
       c. Standard: a judge must treat all factual allegations in the complaint as if they were
           true and draw all reasonable inferences in favor of the plaintiff; no evidence, only
           pleadings
  III. Cannot dismiss a case because the facts establishing a prima facie case are not
       included in the complaint.
       a. Swierkiewicz v. Sorema N.A. – 2002 – Title VII discrimination case, but facts are
           not all established in complaint; SC: do not need to provide prima facie case, just
           need have “short & plain statement of the claim showing that the pleader is
           entitled to relief.” Can be no heightened standard for pleading – rule allowing
           heightened pleading standards articulated in rule 9(b) so that must mean that that
           standard is not to be applied elsewhere.


                                        PAGE 19 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

   IV. Combining improper complaints with proper complaints does not render them all
       invalid.
       a. American Nurses’ Association v. Illinois – 1986 – 7th Cir. - pleading gender
           discrimination based on the fact that predominately male professions make more
           than predominately female jobs; comparative worth accusation; Posner: need
           more than this, but because there are other allegations that could be viable, we‟ll
           let the suit proceed.
  V.   Focus may be shifting to “showing claim to relief” rather than “short & plain
       statement”
       a. Bell Atlantic Corporation v. Twombly – 2007 – alleging Sherman 1 violation
           between major telephone companies that would prevent local phone companies
           from establishing themselves; allegation of parallel conduct without any evidence
           of specific agreement; Court: without agreement, nothing is illegal; letting this
           suit go forward would require too much discovery, etc.
PRELIMINARY INJUNCTION
  I.   Rule 65
       a. (a)(1) - Notice must be given;
       b. (a)(2) - This hearing can be consolidated with trial on the merits, and even if it is
           not consolidated, all evidence submitted for it is on the record, need not be
           admitted again.
       c. Security must be given by the applicant for the payment of losses suffered by
           party who is found to have been wrongfully enjoined/restrained (but not by US).
       d. Order -
                 i. Must include specific reasons for issuance, without reference to
                    documents
                ii. Is binding only upon parties to the action, their agents, etc. who receive
                    actual notice
  II.  Requirements to obtain preliminary injunction
       a. Likelihood of success
                 i. Includes jurisdictional issues
       b. Irreparable harm
       c. Balance the equities
       d. Not harmful to public interest
TEMPORARY RESTRAINING ORDER
  I.   Rule 65
       a. (b) – can be given without notice if immediate and irreparable injury will result
           before opposition can be heard, along with efforts to give notice and reasons why
           notice should not be required.
       b. Time requirements, not to exceed 10 days, etc. application for preliminary
           injunction should follow, and if it does not, court will dissolve TRO
NOTICE
  I.   Due Process Clause requires
       a. Notice of commencement of the action and the issues involved in it.
       b. Adequate opportunity to present their side of the case to the court.
  II.  Cases decided before Mullane‟s reasonable effort standard


                                        PAGE 20 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

       a. Need service most likely to reach the defendant - McDonald v. Mabee (1917)
       b. Statute allowing suits must expressly require notice – Wuchter v. Pizzutti (1928)
  III. Must make reasonable effort to give notice to defendants
       a. Mullane v. Central Hanover Ban & Trust Co. – 1950 – trustee suing for
           declaratory judgment that he did nothing wrong in his actions taken on behalf of
           trust; efforts to give notice: publishing a classified ad in newspaper for 4 weeks;
           no one shows up; Court: must make reasonable effort (act like you care that
           people find out about lawsuit); need not actually get notice, but effort is required.
       b. Jones v. Flowers – 2006 – when certified letter was returned because recipient no
           longer lived at address (although he was landlord), the government must make
           other attempts before selling it to someone else to make up for unpaid taxes.
  IV.  Decisions after reasonable effort standard
       a. Notice by publication and posting did not provide a mortgagee of real property
           with adequate notice of a proceeding to sell the mortgaged property for
           nonpayment of taxes. – Mennonite Board of Missions v. Adams – 1983
       b. When settling estate, executor/rix must take action certain to provide actual notice
           to creditors. – Tulsa Professional Collection Services, Inc. v. Pope – 1988
       c. Posting a summons on the door of a tenant‟s apartment is insufficient. – Greene v.
           Lindsey – 1982
       d. Mailing to last known address + publication in local newspaper sufficient when
           location is unknown – Dobkin v. Chapman- 1968 – NY Court of Appeals
       e. If known to be insane, committed to hospital, and person does not have guardian,
           ordinary measures – i.e. mail – is insufficient. – Covey v. Town of Somers – 1956
       f. No special rule required for individuals in the custody of the U.S. – Dusenbery v.
           United States – 2002
       g. Summons in small claims cases has to include that defendants could appear by
           written pleading and inform them that they had a right to request change of venue.
           - Aguchak v. Montgomery Ward – 1974 – Alaska
OPPORTUNITY TO BE HEARD – PROPERTY INTERESTS
  I.   3 factors determine if due process consideration has to be applied
       a. Private interest affected by official action
       b. Risk of erroneous deprivation/probable value of procedural safeguards
       c. Government‟s interest – includes function, burdens
  II.  Prejudgment garnishment of wages without notice and a hearing violates Due Process
       Clause; also deprives defendant of current use of money.
       a. Snaidach v. Family Finance Corp. – 1969 – wages garnished the same day he
           received notice of hearing; court: unconstitutional to deprive defendant of wages
           without notice/hearing.
  III. Evidentiary hearing required for termination of welfare benefits (Goldberg v. Kelly),
       but not for termination of disability benefits.
       a. Matthews, Secretary of Health, Education, and Welfare v. Eldridge – 1976 –
           although required for welfare benefits, worker‟s compensation is not dependent
           on financial status, thus likely to be less of a burden for families on worker‟s
           comp if it is suspended; burden on government = substantial to continue giving



                                        PAGE 21 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

           out money to then determine that they were incorrect; extensive process before
           terminating benefits that are sufficient.
  IV. If interests remain extant, when they remove as to a specific person, removal must be
      accompanied by due process regardless of if state can rescind it or not.
  V.  Difficulty in determining standard
      a. Mitchell v. W.T. Grant Co. – 1974 – sequestration application for goods bought;
           court found method constitutional
      b. North Georgia Finishing, Inc. v. Di-Chem – 1975 – garnishment statute for goods
           sold/delivered; unconstitutional because 1) based on affidavit without proof of
           probable cause; no bond used; irreparable injury
      c. Connecticut v. Doehr – 1991 – attachment (lis pendens) of real estate for civil suit
           for assault and battery; unconstitutional because private interest was high, risk
           was low, and government interest was low
      d. Due process:
                 i. Notice
                ii. Opportunity to be Heard
  VI. Factors to consider in determining if due process was met
      a. Old Property (Snaidach)
                 i. Plaintiff‟s pre-existing interest in property
                ii. Risk at error
              iii. Nature of evidence/dispute (live versus documentary)
               iv. Waste of property
                v. What happens pending final decision
               vi. Bond status
              vii. Whether defendant is deprived of possession of property pending result of
                    litigation
             viii. What kind of process happens & how quick is it
      b. New property (Goldberg v. Kelly)
                 i. Risk of error
                ii. Nature of evidence/dispute
              iii. Availability of “other property” – other benefits
               iv. What happens to defendant pending final decision
                v. Reasons for the type of property
               vi. Quasi-legislative type determinations
              vii. What kind of process happens & how quick is it
OPPORTUNITY TO BE HEARD – LIBERTY INTERESTS
  I.  If state-created liberty or property interest, due process attaches and procedural
      protections must occur before deprivation.
      a. State-created interest if:
                 i. Mandatory language (state official shall do the following)
                ii. If there are conditions precedent to that shall  specified conditions under
                    which you shall do something
  II. Due process requires that procedural safeguards be taken to civilly commit a prisoner
      to a mental institution after his prison sentence has expired.



                                        PAGE 22 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

        a. Vitek v. Jones – 1980 – prisoner transferred to mental institution after psychiatrist
           found him to be insane; Court: this violates due process because it is a liberty
           interest and it has a stigmatizing effect; Notice is required, and some sort of
           representation, though not necessarily a trained lawyer.
   III. Termination of parental rights requires a case-by-case analysis to determine if legal
        counsel should be appointed.
        a. Lassiter v. Dept of Social Services of Durham County, NC - 1981 – in prison for
           mother, represented herself pro se in termination hearing; Court: not necessarily
           required by Constitution, but states can provide it if they wish; relies on Matthews
           factors, not Vitek
DISCOVERY
   I.   Purposes
        a. Preservation of relevant information that might not be available at trial
        b. Ascertaining and isolating issues that are actually in controversy
        c. Find out what testimony/evidence is available on the disputed issues
        d. Enforcement
   II.  Rule 26(f) – Conference to plan discovery
        a. Rule 16(b) – Scheduling conference/order
                i. 3 important dates
                        1. discovery closure
                        2. summary judgment motion deadline
                        3. trial date
               ii. Rule 16(c) – subjects of consideration at scheduling conference
              iii. Rule 16 – tool that encouraged judicial management during pretrial
        b. Rule 26 (a)(3) – party required to produce – name, etc. of witnesses whom party
           expects to present; designation of those witnesses who will be deposed;
           appropriate identification of each document, etc. which the party expects to offer
                i. If party does not include information on the pretrial order, then, generally,
                   it cannot be referred to in court.
                        1. Payne v. S.S. Nabob – 1962 – 3d Cir – No witnesses, etc. on pre-
                            trial order, but tried to call witnesses to prove product was
                            defective; Court: if not on pretrial order, you cannot use it.
               ii. Some courts will rely on the pretrial order rather than the pleading.
                        1. Howard v. Kerr Glass Manufacturing Co. – 1983 – 6 Cir.
   III. Rule 26 – Discovery Rule – Duty of Disclosures
        a. Rule 26(a)(1) – Mandatory disclosures;
                i. can satisfy this by describing/categorizing potentially relevant materials so
                   that opposing party may make informed decision about what to request. –
                   Comas v. United Telephone Co. of Kansas - 1995 – Kansas
               ii. 8 types of cases excused from mandatory disclosure
        b. Rule 26(a)(5) –methods of discovery = depositions, interrogatories, production
           physical/mental examinations, requests for admission
        c. Rule 26(b)(1)&(2)– scope of discovery
                i. Changed from at all relevant to relevant to claim/defense of any party, but
                   made no difference; limits on discovery


                                        PAGE 23 OF 46
                             CIVIL PROCEDURE OUTLINE
                                     FALL 2007
                                     GREINER

                     1. cost-benefit analysis on whether it is worth it to go forward in
                         some sense
      d. Rule 26(b)(3) – duty to supplement productions during discovery
      e. Rule 26(b)(4) – Expert testimony - in trial prep - depositions/interrogatories
              i. Rule 26(b)(5) – Privileged materials – keep a privilege log; must
                 return/destroy any copies of privileged materials
      f. Rule 26(c) – protective orders should be ordered to protect party from annoyance,
         embarrassment, oppression, undue burden/expense
              i. Must demonstrate with specific examples or articulated reasoning that
                 disclosure will work a clearly defined and very serious injury – Publicker
                 Indus, Inc. v. Cohen – 1984
             ii. Tendency now to agree to protective orders; as a result, all nonpublic
                 documents are designated confidential without review.
      g. Rule 33/34 –Interrogatories/Production
              i. To the scope of 26(b)
                     1. If at all relevant to subject matter, etc., interrogatories must be
                         answered. – Lindberger v. General Motors Corp. – 1972 – WI
             ii. Party has the duty to investigate to ascertain and disclose information that
                 is not within its personal knowledge but reasonably within its power to
                 obtain.
            iii. Same rules for compelling parties to comply apply to nonparties under
                 rule 45, but not for interrogatories (only for parties! Also written by
                 lawyers)
      h. Rule 30 – Depositions
              i. Rule 30(b)(6) – Want deposition on subject, but don‟t know who knows
                 about subject; request for deposition about X & respondent has to produce
                 someone who knows about X
             ii. Rule 30(c) – If there are objections, they will be noted, but the deposition
                 will continue.
            iii. Rule 30(d) – objections - non-argumentative/non-suggestive manner; can
                 only not respond to preserve a privilege, enforce a limitation directed by
                 the court, or a motion under Rule 30(d)(4).
                     1. 1 day, 7 hours; court may impose sanctions for delays, etc.
                     2. if acting unreasonably to annoy, etc. the party, may cease taking
                         the deposition.
            iv. Rule 29 – parties can change the rules for depositions and modify other
                 procedures placed upon discovery
             v. Rule 37 - Motions to compel - ask judge to force respondent to produce
                 information after repeated attempts to get it
            vi. Motions for protective orders (when deposition becomes improper)
      i. Rule 26(e) – required to supplement original productions with additional
         information once it becomes known that it is incorrect or incomplete
IV.   Discovery should be proportional, and that is to be determined on case-by-case basis.
      a. Marrese v. American Academy of Orthopaedic Surgeons – 1985 – 7th Cir. –
         Sherman 1 allegation; wanted admission records for 10 years to depose admission


                                    PAGE 24 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

           members with after they were denied; Court: this is WAY too broad; horrified;
           not proportional.
  V.   Rule 36 – Request for Admission – request to admit the truth of certain matters of fact
       or of the application of law t fact, or the genuineness of a document or other evidence
       that may be used at trial.
       a. This is conclusive evidence that cannot be contradicted at trial.
       b. If no response, the request is deemed admitted.
       c. Least used of discovery devices.
BURDENS
  I.   Two types of burdens, but little practical difference between the two.
       a. Burden of proof
       b. Burden of persuasion
  II.  If plaintiff articulates prima facie case and defendant stands mute, the defendant
       loses.
  III. Burden of proof standards:
       a. Preponderance of the evidence – standard in civil cases; reason necessary to
           depart from it
       b. Clear & Convincing Evidence – for First Amendment issues, etc.
       c. Beyond a reasonable doubt – criminal standard
SUMMARY JUDGMENT
  I.   To grant summary judgment: Could any reasonable trier of fact find for the
       nonmoving party?
       a. No genuine issue of material fact & movement is entitled to judgment as a matter
           of law
       b. There can be facts in dispute, as long as they‟re not material
       c. Must draw all favorable inferences in favor of the nonmoving party
  II.  When moving for summary judgment, the movant does not have to provide any
       evidence if the nonmoving party has not established a critical part of their case.
       a. Celotex Corp. v. Catrett – 1986 – Catrett sued Celotex for death of her husband
           caused by asbestos; she did not prove that husband died of Celotex‟s asbestos
           products, and they moved for summary judgment on that basis. Court: no need to
           prove absence of genuine issue of material fact.
                 i. Brennan‟s dissent is most often cited: 2 stages burden shifting process
                         1. initial burden of production, which shifts to the nonmoving party if
                            satisfied by the moving party
                         2. ultimate burden of persuasion, which always remains on the
                            moving party
                ii. If moving party will bear burden of persuasion at trial, that party must
                    support its motion with credible evidence
               iii. If nonmoving party would have burden of persuasion at trial, the party
                    may satisfy burden of production in 2 ways
                         1. affirmative evidence that negates an essential element of the
                            nonmoving party‟s claim
                         2. demonstrating that nonmoving party‟s evidence is insufficient to
                            establish an essential element of the nonmoving party‟s claim


                                        PAGE 25 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

   III. Question of whether reasonable jury could find in favor of the nonmoving party has
        to be considered in light of the substantive evidentiary burden required in the case.
        a. Anderson v. Liberty Lobby, Inc. – 1986 – libel suit, which requires clear and
            convincing evidence standard; Court: must consider this standard if determining if
            reasonable jury could find for nonmoving party.
                i. Plaintiff bears initial burden of proof for prima facie case
   IV.  Texas Department of Community Affairs v. Burdine – 1981 – plaintiff proved prima
        facie case; court says that defendant has burden of production, not persuasion to
        establish a genuine issue of material fact;Three step burden of proof shifting:
        a. Plaintiff: Prima facie case
        b. Defendant: Legitimate reasons for actions
        c. Plaintiff: Question the legitimate reasons
   V.   When plaintiff provides evidence to question the legitimate reasons, not entitled to
        judgment as a matter of law.
        a. Reeves v. Sanderson – goes through burden shifting process; Court says that
            though it is permissible for a reasonable jury to find for plaintiff, it is not always
            going to be the case. Thus, not entitled to judgment as a matter of law; court
            worried when P presents reason 1, D says it‟s reason 2, P proves it‟s not reason 2
            and says it must be reason 1, but there‟s really a third reason.
   VI.  Presence or lack of motive is important question in summary judgment question.
        a. Matsushita Electric Industrial Co. v. Zenith Radio Corp. – 1986 – found that the
            absence of any plausible motive to engage in the conduct charged is highly
            relevant to whether a genuine issue for trial exists within the meaning of 56(e).
   VII. This standard is the same for Rule 50 – Judgment as a matter of law
DISMISSALS
   I.   Rule 41
   II.  Voluntary Dismissals
        a. Plaintiff or Court can order voluntary dismissal of claim, which are without
            prejudice
                i. McCants v. Ford Motor Co. – 1986 – 11th Cir. – motion to dismiss so that
                    P could refile in MS where statute of limitations had not expired
        b. If plaintiff moves to dismiss after previously requesting a voluntary dismissal, the
            judgment will be considered an adjudication on the merits
        c. Must be before trial/commencement of trial
        d. If you bring a suit after previously moving for dismissal, court can order you to
            pay for costs of action previously dismissed.
   III. Involuntary Dismissal – adjudication on the merits
LAW/EQUITY
   I.   Distinction based primarily on nature of relief sought.
   II.  Matters of Law – originally heard at King‟s Bench – Right to Jury Trial
        a. Compensatory damages
        b. Punitive damages
        c. Ejectment
        d. Writs of mandamus
   III. Matters of Equity – originally heard by Chancellor – no right to jury trial


                                         PAGE 26 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

           a. Injunctions
           b. Restitution – ex: pay up front for work, but work is shoddy/incomplete; sue for
               restitution
           c. Recission
           d. Reformation of contracts
           e. Disgorgement – you agree that money shall not be invested in high risk prospects,
               but person does it anyway – may be entitled to all of the money because it‟s ill-
               gotten money
   IV.     Clean up rule in equity courts – once an equity court obtained jurisdiction of a suit
           primarily of an equitable character, the court could decide any incidental legal issues
           that arose in the course of the litigation.
   V.      “Equity aids the vigilant.”
   VI.     Equity courts assumed the power to enjoin a party from seeking relief in a law court

RIGHT TO JURY TRIAL
   I.   7th Amendment – In suits at common law, where the value in controversy shall
        exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by
        a jury shall be otherwise re-examined in any Court of the United States than
        according to the rules of the common law.
   II.  Rule 2 – There shall be one form of action to be known as “civil action.”
        a. Destroyed any distinction between law/equity.
   III. Because 7th Amendment preserves right to jury trial as it existed in common law, the
        right to a jury trial depends on if the issue would have been tried in law or equity
        courts at the time of the 7th Amendment‟s passing.
   IV.  2 step test to determine if a right to a jury exists or not.
        a. 18th century analog to determine if issue is law/equity
        b. Look at remedy to determine if remedy is law/equity – more important
                 i. Chauffeurs, Teamsters and Helpers Local 391 v. Terry – 1990 – union
                     member suing union for not pursuing lawsuit against employer on his
                     behalf; employee wants jury trial, but union does not; Court: back pay is
                     compensatory damages, and thus, there is a right to a jury trial.
                ii. Characterizing the relief sought is more important than finding a precisely
                     analogous common law cause of action.
                         1. Tull v. United States – 1987 – Gov‟t sued to impose statutory
                              monetary penalty for violations of the Clean Water Act; D –
                              historical action in debt; Govt – action in equity to abate a
                              nuisance; Court: civil penalty was a remedy enforced by law courts
   V.   Takings clause actions under §1983 are entitled to jury trial.
        a. City of Monterey v. Del Monte Dunes – 1999 – suing under §1983 on the ground
            that the city had taken D‟s property without just compensation; Court: there is a
            right to a jury trial; 4: this is like a tort claim, Scalia – all §1983 claims provide
            for jury trial
   VI.  Statutory causes of actions can create a right to jury trial if the statute creates legal
        rights and remedies.



                                         PAGE 27 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

        a. Curtis v. Loether – 1974 – refused apartment because of her race; sued under
            Civil Rights Act; Court: just because this was a statutory action that did not exist
            at time of 7th Amendment does not mean that it is prevented by the jury trial.
  VII. “public rights” exception to jury trial guarantee; administrative law proceedings do
        not require a jury trial
        a. Atlas Roofing Co. v. Occupational Safety & Health Review Commission – 1977 -
            fines imposed on Atlas after hearings before administrative law judges; Court:
            jury trial right does not exist because of its fact-finding abilities, but based on
            relief granted; 7th Amendment does not require jury trials in administrative
            proceedings in which public rights are being litigated (e.g. where Gov‟t sues in its
            sovereign capacity to enforce public rights created by statutes within Congress‟
            power).
  VIII. When there are issues of law and issues in equity in one lawsuit, judge must use
        discretion to hear issues of law first so that it will preserve jury rights.
        a. Beacon Theatres, Inc. v. Westover – 1959 – new theater to sue old theater (law),
            but before it could, old theater sued for declaratory judgment (equity), which did
            not require jury trial; Court: must hear issues of law first in order to preserve right
            to jury trial.
  IX.   Rule 38 – Jury Trial of Right
        a. To get jury trial, must demand it, if you don‟t, you waive the right
        b. Can specify issues to be tried by jury
  X.    Rule 39 – Trial by Jury or by the Court
        a. If jury trial demanded, will be granted unless parties stipulate tat they consent to
            trial by court rather than jury or unless court finds that right to jury trial does not
            exist.
        b. Court may call an advisory jury
                 i. Exercised sparingly
  XI.   Effect of an amendment that creates the right to a jury trial is unknown. Courts split.
        a. Bereslavsky v. Caffey – 1947 – 2d Cir. – Although complaint carried no right to
            jury trial, a later amendment changed relief to legal relief and gave plaintiff an
            additional ten days to demand a jury.
        b. American Home Products Corp. v. Johnson & Johnson – 1986 – SDNY - By
            requesting only initial complaint when it could have also asked for legal relief at
            that time, the plaintiff had irrevocably waived the right to trial by jury.
JUDGE/JURY ALLOCATIONS
  I.    Judge interprets matters of law while jury decides matters of fact.
        a. Markman v. Westview Instruments, Inc. – 1996 – issue of what constitutes patent
            violation is a matter of law for the judge to decide; judges are better able to
            interpret written instruments than juries, but juries are good at making credibility
            determinations.
        b. Deciding the meaning of a contract is a question of fact.
                 i. Dobson v. Masonite Corp. – 1966 – 5th Cir – oral agreement, decision:
                     whether contract was one for services or if it was a contract for the sale of
                     timber; judge found as a matter of law that it was one for the sale of timber
                     after jury found that it was a contract for services; 5th Cir reversed.


                                         PAGE 28 OF 46
                                CIVIL PROCEDURE OUTLINE
                                        FALL 2007
                                        GREINER

       c. When there is contradictory evidence about an existence of a contract, jury
           decides subject to court‟s instructions (Rankin v. Fidelity insurance, Trust & Safe
           Deposit Co. – 1903), but when there is no contradictory evidence, the question is
           for the court (Holtman v. Butterfield – 1921 (1st Dist.).
  II.  Rule 51 – Jury Instructions
       a. Normally, court requires attorneys to submit proposed instructions, and it then
           decides which of the instructions to give.
       b. Under rules of most jurisdictions, a party cannot appeal the failure to give an
           instruction that he did not request or the giving of an erroneous instruction to
           which he made no immediate objection
       c. When a party proposes instructions that are not quite right, court has the
           responsibility to fix the error rather than not addressing the issue at all.
                i. Kennedy v. Southern California Edison Co.- 2000 – 9th Cir.- party
                   suggested instructions that were relevant, but had slightly the wrong
                   standard; court just did not address it rather than correcting the error.
                   Court: must address the issue.
  III. Rule 61 – Harmless Error
       a. If error did not affect the decision, then it was harmless and appeal will not be
           granted.
                i. Kennedy v. Southern California Edison Co. – 2000 – 9th Cir – error made
                   was not harmless error; thus, new trial necessary.
  IV.  Rule 52 – Judgment on Partial Findings
       a. Court shall state its findings, and findings of fact shall not be set aside unless
           clearly erroneous. Due regard shall be given to the opportunity of the trial court
           to judge credibility of the witnesses.
       b. Court may amend it findings (and judgment) if a party files a motion within 10
           days after entry of judgment.
       c. If a court enters judgment as a matter of law against a party, it may then find
           against that party on other claims/defenses that cannot be made without the claims
           already judged in the partial judgment.
POST-TRIAL PRACTICE
  I.    Practical Advice:
       a. Move for directed verdict at conclusion of evidence (denied)
       b. If jury rules against you, within 10 days, move for judgment as a matter of law
           (renew motion under rule 50); move for a new trial under rule 59
                i. By asking for rule 50, you allow judge to rule for you on rule 59
               ii. If don‟t request rule 50/59 relief after the verdict, you won‟t get it
  II.  Rule 50 – Judgment as a matter of law in jury trial; new trial
       a. Judgment as a matter of law
                i. If judge finds that reasonable jury would not have a legally sufficient
                   evidentiary basis to find for the party, the court may
                        1. resolve issue against the party
                        2. Grant a motion for judgment as a matter of law on a claim/defense
                           that can be upheld only with a favorable finding on the issue
               ii. Must be made before the case is submitted to the jury


                                       PAGE 29 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

       b. If the court does not enter judgment as a matter of law, the party can request it
          within 10 days.
                i. If a verdict was returned, the court may
                        1. Allow judgment to stand; order a new trial; direct entry of
                           judgment as a matter of law
               ii. If no verdict was returned, court may order a new trial or direct entry of
                   judgment as a matter of law.
       c. New trial motion – when to proceed upon appeal, etc.
       d. If judgment as a matter of law is denied, the nonmoving party may still request a
          new trial on appeal if the motion for judgment as a matter of law is reversed.
       e. Standard for Rule 50 motion is the same as a summary judgment (56)
       f. Judgment as a matter of law now incorporates what used to be judgment
          notwithstanding verdict and directed verdict
III.   Rule 59 – New Trials; Amendment of judgments
       a. A new trial may be granted if:
                i. When a jury trial was held, a new trial would have been granted in actions
                   at law.
               ii. When a bench trial was held, a new trial would have been granted in suits
                   in equity.
       b. Within 10 days of judgment
       c. 10 days to serve affidavits
       d. The court can order a new trial for any reason that would justify granting one on a
          party‟s motion.
       e. Can move to alter/amend a judgment within 10 days of entry of judgment
IV.    Standard for Rule 50/56 motions is different from Rule 59 motion; thus, judge can
       grant a new trial even when he cannot issue summary judgment or judgment as a
       matter of law.
       a. Rule 50/56 standard – no reasonable jury could find for the nonmoving party
       b. Rule 59 standard – the verdict returned by the jury goes against the clear weight
          of the evidence, is based upon evidence that is false, or will result in a miscarriage
          of justice
                i. Even where there may be “substantial evidence” which would prevent
                   direction of a verdict per Rule 50/56.
                        1. Aetna Casualty & Surety Co. v. Yeatts – 1941 – 4th Cir. – insurance
                           company suing doctor who had malpractice insurance and who
                           was sued for performing a possibly illegal abortion; insurance
                           arguing that this was an intentional tort that was not covered by the
                           insurance policy;
               ii. Not believing the evidence is grounds for a new trial, but not for a
                   judgment notwithstanding the verdict/judgment as a matter of law.
                        1. Marsh v. Illinois Cent. R. Co. – 1949 – 5th Cir – district court
                           entered JNOV, but refused new trial when he did not believe the
                           evidence presented by the plaintiff; Appellate court reversed.
                        2. Dyer v. Hastings – 1950 – Ohio App. – judgment/new trial will not
                           be granted when verdict is supported by competent, substantial and


                                      PAGE 30 OF 46
                               CIVIL PROCEDURE OUTLINE
                                       FALL 2007
                                       GREINER

                             apparently credible evidence which goes to all the essential
                             elements of the case.
                iii. Difference between standard for Rule 50/56 and Rule 59 is that the judge
                     is allowed to make credibility determinations under Rule 59, but not under
                     rules 50/56.
                          1. Dyer v. MacDougall – 1952 – 2nd Cir.
V.      Granting of a new trial is not reviewable upon appeal, except in the most exceptional
        circumstances [In Re Green’s Estate – 1944 – must be abuse of discretion]
        a. Aetna Casualty & Surety Co. v. Yeatts – 1941 – 4th Cir.
        b. Difficult to get orders of new trial reviewed because they are not final orders.
                  i. Green v. Acacia Mutual Life Insurance Co – 1951 – Ohio S.C.
        c. Very much decided by trial courts
                  i. Aid Investment & Discount, Inc. v. Younkin – 1951 – Ohio (appellate) –
                     although court regarded trial court‟s decision as erroneous, it was not
                     abuse of discretion.
VI.     If party failed to file post verdict motion pursuant to rule 50(b) or rule 59, then court
        of appeals can‟t review it.
        a. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. – 2006 – P trying to get D‟s
            patent declared invalid; D – moved under Rule 50(a) for pre-verdict judgment to
            be entered, lost, and did not file Rule 50(b) or Rule 59 post-verdict motion based
            on sufficiency of evidence; appealed to review; Court: must file post-verdict
            motion to appeal.
                  i. Need post-verdict motions to see what jury will return before
                     a)disregarding it under rule 50(b) or b)ordering new jury.
VII.    Conditional grants of new/partial trials
        a. Remittitur – reducing judgment and forcing plaintiff/defendant to accept it or
            order a new trial
        b. Additur – increasing judgment and forcing plaintiff/defendant to accept it or order
            a new trial
        c. Fisch v. Manger – 1957 – NJ S.C. – jury returned small verdict, judge ordered
            parties to consent to new amount or have a new trial; SC of NJ: This is
            constitutional action – additur/remittitur acceptable; However, the amount trial
            court ordered was too law because it used previous back injury as mitigating
            factor when it was completely healed before accident; thus, new trial for the
            purpose of determining damages only.
        d. Courts should issue judgment for reasonable amount as determined by
            trial/appellate court in granting additur/remittiturs.
                  i. Powers v. Allstate Insurance Co. – 1960 – Wisconsin – bringing its
                     standards in line with most jurisdictions
VIII.   Time Limits
        a. Rule 6(b) – allows expansion of time limits in the rules, but not for rules
            50(b),(c)(2), 52(b), 59(b),(d),(e), and 60(b).
                  i. Need finality to lawsuit – just need it to be over at some point.
                 ii. Cannot extend this deadline even by agreement between parties.



                                       PAGE 31 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

                      1. Hulson v. Atchison, Topeka & Santa Fe Ry – 1961 – 7th Cir. –
                           made oral agreement to extend deadline for judgment as a matter
                           of law motions, but court ruled that this is impermissible.
      b. Cannot amend motion under 7(b) which states grounds on which new trial should
         be granted after 10 day period – large majority.
      c. Courts can order new trial on ground that is not included in timely motion for new
         trial
      d. 59(b) must be filed within ten day period.
IX.   Relief from Judgment or Order – Rule 60
      a. Rule
               i. Clerical mistakes may be corrected by court at any time
              ii. Other reasons
                      1. Mistake, inadvertence, surprise, or excusable neglect
                      2. Newly discovered evidence which by due diligence could not have
                           been discovered in time for new trial motion under 59(b)
                      3. Fraud, misrepresentation, or other misconduct
                               a. first three must be moved for within 1 year of judgment,
                                   but 1 year ≠ always reasonable time per 60(b)
                                       i. Di Vito v. Fidelity & Deposit Co. – 1966;
                                           Schildhaus v. Moe - 1964
                      4. Judgment is void
                      5. Judgment has been satisfied, released, or discharged, or a prior
                           judgment upon which it is based has been reversed or otherwise
                           vacated, or no longer equitable that judgment should have
                           prospective application
                      6. Any other reason justifying relief – courts frequently use this
                           category for errors that should be in (1)(2) or (3), but are past the 1
                           year time limit
             iii. Must be made within a reasonable time
      b. Excusable neglect encompasses situations in which failure to comply with a filing
         deadline is attributable to negligence.
               i. 4 factors to be considered
                      1. danger of prejudice to opposing party
                      2. length of delay and its potential impact on the judicial proceedings
                      3. reason or the delay
                      4. whether moving party acted in good faith
              ii. Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. Partnership - 1993
      c. Used mostly for default verdicts (where D did not show), but generally,
         disinclination to use it in legal profession.
      d. Rule 60 is not to be used when statutory interpretation differs in later case; rule 60
         does not cover error in law.
               i. Title v. United States – 1959 – 9th Cir. – immigration act interpreted later
                  to be more favorable to the defendant; no relief available under Rule 60.
      e. Later actions by a party that contradicted position at trial are not grounds for new
         trial under 60(b)(3) [fraud, misrepresentation, misconduct].


                                      PAGE 32 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

               i. Brown v. Pennsylvania R. Co.- 1960 – 3d Cir – employee sued employer
                  for injury; P‟s doctor: increasingly difficult for P to work; D: P has fully
                  recovered; P won, but awarded less than amount sought; D later fired P
                  based on P‟s doctor‟s testimony; Court: no new trial under 60(b)(3).
       f. Difference between extrinsic (external to the trial)/intrinsic fraud (witness lied).
               i. Hazel-Atlas Glass Co. v. Hartford-Empire Co. – 1944 – D‟s own officials
                  produced article which was relied upon at trial; SC: this was fraud on the
                  court and as a result, deserves a new trial to possibly relief P from
                  judgment.
              ii. Many jurisdictions, including federal courts, permit an independent action
                  in equity to set aside a judgment.
                      1. Maschhoff v. International Union, UAW – 1977 – Michigan – only
                           extrinsic fraud justifies relief in independent action
APPELLATE JURISDICTION
  I.   Appellate Standards of Review
       a. De Novo – least deference to district court‟s opinion; starts over
               i. Used for: grants/denials of entries of judgment under Rules 50/56
       b. Abuse of Discretion
               i. Used for: discovery decisions, decisions based on rules other than 50/56
       c. Clear Error
               i. District court findings of facts – i.e. when it is tried to court, not jury or
                  where there is no right to jury trial (preliminary injunction)
              ii. Little difference in amount of deference between abuse of discretion/C.E.
       d. Plain Error
               i. An error so painfully obvious that district judge essentially should have
                  objected for the party; rarely occurs
  II.  Standards of review for Agency Law
       a. Arbitrary and capricious
       b. Substantial Evidence (may also apply to standard of law, not just facts, etc.
  III. Rules and Laws
       a. §1291 – Final decisions of district courts – Courts of appeals have appellate
          jurisdiction from all final decisions of district courts, except when suit can go
          directly to SC
       b. Rule 54(b) – When multiple claims for relief exist, court can enter final judgment
          for more than one, but less than all of the claims only when there is no just
          reason for delay; when there is no such determination and direction of judgment,
          any decision shall not terminate action for any claims or parties. This decision is
          subject to revision at any time before all claims are adjudicated.
       c. Collateral Order
       d. Rule 23(f) – court of appeals has discretionary jurisdiction over class action
          certifications; can stay proceedings if either court decides it does.
       e. §1292 – Interlocutory Appeals
               i. (a)(1) – courts of appeals have jurisdiction from interlocutory orders of the
                  district courts involving injunctions, except when it may go directly to SC



                                        PAGE 33 OF 46
                             CIVIL PROCEDURE OUTLINE
                                     FALL 2007
                                     GREINER

             ii. (b) – Double discretion (both trial & appellate courts have to agree for
                 interlocutory appeal); district court can issue interlocutory order when
                 there is substantial ground for difference of opinion and that an immediate
                 appeal from the order may materially advance the ultimate termination of
                 the litigation; does not stay the proceedings in the district court unless
                 either court orders
      f. §1651 - Writs
              i. Supreme Court and all courts established by Congress may issue all writs
                 necessary/appropriate; alternative writ or rule nisi may be issued by court
                 which has jurisdiction
IV.   Cases
      a. Appellate jurisdiction has same restrictions as subject matter jurisdictions.
         Decision can be reversed for lack of appellate jurisdiction, even when issue not
         raised in lower court; parties may not waive the requirements for an appeal;
         neither court can depart from rules of law regarding appeals
              i. Liberty Mutual Insurance Co. v. Wetzel – 1976 – P sued for violations of
                 Title VII and requested different types of relief; District court: summary
                 judgment for plaintiff, but no relief granted; D appealed to Court of
                 Appeals; SC: Court of appeals had no jurisdiction to hear the appeal
                 because it was a) not a final order since it did not address questions of
                 relief; b) 54(b) does not apply since it was a single claim action; c) §1292
                 does not apply because Liberty could not appeal from non-issuance of an
                 injunction & court did not make it available for interlocutory appeal.
      b. To be final judgment, orders need not be in one order.
              i. Jetco Electronic Industries, Inc. v. Gardiner – 1973 – 5th Cir – District
                 court dismissed 1 defendant and allowed settlement for other 2 defendants;
                 when plaintiff appealed dismissal of 1st defendant, it argued that it was not
                 a final judgment. Court: since collectively, the district court‟s orders
                 would have sufficed to be final order, we will consider it to be a final
                 order.
      c. To appeal 54(b) certification:
              i. Court of Appeals must scrutinize district court‟s evaluation of factors like
                 interrelationship of the claims (to prevent piecemeal appeals)
             ii. District court should be given substantial deference once these are met.;
                 only overturn when clearly unreasonable
            iii. Curtiss-Wright Corp. v. General Electric Co. – 1980
      d. Judicial concerns can/do override separate entry of judgment even when it can be
         decided independently.
              i. Panichella v. Pennsylvania Railroad Co – 1958 – 3d Cir. – district court
                 entered judgment separately for third party defendant; appeal court refused
                 to hear appeal
      e. Collateral Order
              i. review of an issue that is too important to deny review, but too
                 independent to wait until adjudication of the entire case
             ii. Requirements


                                    PAGE 34 OF 46
                       CIVIL PROCEDURE OUTLINE
                               FALL 2007
                               GREINER

                1. Subject matter of the order ha to be collateral to the merits of the
                    litigation
                2. Decision itself has to be final as to that issue.
                3. Appeal allowed when a dealy until judgment would make it too
                    late to resolve the issue (Here: buying a bond); Effectively
                    unreviewable unless we review it now.
                         a. Cohen v. Beneficial Industrial Loan Corp. – 1949
                4. A fourth factor that is sometimes required by the circuits – whether
                    the order presents a serious and unsettled question on appeal.
                         a. Under Seal v. Under Seal – 2003 – 4th Cir.
      iii. Jurisdiction is not appealable under Cohen doctrine.
                1. Lauro Lines S.R.L. v. Chasser – 1989 – review denied because the
                    interlocutory appeal was reviewable later; imposing significant
                    costs on the defendant is not enough to bring it within Cohen
                    doctrine.
      iv. Denial of a motion to dismiss on the ground that an extradited person is
           immune from civil process or on the grounds of forum non conveniens
           does not fall within collateral order doctrine.
                1. Van Cauwenberghe v. Biard – 1988
       v. Appeal allowed in criminal contempt charges, but not in civil contempt
           charges. - Hickman v. Taylor
f. Court can issue writ of mandamus even where there is no other basis for appellate
   jurisdiction.
        i. La Buy v. Howes Leather Co. – 1957 – doctrine of supervisory writ of
           mandamus (an appellate court supervising range of district court
           litigation); judge delegated suit to “master” to report on case; Court of
           appeals: cannot do this, and we can issue writ to make you listen to case.
       ii. Use of mandamus to review an order forcing defendant to submit to
           physical/mental examination is okay. – Schlagenhauf v. Holder – 1964
      iii. Question whether a final judgment will be an estoppel is so close to
           jurisdiction of the district court issues, court of appeals can use writs. –
           Lyons v. Westinghouse Electric Corp. – 1955 – 2d Cir.
      iv. 5 general guidelines for issuing writs:
                1. no other adequate means to attain relief
                2. whether petitioner will be damaged/prejudiced in a way not
                    correctable on appeal
                3. clearly erroneous
                4. oft repeated error/disregard for federal rules
                5. raises new/important problems
                6. In Re Cement Antitrust Litigation – 9th Cir. - 1982
g. Class certification appeals
        i. Originally - Court: class certifications are not reviewable under §1291.
                1. Death knell doctrine – solely because a decision would prevent the
                    case from moving forward does not satisfy final order requirement.
                2. Coopers & Lybrand v. Livesay – 1978


                              PAGE 35 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                 ii. Now: passed Rule 23(f) so that there is discretionary appeal of class action
                     certification.
         h. §1292(b)
                  i. Atlantic City Elec. Co. v. General Elec. Co. – 1964 – 2d Cir – because
                     allowing appeal to go forward would foreclose other party from pre-trial
                     discovery of certain facts, it is rejected.
                         1. Commonwealth Edison Co. v. Allis-Chalmers Manufacturing Co. –
                              1964 – 7th Cir. - reaches different result in similar case
                 ii. Conditional grants of liability (if A is negligent, there is no
                     indemnification for B) are not appealable because they are hypothetical,
                     advisory opinions. – Nickert v. Pugent Sound Tug & Barge Co. – 1973 –
                     9th Cir.
         i. §1292(a)(1) – purpose of this provision to permit defendant to obtain immediate
            relief from an injunction, but also to save both parties from expense of further
            litigation. – Smith v. Vulcan Iron Works – 1897
JOINDER OF CLAIMS/Parties
   I.    CLAIMS
         a. Counterclaims and Cross-Claims – Rule 13
                  i. Compulsory Counterclaims – if suit arises out of same transaction or
                     occurrence, defendant shall plead those claims.
                 ii. Permissive Counterclaims – May plead claim that does not arise out of
                     same transaction/occurrence of original claim
                iii. Counterclaim may or may not diminish/defeat the recovery sought by the
                     opposing party.
                iv. cross-claims may be plead that arise out of the transaction or occurrence
                     that is the subject matter
                 v. other parties may be joined under counterclaim/cross-claim in accordance
                     with rule 19/20
         b. Joinder of Claims and Remedies – Rule 18
                  i. Party may join as many claims, etc. as the party has against the party.
                     Permissive.
                 ii. When a claim depends on another claim‟s being prosecuted to conclusion,
                     the two claims may be joined in a single action. Fraudulent
                     conveyances(?)
                iii. Combined with Rule 20, this rule allows a party to bring as many claims as
                     it wants against another party, as long as there is one claim based on the
                     same transaction/occurrence asserted by all of the other plaintiffs and if
                     question of law/fact common to all will arise in action.
                iv. Even if claim is no permissible under another rule (i.e. 14), it can fall
                     within this rule. Schwab v. Erie Lackawanna R. Co. – 1971 – 3d Cir.
   II. PARTIES
         a. Permissive Joinder of Parties – Rule 20
                  i. Permissive joinder – All persons may join as plaintiff if claim arises out
                     of same transaction/occurrence and if any question of law/fact will be
                     common to all persons


                                         PAGE 36 OF 46
                        CIVIL PROCEDURE OUTLINE
                                FALL 2007
                                GREINER

         ii. Separate trials – court can order separate trials to prevent a party from
             being embarrassed, delayed, or put to expense by inclusion of a party
             against whom the party asserts no claim and who asserts no claim against
             the party.
b.   Third Party Practice – Rule 14
          i. Permissive, if it shifts liability; not dependent on t/o test (For insurance
             companies)
                 1. Although it is permissive, at least one court has ruled that
                     permissive/compulsory nature of claim is determined by is relation
                     to the transaction that is subject of main suit. Heintz & Co. v.
                     Provident Tradesmens Bank & Trust Co v. Kerr – 1962 - PA
c.   Consolidation; Separate Trials – Rule 42
          i. Consolidation – may order 1) a joint hearing/trial of any/all matters; 2) all
             the actions consolidated; 3) make such orders concerning proceedings
             therein as may tend to avoid unnecessary costs/delay.
         ii. Separate Trials – For convenience/to avoid prejudice, etc., court can order
             separate trial of any claim/issue
        iii. Essentially: can do whatever makes sense to try the claims
                 2. Limit: can‟t exercise its discretion in a manner that would deprive
                     party of its right to a jury trial if it could be tried another way to
                     preserve that right.
d.   Misjoinder and Non-joinder of Parties – Rule 21
       viii. Not a ground for dismissal of an action; may be dropped/added without
             problem
c.   Intervention – Rule 24
          i. Intervention of Right – can intervene in timely manner when
                 1. statute confers unconditional right to intervene
                          a. §2403(a) of Judicial Code – actions challenging
                              constitutionality of a statute
                 2. when applicant claims an interest relating to property/transaction
                     which is subject of action and action would impair applicant‟s
                     ability to protect interest
         ii. Permissive Intervention – can intervene in timely manner when:
                 1. when statute confers conditional right to intervene
                 2. when applicant‟s claim/defense and main action have a question of
                     law/fact in common
                 3. If claim is reliant on statute/order issued by government/agency,
                     the officer/agent may intervene
        iii. Procedure – Rule 5; state grounds for intervening and pleading
        iv. Smuck v. Hobson – 1969 – DC – former superintendent, member of school
             board, parents trying to intervene in lawsuit forcing desegregation; Court:
             superintendent, school board do not have individual interest in lawsuit, but
             parents do. Test: 1) interest; 2) applicant may be impeded in protecting
             his interest by the action; 3) interest is not adequately represented by
             others. Intervention of right, not permissive intervention


                                PAGE 37 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

               v. Motive for participating in suit ≠ interest. - National Resources Defense
                    Council v. NY State Dept of Environmental Conservation – 1987 – 2d Cir.
              vi. Intervention to take an appeal permissible only if decision to discontinue =
                    “gross negligence or bad faith.” – United States v. Chicago; 1990; 7th Cir.
  VII. Transaction/Occurrence test – very expansive.
        a. United States v. Heyward-Robinson Co. – 1970 – 2d Cir. – Original lawsuit:
           Subcontractor  general contractor for Navy job; Counterclaim: general
           contractorsubcontractor for Navy and Stelma job; subcontractor then sued for
           Stelma job; Court: these jobs constitute the same transaction/occurrence b/c: no
           differentiation between the two jobs on the payment, if fired from one, fired from
           both, this is thus a compulsory claim.
        b. 4 tests for same transaction/occurrence
                i. Issues of fact/law raised by claim/counterclaim largely the same?
               ii. Would res judicata bar a subsequent suit on d‟s claim absent the
                    compulsory counterclaim rule?
              iii. Will substantially the same evidence support or refute plaintiff‟s claim as
                    well as defendant‟s counterclaim?
              iv. Is there any logical relation between the claim and counterclaim?
        c. The more expansive you make the T/O test, the greater the burden of the
           compulsory counterclaim rule since if you do not assert a compulsory
           counterclaim, you cannot bring it in a subsequent suit.
RES JUDICATA – (within same court system)
  I.    CLAIM PRECLUSION – Restatement (Second) of Judgments §24
        a. Requires plaintiff to assert all matters arising out of the same incident and against
           the same party in one lawsuit.
        b. To be precluded, claim must:
                i. Be prior suit that proceeded to final valid judgment on the merits
                        1. No preclusive effect when:
                                a. Dismissal for lack of jurisdiction, improper venue,
                                    non/mis-joinder of parties
                                b. Voluntary dismissal or dismissal without prejudice
                                c. Statute or rule of court the judgment does not have
                                    preclusive effect.
               ii. Arise out of same claim as the prior suit
              iii. Parties in both suits are the same, or in privity
                        1. Gonzalez v. Banco Central Corp. – 1994 – 1st Cir. – real estate
                            company sold swampland to plaintiffs on false pretenses; 2 groups
                            of plaintiffs – Rodriguez & Gonzalez; 2 possibilities for privity:
                            (1)substantial control – power to call shots on litigation; case-by-
                            case; (2)Virtual representation-case-by-case, equitable theory;
        c. Claim = arising out of transaction or series of connected transactions
                i. Transaction: natural grouping or common nucleus of operative facts
                        1. not based on # of substantive theories, although it was previously.
                        2. not based on # of harms, substantive theories, measures or kinds of
                            relief


                                        PAGE 38 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

      d. Slight majority treat statute of limitations dismissal as judgment on merits
      e. Must be same type of claim, i.e. divorce proceeding ≠ tort action
               i. Heacock v. Heacock – 1988 – Mass – suit for assault; Court: not precluded
                  because divorce action was held previously
      f. When you could have sued for entirety of damages and you choose not to, you
         lose the right to sue for the rest.
               i. Jones v. Morris Plan Bank of Portsmouth – 1937 – SC of VA – bank sues
                  buyer for payment on car; buyer then sues bank for demanding payment of
                  the rest of the car – if you decided not to sue for whole thing as was stated
                  in the acceleration clause of the contract – you cannot ask for the rest of it.
                  Court agrees.
                       1. Acceleration in lease only applies upon termination of lease so
                          same principle does not apply. – Aiglon Associates, LTD. V. Allan
                          – 1994 – VA
      g. If you buy series of notes or a bond that includes interest coupons, an action on
         one of the notes or coupons, even though others are due, does not bar a
         subsequent action on the others. – Nesbit v. Riverside Independent District – 1892
      h. Continuing/Renewed Conduct
               i. If permanent nuisance – preclusive effect
              ii. If temporary nuisance – not necessarily preclusive
             iii. If behavior continues after suit, not claim preclusion, but issue preclusion
                  might apply to legality of behavior.
      i. Whether or not something is precluded often depends on 1) underlying
         substantive law; 2) expectations of the parties
II.   ISSUE PRECLUSSION/COLLATERAL ESTOPPEL
      a. Once an issue has been adjudicated between adverse parties, that issue cannot be
         relitigated in another lawsuit between the same parties.
      b. To be issue precluded:
               i. Issue must have been actually and fully litigated – Rst. 2d - Judgments §27
                       1. If you can define the issue as something different from what you
                          previously litigated, court may allow this.
                               a. Cromwell v. County of Sac – 1876 – county sold bonds;
                                   Cromwell tried to cash one set earlier, but the court found
                                   that they had been given falsely; for this case, Cromwell
                                   argued that this was a new issue because he was arguing
                                   based on a due course theory, which he did not raise in the
                                   first case. SC: Allowed suit to proceed; no issue preclusion
                               b. When prior decision is ambiguous on what it actually
                                   decided, doubts should be resolved against the party
                                   seeking to assert preclusion.
                                        i. Russell v. Place – 2 processes covered by same
                                            patent; first lawsuit based on one process; 2nd
                                            lawsuit based on the other, but because jury did not
                                            specify what it was relying on, could not find that
                                            the issue was precluded. Courts split.


                                     PAGE 39 OF 46
                       CIVIL PROCEDURE OUTLINE
                               FALL 2007
                               GREINER

                               ii. Some jurisdictions allow prior trial, extrinsic
                                    evidence to prove issues were litigated.
       ii. Must be necessary for decision
                1. Rios v. Davis – 1963 – TX appeals – 1st lawsuit: Dry Goods sued
                   Davis, who impleaded Rios as 3d party defendant; Jury found that
                   all were negligent and no one received damages; 2d lawsuit: Rios
                   sued Davis; Court: not precluded because the finding that Rios was
                   negligent against Davis was not necessary to the first finding; also,
                   Rios could not have appealed that finding if he wanted to do so.
      iii. Must be same issue
c. Nonmutual Collateral Estoppel – allows a new party to invoke collateral estoppel
   against a party who litigated and lost on an issue in a prior action.
        i. Defensive Nonmutual Estoppel – when a defendant seeks to prevent a
           plaintiff from asserting a claim the plaintiff has previously litigated and
           lost against another defendant.
       ii. Offensive Nonmutual Estoppel – when the plaintiff seeks to foreclose
           the defendant from litigating an issue the defendant has previously
           litigated unsuccessfully in an action with another party.
                1. Parklane Hosiery Co. v. Shore – 1979 – SEC brought suit against
                   Parklane for false/misleading statement and won; 2d suit: class
                   action against Parklane; plaintiffs asserted offensive nonmutual
                   estoppel; Court: trial courts have broad discretion in granting
                   offensive estoppel, but the general rule is that when a plaintiff
                   could have easily joined in earlier action or when it would be
                   unfair to a defendant, offensive estoppel should not be granted.
                        a. Factors to consider
                                i. Could plaintiff have joined in first suit?
                               ii. Did defendant have sufficient incentive to litigate?
                              iii. Are there procedural advantages that weren‟t
                                    available in first suit?
                              iv. Are there any prior judgments that are inconsistent
                                    with the issue in question?
                        b. [also, this does not violate right to a jury trial]
                2. When there is a judicial finding (not judgment) that conflicts with
                   prior decision (judgment), the court must consider whether the
                   inconsistency undermines the court‟s confidence in the correctness
                   of the prior decision. Errors – even harmless ones – present
                   obstacle to relying on case for issue preclusion. - Jack Faucett
                   Associates v. American Telephone & T-graph – 1984 – DC
                3. When relying on criminal guilty verdict in civil case, court must
                   consider incentives D had to litigate, procedural opportunities
                   available, and any other factors that weigh on fairness.
                4. Cannot use offensive nonmutual collateral estoppel is suits against
                   the federal government



                              PAGE 40 OF 46
                                  CIVIL PROCEDURE OUTLINE
                                          FALL 2007
                                          GREINER

                         5. Courts typically do not preclude companies involved in accidents
                            where multiple plaintiff are injured (i.e. train accident with 50
                            injuries) when 1st passenger wins.
                                a. Would have to show that it could not get into first suit.
                                b. If 1st passenger loses, 2nd passenger can try because it‟s a
                                     different party who needs his day in court.
RES JUDICATA (among different court systems)
     I.  Governing Law
         a. Constitution - Art. IV, §1 – Full faith and credit clause - Full faith and credit shall
            be given in each state to the public acts, records, and judicial proceedings of every
            other state.
                 i. Does not apply when first court is state court, 2d court is federal.
         b. §1738 – Such acts, records, and judicial proceedings or copies thereof…shall
            have the same full faith and credit in every court within the U.S. and its
            territories/possessions as they have by law/usage in the courts of such state,
            territory or possession from which they are taken.
                 i. If preclusive in first court, preclusive in second court.
                ii. “acts” does not apply to federal courts
1st suit                        2nd suit                           Law Governing
State                           State                              FFCC; 1738
State                           Federal                            § 1738
Federal                         State                              Federal Common Law
Federal                         Federal

   II.     Cases
           a. §1983 does not constitute an implied repeal of §1738; will give preclusive effect
              to claim that original court would give its decision.
                   i. Migra v. Warren City School District BOE - 1984 – Migra sued once for
                      breach of contract in Ohio state court and won; second suit: filed in federal
                      court on §1983 claims; Court: §1983 does not create an exception to
                      §1738; then looks at preclusive effect given by state court, which would
                      find
           b. Will give preclusive effect to issue that original court would give its decision.
                   i. Allen v. McCurry – 1980 - lost suppression motion based on habeas corpus
                      in state court & wanted to relitigate it under §1983 in federal court; issue
                      preclusion applied.
           c. When there is a congressional grant of exclusive federal jurisdiction, 2 step test
              for a claim when it was first litigated under a state statute:
                   i. Would state claim-preclusion law preclude federal suit?
                  ii. If yes, federal court must determine whether relevant federal law contains
                      an implied/explicit exception to §1738?
                          1. Marrese v. American Academy of Orthopaedic Surgeons – 1985
                 iii. Because virtually every state follows prior jurisdictional competency rule
                      (prohibits preclusion of a claim beyond the rendering court‟s jurisdiction),
                      most claims are not precluded.


                                         PAGE 41 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                        1. However, SC has found that DE settlement is entitled to full faith
                             and credit, despite including claims with exclusive federal
                             jurisdiction. – Matsushita Electric Industrial Co. v. Epstein – 1996
               iv. If plaintiff chooses not to sue in federal court when he could have, he is
                    subject to usual rules of preclusion once he opted to appeal a state agency
                    determination in state court.-Kremer v. Chemical Construction Corp. 1982
        d. Federal common law dictates that the state law from the first lawsuit determine
           the preclusive effect of the first lawsuit.
                 i. Semtek Int’l Inc. v. Lockheed Martin Corp. – 2001 – first suit: removed to
                    fed court in California b/c of diversity, but dismissed on statute of
                    limitations grounds; second suit: filed in Maryland, which was dismissed
                    on res judicata grounds; SC: federal common law governs this question,
                    but federal common law requires the law of the state in which the first
                    court sat to determine the preclusive effect of the first suit.
        e. A state court‟s decision regarding the preclusive effect of a prior federal judgment
           precludes future litigation of the issue, even if the state court‟s decision was
           wrong. – Parsons Steel, Inc. v. First Alabama Bank - 1986
        f. If P does not bring state claim under pendent jurisdiction when he could have,
           those state claims are precluded if the federal court would have exercised
           jurisdiction over the claims. – Restatement 2nd, Judgments §25, comment e
                 i. Common nucleus of operative fact
                ii. How prior court disposed of federal claim
        g. Likely that you can give more preclusive effect than state in which rendering
           court sits would give.
                 i. Hart v. American Airlines, Inc. – 1969 – airline crash; Court: allows
                    another state to preclude issue even though original court would not; not
                    sure that this survived Semtek, but most people assume you can give
                    greater preclusive effect than rendering court‟s state.
        h. Most courts require mutuality for issue preclusion if the rendering court requires
           it, but some do not, i.e. Finley v. Kesling – 1982 – Ill. Appellate court
RES JUDICATA – ADMINISTRATIVE TRIBUNAL
  I.    Restatement (Second), Judgments §83
        a. To be valid and final (and thus be preclusive), administrative decision must have:
                 i. Adequate notice to persons who are bound by adjudication
                ii. Right to present evidence and legal argument and fair opportunity to
                    rebut evidence and argument by opposing parties
               iii. Formulation of issues of law and fact in terms of the application of rules
                    t parties about transaction, etc.
               iv. Rule of finality
                v. Other procedural elements necessary to constitute sufficient means of
                    conclusively determining the matter in question
                        1. [if one of these is missing, it is a due process violation]
        b. Not preclusive in other tribunals if other forms of relief are possible
        c. Not preclusive if incompatiable with legislative policy that:
                 i. Says it does not have preclusive effect


                                         PAGE 42 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

                ii. Says 2nd tribunal is free to make an independent determination of the issue
                    in question.
   II.  Will generally give issue preclusive effect to state tribunals when certain
        requirements are met (essentially due process), including:
        a. Agency had to be fact-finding, not making rules
        b. Acting in judicial capacity
        c. Factual issues had to be properly before it
        d. Parties had to have adequate opportunity to litigate
                 i. University of Tennessee v. Elliott – 1986 – fired from UT, allegedly based
                    on race; in AA, which issued decision, but not on §1983 & Title VII
                    claims b/c no jurisdiction; 2d suit: federal court; No preclusive effect for
                    Title VII claim b/c not given to federal agency for this claim; preclusive
                    effect for §1983 claim
          th
   III. 11 Circuit: no preclusive effect to claims litigated in AA, despite arguments being
        used in Migra, Elliott, etc. in Supreme Court; Gjellum v. City of Birmingham – 1987 –
        police officer appealed firing to personnel board; city appeals board decision, and
        Gjellum is not allowed to intervene; Gjellum then brings §1983 claim in federal
        court; Court: not precluded because he was not allowed into previous lawsuit
TITLE VII
                                Issue                             Claim
Court                           Yes (Kremer)                      Probably (Kremer)
Agency                          No (Elliot)                       Probably Not (Elliot)

§1983
                                Issue                            Claim
Court                           Yes, Allen                       Yes, Migra
Agency                          Yes, Elliot                      ?? 11th Circuit: NO (Gjellum)

LAW OF THE CASE/JUDICIAL ESTOPPEL
  I.   Law of the case - An issue of law, once determined, cannot generally be relitigated in
       subsequent stages of the same lawsuit. Must be same lawsuit.
  II.  Judicial estoppel - a party that has won a suit on one ground may not turn around and
       in another case obtain another judgment on an inconsistent ground. Must be same
       parties.
       a. Bethesda Lutheran Homes v. Born - 2001 – 7th Cir. – in first hearing, Bethesda
           argued (and Court agreed) that Medicaid laws allowing residency requirements
           were unconstitutional; 2d hearing: Bethesda arguing that the requirements are not
           unconstitutional, but that the government officials violated regulations. Court: this
           violates law of the case (and judicial estoppel?). So much that Rule 11 sanctions
           are necessary.
SANCTIONS/CONTEMPT
  I.   Rule 11 – Sanctions possible when lawsuit:
       a. filed for improper purpose
       b. based on improper law or frivolous argument
       c. is without evidence


                                        PAGE 43 OF 46
                                 CIVIL PROCEDURE OUTLINE
                                         FALL 2007
                                         GREINER

       d. denials are made without evidence
   II. Hadges v. Yonkers Racing Corp. – 1995 – 2d Cir. – attorney sanctioned for failing to
       inform the court that there was a state court proceeding
  III. 3 eras in Rule 11
       a. Pre-1983 – essentially not used at all
       b. 1983-1993 – overused – objective standard that resulted in many threats of Rule
           11 sanctions – tactical tool; sanctions (routine: money) required
       c. 1993 – more subjective, sanctions = what is necessary to deter only
CLASS ACTIONS
  I.   Prerequisites – Rule 23(a)
       a. Must be a class
                i. Proposed class definition must be precise, objective, presently
                   ascertainable, not dependent on subjective criteria, merits of case, and it
                   cannot require an extensive factual inquiry to determine who is a member
       b. Representativeness - Class Representative must be a member of the class
                i. If claim of named plaintiff is resolved before class is certified, action may
                   be dismissed.
               ii. If interest will expire before certification in normal course of events, the
                   class may be certified.
              iii. Generally not rendered moot if claim becomes moot after class
                   certification.
              iv. Representative party must fairly & adequately protect interest of the class.
                        1. to uncover conflicts of interest between named parties/class they
                            seek to represent – Rule 23(a)(4)
       c. Numerosity - Joinder of all members must be impracticable
                i. If more than 40 members, this is met.
               ii. If less than 25, not met.
              iii. If between, variables – geographic dispersion of class members, size of
                   individual claims, become important.
       d. Commonality - Questions of law or fact common to the class
                i. Critical question: whether differences in the factual background of each
                   claim will affect outcome of the legal issue.
       e. Typicality - Representative claims/defenses are typical of the class
                i. General Telephone Co. v. Falcon - 1982 - Falcon: alleging failure to
                   promote; class: alleging failure to hire; Court: settlement is invalid
                   because the class should have never been certified together in the first
                   place. Question of when to certify (or amend) class, need certification for
                   discovery, but best indication of what class will be is at summary
                   judgment
  II.  Basic Types of Class Actions
       a. 23(b)(1)(A)
                i. When individual actions would impair defendant, i.e. different results
                   cause defendant not to know how to behave
       b. 23(b)(1)(B)



                                        PAGE 44 OF 46
                              CIVIL PROCEDURE OUTLINE
                                      FALL 2007
                                      GREINER

                i. When individual actions substantially impair or impede the ability of class
                   members to protect their interests
                       1. Limited fund consideration - 1st plaintiffs win judgment, get
                           damages out of a limited fund, deplete the fund, and 2nd plaintiffs
                           have nothing to get
               ii. Notice not required
       c. 23(b)(2)
                i. Relief = injunction
               ii. Notice not required
       d. 23(b)(3)
                i. Damage class actions – when class members claim to have been injured in
                   the same way
               ii. 2 additional requirements from original 4
                       1. Predominance
                                a. Subsumes commonality requirement – no longer just
                                    requiring common issue, but require that these issues
                                    predominate
                       2. Superiority
                                a. Class action better way to litigate claim than any other
                                    claim
III.   No need for plaintiffs to have minimum contacts with the state for court to have
       personal jurisdiction over the plaintiffs.
       a. Phillips Petroleum Co. v. Shutts – 1985
IV.    Forum law does not automatically apply in class actions; must be decided based on
       fairness, an important element of which is the expectation of the parties.
       a. Phillips Petroleum Co. v. Shutts – 1985 – class suing Phillips because it was
           withholding profits for short periods of time to maximize money; lots of people
           had leases with Phillips, but most in OK and TX – not KS; Court: cannot apply
           KS law (as it did), must consider fairness (expectations of party); on remand,
           Kansas court decided that KS law did not differ greatly from OK/TX law so no
           real difference.
V.     Notice/opt-out requirements only in 23(b)(3) class actions, but footnote in Shutts
       implies that these requirements apply to claims wholly/predominately for monetary
       judgments; no decision on whether they do or not.
VI.    Settlement – 23(e)
       a. Must give notice and [another] opt-out requirement
       b. Have fairness hearing (To protect the rights of the unnamed plaintiffs)
                i. Plaintiff‟s and defendant‟s attorney‟s have incentive to settle, so have to
                   look out for other firms/parties that have different interests
       c. Must be fair, reasonable, & in the best interests of the affected individuals
                i. Rarely overturns on this basis, but says that class should have never been
                   certified in the first place.
               ii. Sometimes necessary to divide into subclasses and procure counsel for
                   each subclass.



                                     PAGE 45 OF 46
                               CIVIL PROCEDURE OUTLINE
                                       FALL 2007
                                       GREINER

                        1. Amchem Products, Inc. v. Windsor – 1997 – asbestos litigation;
                           settlement that did not differentiate between those who currently
                           had illness and those who had been exposed but had not yet
                           developed disease.
                        2. By securing separate counsel for each subclass and special master
                           to determine distribution of funds among subclasses, Holocaust
                           litigation got around Amchem problems. – In Re Holocaust Victim
                           Assets Litigation – 2000 – NY
                                a. In re Austrian and German Bank Holocaust Litigation –
                                    settlement okay because 1)produced through arm‟s length
                                    negotiation; 2) substantive nature seemed fair; 3) no
                                    objections
STANDARDS/RULES
  I.   This distinction ran through whole course.




                                      PAGE 46 OF 46

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:17
posted:6/27/2011
language:English
pages:46