Civil Procedure PLEADINGS Basic Documents · Complaint initial by qingyunliuliu


									                                             Civil Procedure


Basic Documents
    Complaint: initial pleading in a lawsuit; filed by P
    Answer: D’s response; states defenses to each claim and admits or denies each count
    Reply: required if D asserts counterclaim; P can also obtain court order to allow reply

Time for Various Pleadings
    Service: must normally occur within 120 days of filing complaint
    Answer: must be served within 20 days after service of complaint
           o If P served D out-of-state (long arm), time to answer is state rule (usually longer)
           o If D makes FR 12 motion against complaint and loses, D has 10 days after denial to
           o If D requests waiver and P grants, D has 60 days from date request for waiver was sent
    Reply to counterclaim: P must serve his reply within 20 days after service of answer

4 Primary Areas to Focus on Pleading
    1. Standard of particularity of pleading
    2. Special pleading rules
    3. Amendments of pleadings – “relation back”
    4. Responding to the complaint (answer / pre-answer motion)

     Rule 8(a): 1) short and plain stmt of grounds upon which ct’s jurisdiction depends
              2) “short and plain stmt” of claim showing that pleader is entitled to relief
              3) demand for judgment of relief sought
         o Very low pleading threshold: don’t need to plead facts or cause of action
         o P only needs to put D on reasonable notice of what’s being alleged
         o Rule 8(d)(2-3): statements in pleadings can be inconsistent

Case History of Standard of Particularity
Bell Atlantic Corp. v. Twombly, SC, 2007
     P allege antitrust behavior by D; inhibiting competitors + agreeing not to compete
     Pleadings needed to mention specific time, place, person involved in conspiracy (otherwise D
        wont know where to start to respond)
     Complaint must state claim to relief that is plausible (not just conceivable)
            o Need enough facts to raise reasonable expectation that discovery will reveal evidence
     Purpose:
            o Prevent P with largely groundless claim from taking up time and expense

Conley v. Gibson, SC, 1957 (overruled by Twombly)
    Not required to set out in detail facts on which states a claim
    Can’t dismiss under 12(b)(6) unless legal certainty there’s not basis for recovery

     Certain “special matters” must be pleaded with particularity to be raised at trial
          o FR 9: creates diff allocations of pleading and proof burden based on claim type

       Fraud/ mistake: Must state with particularity circumstances constituting fraud/mistake; malice,
        intent knowledge and other conditions of person’s mind may be alleged generally (FR 9(b))

Case History of Special Pleading Rules
Stradford v. Zurich Insurance Co, SDNY 2007
Rule: Counterclaims that do not satisfy 1st sentence of FR 9(b), requiring that “time, place, and nature of
alleged misrepresentations” be disclosed to party accused of fraud, will be dismissed.
     P brought action against his property insurer seeking payment under policy for water damage to
        his office
     D (insurance co) filed several counterclaims, but were not stated with sufficient particularity

     Sections A and B serve to divide litigation cycle into 3 phases:
      1. Before responsive pleading: P can amend pleading once automatically without a motion
          o Only P has invested anything to this point so no harm to D or court
          o D can ask for and P usually consents to an extension on the 20 day period
      2. During pretrial process: liberally granted (“when justice so requires”)
          o Period extends thru discovery and pre-trial management, as timeline moves on, likelihood
              of court’s acceptance declines
          o No bad faith or dilatory motive
          o Court’s decision is interlocutory (can’t be appealed)
      3. During trial: still possible, but circumstances depend on evidence presented
          o If evidence inconsistent with pleadings comes in and other party doesn’t object, pleadings
              are automatically viewed as having been amended
          o When party objects, court shall allow pleadings to be amended when presentation of
              merits will be served thereby and objecting party fails to show prejudice

Rule 15(c) – Relation Back of Amendments
    Relevant when P’s theory changes in pre-trial process and SOL of new theory has run
    Doctrine allows P to relate new claim back to date original complaint filed
    Amendment of pleading relates back to date of original pleading when:
       1. Law that provides the applicable statute allow relation back, or
       2. Amendment asserts claim/defense that arose out of conduct, transaction, or occurrence set
            out in original pleading.

Rule 15(c)(1)(C) – Relation Back (Adding New Parties)
    Amendment to add new parties will only relate back if 3 reqs are met
       1. Claim to be added arises from same conduct, transaction or occurrence as original claim
       2. New party had notice, within period for delivery of the original complaint to original D, that
            action against original D had been filed
       3. New party knew or should have known that, but for a mistake as to the identity of the proper
            party, the original action would have been against him.

Case History of Amendments of Pleadings – “Relation back”
Beeck v. Aquaslide (1977)
Rule: A court may grant a motion to amend an answer unless opposing party can show bad faith, undue
delay, or prejudice.

       Beeck injured while using slide
       Aquaslide initially admitted it was manufacturer; later (after SoL ran) moved to amend answer to
        deny, because found out they weren’t manufacturer
       Court permitted Aquaslide to amend answer despite SoL ran; coz under FR15(a), leave to amend
        shall be “freely given as justice so requires”

Moore v. Baker (11th Cir. 1993)
Rule: Determination of whether an amended complaint may relate back to date of original complaint is
whether original complaint gave sufficient notice to D of possibility of suit involving claim now being
     Patient sues doc on grounds he failed to advise of alt treatment
     Patient filed to amend her complaint to accuse doc of negligence
     Original complaint contained nothing to inform D that claims of negligence might be asserted + P
        would have to prove completely diff set of facts in amended complaint -> new claim did not arise
        out of same occurrence as claims in original complaint
     FR 15(c): amendment relates back when new claim arose out of conduct, transaction, or
        occurrence set forth in original pleading
            o Determined by whether original complaint gave notice to D of claim now being asserted

Bonberb v. Richard J. Caron Foundation (WDNY 1994)
Rule: Even if amendment to complaint changes legal theory of case, it will relate back so long as original
complaint states same general facts that new claim is based on.
    P slipped and fell while playing bball on D’s court
    In complaint, P alleged D negligently maintained bball court
    Moved to amend complaint to add new cause for “counseling malpractice”
    Claim relates back: based on same facts, D advised at outset of general facts

Defenses against validity of complaint – included either in answer or pre-answer motion
Pre-answer motion: does not require party to state forth their version of facts
       1. FR 12(b)(1) – Lack of subject matter jurisdiction
       2. FR 12(b)(2) – Lack of personal jurisdiction
       3. FR 12(b)(3) – Improper venue
       4. FR 12(b)(4) – Insufficient process
       5. FR 12(b)(5) – Insufficient service of process
       6. FR 12(b)(6) – Failure to state a claim upon which relief can be granted
           o Usually before D files answer – after, can make 12(c) motion for “judgment on
           o Must show that no recovery is possible under any legal theory; usually given chance to
               amend first before dismissal
       7. FR 12(b)(7) – Failure to join a necessary party under Rule 19
       8. FR 12(c) – Motion for Judgment on the Pleadings: if court thought law clear and further
           development of facts wouldn’t help in deciding case
       9. FR 12(e): Motion for a More Definite Statement (must be in Pre-Answer Motion); if
           complaint is “so vague or ambiguous that D cannot reasonably be required to frame a
           response pleading” (if claim really so vague, subject to 12(b)(6) motion)
       10. FR 12(f): Motion to Strike: if included redundant, immaterial, prejudicial allegations

Waiver of Defenses Under FR 12 – Governed by FR 12(g)(h)

       Defenses waived if not raised in D’s First Response to Complaint: personal jurisdiction, venue,
        form of process, method of service (but for other defenses, can raise later e.g., in Answer)
       Lack of Subject Matter Jurisdiction: Can be raise anytime (by any party, including court)
       Party who makes a pre-answer motion may not make a further pre-answer motion on any ground
        that was available at time she made first one (but can put in answer)
       Test: 1) Was defense available at time 1st motion was made? 2) Can defense be raised in answer
        even if it was omitted from pre-answer motion?

Special Appearances
    CL Procedural Motion: allows D to challenge personal jurisdiction w/o submitting to court’s
        authority; But D must only object to PJ, if go beyond that will be regarded as appearing
        “generally” to defend case
    Federal courts: Use FR12(b)(2) Motion
            o Allows D who objects to PJ to assert other defenses at same time; can raise objection in
                answer (rather than filing special appearance)

Respond to Factual Allegations
Three major parts in responding to complaint:
    1. Systematic “allegation by allegation” response to the complaint; responses can be:
       - Admission: admit allegation
       - General denial: deny each and every allegation; FR 8(b) warns against this
       - Specific denial: deny specific allegations of complaint
       - Qualified denial: deny particular portion or a particular allegation
       - Lack of knowledge of info: say don’t have enough info to form belief, has effect of a denial
       - Failing to deny: deemed admitted; Rule 8(b)(6)

Case History of Responding to Complaint
Zielinski v. Philadelphia Piers Inc., EDPa, 1956
Rule: D who knowingly makes false statements upon which P relies will be estopped from denying such
statements at trial
      P sue D for injuries from collision of 2 forklifts, had D’s initials on them
      Complaint stated forklift was owned by D
      In answer: D answered with general denial as to “averments” of that paragraph
      After SOL run, P learns forklift owned by someone else; P moves court to deem it admitted that
        D owned forklift, coz D by not alerting P to mistake failed to exercise good faith in pleading
        general denial (should have specifically denied it owned the forklift)
      Court agreed

    2. Affirmative Defenses – FR 8(c)
       - affirmative defenses: def has burden of pleading and provide evidence to demonstrate
       - FR 8 (c): contains list of 19 affirmative defenses (nonexhaustive)

    3. Counterclaims, cross-claims, and 3rd party claims
       - FR 7(a)(3): reply required if answer contains a counterclaim labeled as a counterclaim
       (otherwise not required)

   Created to inhibit frivolous lawsuits (permitted against any party, law firm, lawyer)
   Signature – lawyer’s signature represents certification that to best of his knowledge, info and
     belief after an inquiry reasonable under circumstances that claim
     - Not presented for improper purpose (e.g., to harass, cause unnecessary delay etc.)
     - Claims, defenses, and other legal contentions are warranted by existing law or by non-frivolous
     argument to change / create law
     - Allegations have evidentiary support or are likely to after reasonable discovery
     - Denials are warranted on evidence or reasonably based on lack of info or belief
   Prohibit lawyer from filing a pleading when he has no more than a hope that favorable facts or
     law will emerge as case progresses
   Sanctions: discretionary, only to deter repetition of conduct
   Permits sanctions for conduct regarding pleadings (and other documents), but not for other
     misconduct (e.g., during discovery, or misstatements during oral presentation) (Christian v.
   Safe harbor provision: party has 21 days to withdraw after objection before sanctions
   Continuing obligation: continuing obligation to withdraw paper if it becomes invalid

Case History of Rule 11
Walker v. Northwest Corp (8th Cir. 1996)
Rule: Sanctions in form of attorney’s fees pursuant to FR 11 are justified for failing to file proper
pleadings in diversity case.
     P and attorney appeal from trial court’s award of sanctions against attorney for filing diversity
        case in which failed to plead complete diversity of citizenship
     Complaint stated jurisdiction based on diversity; did not allege D’s citizenship precisely

Christian v. Mattell (9th Cir. 2003)
Rule: Rule 11 sanctions are limited to misconduct regarding signed pleadings, motions, and other filings.
    P file suit claiming Mattel’s dolls infringed his copyright
    Trial court found P should have discovered Matte’s copyright first -> P’s attorney filed frivolous
    P’s attorney also behaved boorishly during discovery -> but couldn’t be punished for this


3 Questions for Personal Jurisdiction
   1. Is there a traditional base of personal jurisdiction?
   2. If there’s no traditional base, does long arm statute apply?
   3. If no traditional base and long arm statute applies, is its application Constitutional?

Traditional Base of Personal Jurisdiction
    Presence – jurisdiction even if D in state only briefly (Burnham)
    Domiciliary – jurisdiction over D if domiciled there, regardless of where located (Milliken)
    Agent – if state can grab agent, in effect is grabbing D
    Consent – 4 types of consent to get PJ:
        1. Don’t assert it as a defense – Rule 12(b)(2) must be asserted early in trial
        2. Implied consent – Drive through state
        3. Express consent – Sign a contract (Carnival Cruise)
    For corporations: state incorporated, principal place of business

Long Arm Statute
    Permits states to obtain jurisdiction over persons not physically in state at time of service
          o Often pertain to in-state tortiousness, out-of-state acts with in-state consequences
    If long-arm statute applies, look to 3rd question (constitutionality)

Constitutional Principles
    Specific Jurisdiction – subject matter of action must relate to forum state
            o Int’l Shoe – minimum contacts with forum state; fair play, substantial justice
                      If standard not met, PJ violates 14th Amend right to due process
            o McGee – D’s only contact with state was mailings to get business, no agents in state
                      D took actions that were purposefully directed towards forum state
            o Hanson v. Denckla – D had no minimum contacts with state; D must purposefully avail
                self of chance to do biz in forum state; unilateral conduct of P doesn’t count
            o Volkswagon – limits stream of commerce
                      Foreseeability alone sufficient; D’s conduct must be such that he can reasonably
                         anticipate being haled to court there
                      PJ requires that D made effort to market in forum state, directly or indirectly
            o Asahi – Putting goods in stream of commerce flowing into forum state (knowing that it
                flows there) is sufficient for minimum contacts; but here, didn’t pass “fair play and
                substantial justice” test
            o Burger King – there are minimum contacts even if D has no physical ties to state; but
                franchise grew out of contract that had substantial and continuing connection to state; D
                reached out to negotiate with state corp and agreed to contract regulated from state, to
                make payments to state, and have disputes govered by forum state law
            o Pavlovich – did D expressly aim tortuous conduct at forum state (website)
            o Carnival Cruise – Forum-selection clause generally enforceable, party claiming it is
                unfair bears “heavy burden of proof”
            o Gibson v. Brown – Merely bringing suit in a particular jurisdiction doesn’t act
                indefinitely to expose that party to defending future suit in same jurisdiction
    General Jurisdiction – continuous, systematic association though dispute unrelated to forum; can
        be sued in state for any claim (even one completely unrelated to in-state activities)
            o Perkins – systematic conduct in state gives it jurisdiction over unrelated claim; here, even
                though corporation only had office and bank acct in state, still sufficient

            o   Helicopteros – purchases alone, even if plentiful, not enough for general juris
            o   Burnham – D’s physical presence in state at time of process enough for general juris

     D who deliberately chooses to take adv of benefits and protections of laws of a state will not be
        heard to cry foul when that state holds her accountable for her in-state acts
     Factors for “Fair play and substantial justice”:
            o Interest of forum state in providing redress to its citizens
            o Interests of states in enforcing their substantive law/ policy
            o Interest of P in obtaining relief in convenient forum
            o Inconvenience of D if have to defend away from home

Jurisdiction Based on Property
     In rem: Court has jurisdiction due to its power over property in question
              o Shaffer has almost no effect (enough if D’s in-state property at issue and D given notice)
     Quasi in rem: Court has jurisdiction by seizing property that belongs to D that is not property that
         is subject of litigation
              o Shaffer – All assertions of jurisdiction must be evaluated according to stds in Int’l Shoe
                  (severely limits utility of quasi in rem)

2 General Ways to Challenge Personal Jurisdiction
   1) Direct Attack
           a. CL: Special appearance to object to PJ (but can’t raise any other issues)
           b. FR: Object to PJ (and can also raise other objections at same time)
           c. Court holds hearing on PJ issue:
                    i. If no PJ: dismiss suit
                   ii. If yes PJ:
                            1. Either proceed with case; can also appeal, or
                            2. D can immediately challenge using immediate appeal
   2) Collateral Attack
           a. D can ignore original suit entirely, then P wins
           b. When P comes to D’s state to enforce judgment, P must either:
                    i. Judgment on judgment: file new action on judgment in enforcing state, or
                   ii. File a certified copy of original suit’s judgment (eliminating need to file new
           c. But D’s forum state will only give full faith and credit to judgment of another state if that
              state had PJ
           d. Risk for D: don’t get to argue on the merits

   Notice must be reasonably calculated, under circumstances, to give actual notice
   5 Methods of Service:
                         1. Personally delivering summons and complaint to D
                         2. Leaving copies of summons and complaint at D’s dwelling with a person
                            of suitable age and discretion residing therein
                         3. Delivering papers to an agent appointed by D to receive service or
                         4. Serve D under provisions governing service on individuals in court of
                            state where federal court sits
                         5. Serve D outside of state where action is pending authorized pursuant to
                            law of state where D is actually being served
   Waiver of Service of Process:
         o P can solicit waiver of process by sending D complaint, 2 copies of notice of action and a
            request that D waive formal service of summons and complaint on him; D must return
         o Incentive for D to waive:
                 Duty to avoid unnecessary expenses of serving summons FR4(d)(1)
                 Court must impose costs of service on D who refuses to waive service w/o good
                 Allows D 60 days to respond to complaint (instead of usual 20)
   Mullane –
         o Personal service of written notice within jurisdiction always adequate
         o Notice via newspaper publication unreliable to give notice
                 In this case, the legal notice at issue didn’t even mention names of beneficiaries
         o No requirement to actually give notice, but must be “reasonably calculated” to inform
            known parties affected by proceedings
                 Notice by publication acceptable for missing or unknown parties

   Venue only matters if jurisdiction over parties has been established
   Venue issue must be raised early by D; otherwise waived (FR12(h)(1))

   1. Does court have venue under statutory structure (each state is different)?
   2. If state court has venue, can case be removed to federal court of same district?
   3. If court has venue, can the court transfer it?
   4. If has venue, are there situations where we should transfer it anyway – forum non conveniens?

§1391 – Venue in Federal Actions: Which federal court shall try the action?
     Diversity – civil action founded only on diversity may be brought only in a judicial district:
           o Where any D resides, if all Ds reside in same state
           o Where substantial part of events occurred or property subject of action is located
           o If none under above 2, then where any D is subject to PJ
     Federal Question or Mixed – Civil action may be brought only in a judicial district:
           o Where any D resides, if all D’s reside in same state
           o Where substantial part of events occurred or property subject of action is located
           o If none under above, then where any D may be found
     Note on Corporations and Aliens for Purposes of Venue
           o Corporation: resides in any district where subject to PJ
           o Alien may be sued in any district

§1441(b) – Removal to Federal Court
    If case is filed in state court, it can be removed to federal district court “for the district and
       division embracing the place where such action is pending”
           o E.g., If A sued B in state court for Lipscomb County, action would be removed to federal
               district court for NDTex (not any other federal district court)
           o I.e. There may be cases where case is removed to a court which wouldn’t have had
               original jurisdiction
    Can only remove from state court to federal court (not vice versa)
    C an only remove action that could have been brought in federal court originally
    Only original D can remove
    Federal question: action is removable by any D w/o regard to citizenship of parties
    Diversity: only D’s who are non-citizens of forum state can remove
           o If A sues B in state court in B’s home state, B cannot remove to federal court

§1404(a) – “For the convenience of parties and witnesses, in interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought” (applies only
to federal courts; case not dismissed, no need to refile)
      Applies only to transferring between federal courts
      Judicial discretion
      Motion to transfer usually made by D, burden on movant to show why


   Forum non conveiens: used when it doesn’t make sense to litigate in a given court (for both state
    and federal courts)
   Factors to look at:
        o Location of potential witnesses and relevant evidence and records
        o Possible undue hardship for Ds
        o Available of adequate alternative forums for P
        o Expeditious use of judicial resources
   Declaring forum non conveniens results in actual dismissal of action, so P must initiate again
   Piper Aircraft – Unless other jurisdiction is so clearly inadequate as to fail to provide any
    recovery at all, possibility of application of less favorable law is not factor in decision on forum
    non conveniens
        o Court should consider private interests involved, convenience to parties and witnesses,
            location of evidence, where event in controversy occurred


   Party seeking to invoke SMJ of federal court has to make affirmative showing that case is within
      court’s SMJ
   No matter when deficiency is noticed, suit must be stopped and dismissed – FR12(h)(3)

    Federal courts are courts of limited jurisdiction (Article 3 of Constitution)
    Need to ask 2 questions to determine whether suit may be filed in federal court:
     1. Is this case one which constitutionally may be granted to federal courts, coz the power for
         them to hear it is granted in Article 3?
              a. P’s cause of action must “arise under the Constitution, laws or treatises of the US”
              b. “Arising under” is quite broad: extends to when either party seeks to rely on or
                   establish a proposition of federal law in order to prove either a claim or a defense in
                   the case
     2. If so, has Congress actually conveyed jurisdiction over this type of case in §1331?
              a. Typically, only have jurisdiction if P’s claim requires proof of federal law
    Suits can typically always be filed in state court: unless §1331 gives jurisdiction only to federal
     courts (e.g., copyright claims)

    Requirements:
     1. Complete diversity: every person on left side of v. must come from diff state than everyone
        right side
     2. How to determine citizenships of parties:
            a. People: citizenship is where domiciled; domicile = where you intend to stay
                 indefinitely (open-ended, no definite intent to leave) + physical presence
            b. Corporations: citizenship is state incorporated and principal place of business
            c. Unincorporated associations: cumulative citizenship of all its members
            d. Representative actions: citizenship determined by representative not the represented
                 (e.g. infants, deceased, shareholders, members of a class)
     3. Amount in controversy must exceed $75,000 (P’s good faith claim for more than $75k is
        controlling, unless it appears to a legal certainty that the claim is really for less);
            a. Can >1 claims add up to satisfy amount in controversy requirement?
                       i. When single P asserts >1 claim against single D, amounts can be added
                          together. (Aggregation is ok even if claims are totally unrelated)
                      ii. Single P cannot add amounts sought from diff Ds; must meet req for each D.
                     iii. Multiple Ps cannot add their claims together to meet req, in cases where
                          neither party alone meets req.
                     iv. As long as one P satisfies req amount, others may join as co-Ps even though
                          they are seeking less than req amt.

    SJ: jurisdiction over claims that do not themselves satisfy ordinary jurisdictional standards but are
     so closely related to a claim within federal jurisdiction that it makes sense to hear them together
    §1367(a) – Grants supplemental jurisdiction over all claims that form part of same case or
     controversy under Article III of Constitution
          o Case or controversy embraces everything within common nucleus of operative facts
          o §1367 only relates to SMJ (does not satisfy PJ)

       §1367(b) – Bar claims by P (in diversity cases) against other persons made parties thru FR14
        (impleaded parties), FR19 (compulsory joinder parties), FR 20 (permissive joinder parties), FR
       §1367(c) – Grants district courts discretion to decline to exercise SJ if:
             o State-based claim is novel and complex, or it is really the guts of the action
             o Federal question claim has been dismissed
       SJ: always available in compulsory counterclaims (FR13a), cross-claims (FR13g), 3rd party
        claims (FR 14, 22) (as long as claim not asserted by P)

    Owen Equipment v. Kroger, SC 1978
    Rule: In diversity case, P’s claim over impleaded party has no SJ.
        P (Kroger) sue OPPD, based on diversity, which then impleaded Owen; Owen was not
            diverse with either P or OPPD
        OPPD impleading Owen: SJ (coz always have SJ in cross-claim)
        But P’s claim over Owen has no SJ
                o Since P couldn’t have sued OPPD and Owen together originally, it would ignore
                     statutory limits on jurisdiction to do so after Owen is impleaded

Specific Examples
        1. P asserting a claim over which the federal court has subject matter jurisdiction may join a
             claim over which federal court would not have independent jurisdiction arising out of same
             nucleus of operative facts against same D
                  a. E.g., P suing police officer for unlawful arrest violating Constitution may join a state
                      tort law claim for assault and battery committed during arrest (even tho P and D are
                      citizens of same state so there is no diversity juris)
        2. Impleader
                  a. E.g., A sues B in federal court. B may implead C under FR 14(c) in order to assert
                      B’s claim that C must reimburse B whatever B may be required to pay A (can be
                      done even tho no independent SMJ over B’s claim against C)
        3. Federal D may assert a compulsory counterclaim (FR13(a)) against a P even though there
             would be no independent SMJ over counterclaim
                  a. E.g., police officer sued for unconstitutional arrest could bring a state law
                      counterclaim that P assaulted him during arrest
        4. Federal D may assert a crossclaim against another D arising out of same nucleus of fact as
             original claim (FR13(g)) even tho there is no independent SMJ over crossclaim
        5. Party may intervene as of right in federal action (FR24(a)) without destroying SMJ
        6. P asserting a federal law claim and supplemental state law claim against same D may join
             state law claim over which there is no independent jurisdiction against another D even tho P
             asserts no federal law claim against that D, so long as all claims arise from same nucleus of
        7. Can bring a necessary party (FR19(a)) into a case without destroying SMJ
    Exception to 6+7: if underlying suit is diversity suit, P will not be able to rely on supplemental
        jurisdiction to assert claims of this sort over which court lacks independent jurisdiction


   After a valid and final judgment, a transactionally related claim may not be relitigated btw
     parties of the original suit
     1. Final Judgment
     2. Judgment must be “on the merits”
             a. On the merits: P had full opportunity to litigate merits in 1st action
                        i. FR12(b)(1)-(5), (7): dismissals due to lack of SMJ, PJ, venue etc. are not
                           final judgments
                       ii. FR12(b)(6): dismissal for failure to state claim is final judgment since P was
                           allowed liberal opportunities to amend
                      iii. Unappealed judgments: decisions that could be appealed but weren’t, are
                           final judgments
     3. Claims must be the same in the 1st and 2nd suits
             a. “Transaction or occurrence” test: a party who has asserted a right to relief arising out
                  of a particular transaction must join all claims she has arising from it, or the omitted
                  claims will be barred by claim preclusion
             b. Claim need not have been actually litigated to be barred in later action; just need to
                  have been available to P in 1st suit
     4. Parties must be the same in the 1st and 2nd suits

       Counterclaims:
             o Permissive counterclaims: not prevented from future litigation (coz usually not related)
             o Compulsory counterclaims: must be brought in original suit or barred from future lit
       If claim asserted in action could not have been asserted in 1st action, most courts hold 2nd suit not

ISSUE PRECLUSION (Collateral Estoppel)
    Prerequisites:
      1. Issues in 2nd case must be same as issue in 1st case
      2. Issue must have actually be litigated
      3. Even if issue was litigated in prior action, issue preclusion will not bar relitigation unless the
           issue was actually decided in that action
      4. Issue preclusion will not apply unless the decision on the issue in the 1st action was necessary
           to the court’s judgment
             a. Often, a court may find for a litigant on 2 independent, sufficient grounds Impossible
                  to tell which decision was necessary to judgment => Issue preclusion barred
    Nonmutual Issue Preclusion: Allows a new party to invoke issue preclusion against a party who
      litigated and lost on an issue in 1st action
            Only appropriate if precluded party had full and fair opportunity to litigate issue in 1st
      1. Defense Nonmutual Estoppel: When a D seeks to prevent a P from asserting a claim the P has
           previously litigated and lost against another D
                a. Easily justified, since party being estopped was usually P in original suit and chose
                    forum and D to litigate against
                    Suit 1: P  D1 (P loses on Issue A)
                    Suit 2: P  D2 (New D pleads issue preclusion to bar P from relitigating Issue A)
      2. Offensive Nonmutual Estoppel: When a P seeks to foreclose the D from litigating an issue
           that D has previously litigated unsuccessfully in an action with another party

a. Suit 1: P1  D (D loses on Issue A)
   Suit 2: P2  D (New P invokes issue preclusion to establish Issue A in her suit
   against D)
b. Harder to justify
         i. Party against whom estoppel is asserted in 2nd action was usually D in 1st suit
            and didn’t choose forum
        ii. Prospect of taking adv of another P’s victory to establish crucial issues w/o
            trial may lead Ps to “wait and see”
       iii. A party might not have litigated the issue aggressively in the 1st action if
            stakes were small of forum inconvenient
       iv. May not have been possible for losing party to litigate effectively in 1st action
            if rules of court that decided 1st case were more restrictive than court in 2nd
c. Courts should exercise discretion in deciding whether to allow offense nonmutual


     FR 18(a) – Pleader may join any claim he has against D (no common transaction req)
           Applies not only to original P, but also to any party seeking relief against another party,
             whether on counterclaim, cross-claim, or 3rd party claim (but must have original related
             claim first)
           Supp juris: if arise out of common nucleus; if not, no supp juris (need other type of juris)
     FR 24(b) – gives courts right to separate trials

     FR 20(a) – authorizes Ps to sue together if assert claims from same transaction; and claims
      against D will involve common question of law or fact (TO + CQ)
     FR 20(b) – allows P to sue multiple Ds in single action if same criteria met
     Supp Juris: if original claim is federal question claim, there is sup juris over new Ds if the claims
      against them arise out of same nucleus of facts
          o If original claim is coz of diversity jurisdiction: no supp juris (§1367(b))

        Mosley v. GM Corp., 8th Cir 1974
        Rule: 2 prereqs to joinder of parties: 1) right to relief must be asserted by each P related to or
        arising from same transaction/ occurrence, and 2) some question of law/ fact common to all
              TC abused its discretion in severing joined action, coz FR aim to promote trial
                 convenience and preventing multiple law suits
              P asserted they all had been injured by same general policy of discrim by D

      3 Questions: a) Who does system say I should join?
                   b) Can I join him (can I get jurisdiction)?
                   c) If I should join him but cannot, then what should I do about it?

    a) Who does system say I should join?
          FR 19(a):
             i)      Person should be joined, if in their absence, court can’t accord complete relief
                     among existing parties, or
             ii)     Person should be joined, if she has interest in subject matter of action and her
                     ability to protect that interest will be impaired if she doesn’t join, or
             iii)    Person should be joined, if she has interest in subject matter and adjudicating
                     case w/o her might leave one of existing parties exposed to multiple/ inconsistent

    b) Can I join him (Can I get jurisdiction)?
           The outside party may destroy diversity or not be subject to personal jurisdiction
                    o Cannot use supp juris (since §1367 excludes FR 19 in list)

    c) If I should join him but cannot, then what should I do about it?
             Court has 3 choices:
                1. Go forward with case w/o absentee
                2. Dismiss case coz it would be improper to proceed w/o absentee
                3. Go forward, but try to craft judgment to provide appropriate relief to parties before
                    court despite inability to join absentee

               FR 19(b): factors court looks at to determine what to do
                i)     Extent judgment rendered in person’s absence might be prejudicial to person or
                ii)    Possibility of framing judgments so as to mitigate such prejudice
                iii)   Adequacy of remedy that can be granted in person’s absence [among parties
                       before court]
                iv)    Whether P will have adequate remedy if action is dismissed

        Temple v. Synthes Corp., US 1990
        Rule: Not necessary for all joint tortfeasors to be named as D in single lawsuit. (No need for
        compulsory joinder of parties.)
            P had botched surgery; sued manufacturer in federal court; hospital and doctor in state
            Manufacturer moved to dismiss suit for failure to join doctor and hospital (under FR 19)
            Joint tortfeasors are permissive, not indispensable parties

        Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center, 8th Cir 1977
        Rule: Person doesn’t become indispensable to action to determine rights under contract simply
        coz person’s rights under another contract will be affected by result of action.
             H made lease with VW that provided only 3 full-line jewelry stores in center
             Lord’s gets lease as specialty jewelry store, but then turns out to be 4th full-line jewelry
             H gets injunction in federal court to keep VW from breaching lease (diversity juris)
                    o VW moves to dismiss coz think Lords is indispensable party FR19
             Motion denied: Since Lords was not subject to PJ in federal court, must determine if
                Lords is indispensable (no, just necessary, not indispensable)

        Martin v. Wilks, US 1989
        Rule: Person cannot be bound by a judgment to which he was not a party, even if person was
        aware of prior litigation and failed to file motion to intervene.
            State signed consent decree requiring it to hire and promote black firefighters
            Later, Wilks (white) claimed that he and other whites, were more qualified and should
                have gotten promotions
            SC upheld Wilks right to challenge previously established decrees

4. COUNTERCLAIMS (claims D makes against P) – FR 13
      2 types: 1) Compulsory 2) Permissive

    a) Compulsory Counterclaims – FR 13(a) (T&O req: always have supp juris)
           If counterclaim arises from same transaction as claim against him it is compulsory
           Must assert in original action, or else waiver right to assert later
           No need to have independent ground of jurisdiction (will always have supp juris)

    b) Permissive Counterclaims – FR 13(b) (no supp juris, unless arise from common nucleus of facts)
           D can assert completely unrelated counterclaims, but need indp ground of juris
              (otherwise can’t bring claim)
           Courts will often order separate trials under FR 42(b)

5. CROSS-CLAIMS – FR 13(g) – (T&O Req; always have supp juris)
     Arises out of same transaction; claim asserted by a party against co-party

       Optional, never compulsory

6. IMPLEADER – FR 14 (T&O Req; always have supp juris)
FR 14(a): D has (limited right) to implead new parties against whom she has claims related to main action
(does not have to implead; instead can file suit later for indemnification)
     Can’t interplead when D contends that the 3rd party is liable directly to P
     FR14(a)(2): 3rd Party D’s Claims and Defenses:
            o Must assert any compulsory counterclaim against 3rd party P; can assert permissive
                counterclaims; can assert any cross-claim against another 3rd party D
            o Can assert against P any defense that 3rd party P has to P’s claim
            o Can assert against P any claim arising out of same T+O
     FR14(a)(3): P’s Claims Against a 3rd Party D:
            o P may assert against 3rd party D any claim arising out of same T+O (no SJ)
     FR14(a)(5): 3rd party D can claim against a nonparty liable to them for all or part of claim
     FR14(b): When claim is asserted against a P, P can bring in 3rd party D

    Price v. CTB, Inc., Ala. 2001
    Rule: D can implead anyone, if that 3rd party’s liability is in some way dependent upon outcome of
    original action. Even though it may arise out of same general set of facts as main claim, 3rd party will
    not be permitted when it is based on separate and independent claim.

       2 types: 1) Intervention as of Right       2) Permissive Intervention

    a) Intervention as of Right – FR 24(a) (always have supp juris)
            FR 24(a)(1): allows person to intervene as of right if a statute authorizes it to do so
            FR 24(a)(2): further authorizes person to intervene if 3 conditions met:
               1. Person claims interest relating to property/ transaction that is subject matter of action
               2. That interest may be impaired if person not allowed to participate in case
               3. Person’s interest not adequately represented by those already parties to action

    b) Permissive Intervention – FR 24(b)
           Person may be permitted to intervene if they have a claim/ defense that shares with main
              action a common question of law/ fact
                   o Doesn’t expressly say that intervention is denied if absentee’s interest is
                       adequately represented by one of original parties (factor in discretionary
           2 limitations: 1) Timely           2) Court’s discretion to not allow it

        Natural Resources Defense Council v. US Nuclear Regulatory Commission, 10th Cir 1978
        Rule: To intervene, movant need not have direct interest in outcome of lawsuit. Just need genuine
        threat to movant to substantial degree. Where a party has an identifiable and specific interest in
        outcome, and it will affect party on individual level, court will allow party to intervene if
        intervention is only way for party to protect its right.
             P sought to prohibit D from issuing licenses for operating uranium mills
             Movants were not potential recipients of licenses; but could intervene

     Allows a party to join various adverse claimants who each have separate claims to single piece of
       property/ fund (often used by insurance companies)

       Rule Interpleader (FR22): as long as general jurisdiction met, and none of interpleaded parties
        ruin req of complete diversity, FR 22 allows debtor to join all parties (req complete diversity -
        none of claimants may be from same state as debtor)
       Statutory Interpleader (§1335): looser reqs than FR 22
            o Amount in controversy need only be $500 (as opposed to $75k normally needed for div)
            o Minimum, not complete diversity required. So long as any 2 claimants are diverse
                 regarding one another, diversity is satisfied

     Need to satisfy 4 prereqs in FR 23(a); then must fit in 1 of 3 categories in FR 23(b)

    Prerequisites – FR 23(a)
    1) Numerosity: Need to show that there are enough persons in class to make joining them as
        individual impractical
    2) Commonality: The class must present common questions of law of fact.
    3) Typicality: Representative must present claims typical of those in class.
    4) Adequacy: Representatives must fairly and adequately represent interests of class.

    Categories – FR 23(b)
    1) If either of 2 criteria are present: a) Inconsistent Results wrt individual class members that would
        establish incompatible standards of conduct for party opposing the class, or; b) Dispositive
        Adjudication - Litigation would impair ability of other members to protect their interest (e.g., D
        goes bankrupt paying out large claims to first few P that later P will get injured coz can’t get
    2) Injunctive or Declaratory Relief
    3) Predominating Issues of Law or Fact
            a. Individual class members are not identical wrt claims against common D doesn’t
                 preclude certification if some issues of law or fact, common to all class members,
                 predominate. Look at these 4 factors:
                      i. Concentration: Desirability of concentrating litigation in one forum
                     ii. Oversight: Difficulties in managing a class action with diff claims and parties
                          who may have diff interests
                    iii. Individual Control: Interests of individual in controlling their own suit
                    iv. Litigation: Extent of litigation already started by other class members that may be
                          impeded by onset of class action

    1) For FR 23(b)(1) and (2): Courts have discretion, no required notice
           a. No opt-out: Individual class members may not opt out of class action
           b. Cost of notice: Usually born by named rep
    2) For FR 23(b)(3): Each class member must receive individual notice
           a. Opt-Out: Notice must include opt-out possibility
                   i. If opt-out, judgment not binding on them; if don’t opt-out, judgment binding

    Jurisdiction (Phillips Petroleum v. Shutts)
    1) Class rep must meet reqs of personal & subject matter jurisdiction and venue.
    2) Absent class members: Forum state doesn’t need “minimum contacts” over them; but court must
        provide minimal due process protections:
             a. Reasonable Notice
             b. Chance to opt-out
             c. Adequate Representation

3) When class action based on diversity jurisdiction, §1332:
     a. Grants jurisdiction to federal courts where any member of class of Ps possess requisite
          diversity wrt any D + $5mil (amount in controversy req)
     b. §1332(d)(3): Factors relevant to discretionary power of court to decline fed juris
     c. §1332(d)(4): Factors relevant to circumstances where federal court must decline juris

Attorney’s Fees
1) Common Fund Doctrine: TC deducts as fee a % of a common fund that reps have collected for
    distribution among class
2) Common Benefit Doctrine: Permits an award of fees to be paid by D, independent of any fund,
    when the Ps have conferred some kind of benefit on the public

Preclusive Effects
Judgment is binding on all members of class, unless they opted out.

Settlements – FR 23(e)
May be settled btw rep and D, provided that:
            1. Notice provided to all members of class;
            2. For classes certified under FR23(b)(3), court may refuse to approve settlement unless
                it affords a new opportunity to request exclusion to individual class members who
                had an earlier opportunity to request exclusion but didn’t do so.
            3. Settlement approved by court (fair, reasonable, adequate)

Hansberry v. Lee
Rule: Due process requires that members of a class not present as parties to an action be bound by
judgment only if they were adequately represented by parties present. Such members also bound if
participate in litigation, if they have joint interests, or if a legal relationship exists btw parties present
and those absent such as to entitle former to stand in judgment for latter.
 H, Black man purchased land subject to racially restrictive covenant.
 L, man owning land subject to same covenant sought to enforce it
 According to covenant, restriction only valid of signed by 95% of landowners
 In prior case, to which H was not party, judge held that 95% of landowners had signed
 Can H be bound by prior action in which he was not party based on fact that both he and party in
    previous suit are members of same class? No

Heavens v. Trust Company Bank
Rule: Fact that D in class action filed counterclaims is sufficient reason to permit a TC to refuse to
grant class certification.

Evans v. Jeff D, SC 1986
Rule: FR 23(3) requires court approval of settlements of class actions. But it doesn’t prohibit all
settlements conditioned on the waiver of fees.
      Class action filed against ID on behalf of handicapped kids; class represented by Legal Aid
      State offered settlement which included waiver by class of any claim to attorney’s fees
            o Attorney felt should accept coz settlement would give class better deal than trial
      Legal Aid didn’t want attorney to accept, coz meant it wouldn’t get any $

Phillips Petroleum v. Shutts, US 1985

Rule: When you’re class-action P, state may exercise jurisdiction over claim of an absent class-P,
even though P may not have minimum contacts
     PP spewing oil over leaseholds owned by S (and others); pay S too low royalty; S and others
        sue for correct royalty in Kansas
     Not all of Ps are in Kansas; PP makes personal jurisdiction argument that only Kansas P can
     Court says: when you’re class-action P, state may exercise jurisdiction over claim of an
        absent class-P, even though P may not have minimum contacts
            o Interests of absent P are protected by forum state when those P are provided with opt-
                 out option

Amchem Products v. Windsor
Rule: In certifying class for settlement purposes, still need to meet all of FR23(a) requirements.
    Settlement: Class consisting of all people with potential asbestos claims who had not yet filed
        lawsuits would be certified pursuant to FR23(b)(3) for purposes of settlement only; Set
        compensation for certain asbestos-related diseases
             o Requirements of class certification not met: failed to show that common issues
                 predominated (given very diff injuries suffered, and some hadn’t even manifested
             o Named parties wouldn’t adequately represent class coz currently injured had diff
                 interests those than who hadn’t exhibited symptoms


     FR 26(b)(1) – “Parties may obtain discovery regarding any matter, not privileged, that is
       relevant to the claim or defense of any party…relevant information need not be admissible at
       trial if the discovery appears reasonably calculated to lead to the discovery of admissible
     FR 26(b)(2): Court can limit discovery if it determines that discovery is unreasonably cumulative
       or duplicable; obtainable from another source that is more convenient, less burdensome, less
       expensive, or if burden/expense of proposed discovery outweighs it likely benefit
     FR 26(c) – Protective Orders
        o Court may issue order to protect party from annoyance, embarrassment, oppression, or
              undue burden or expense


   Required Disclosures
       Initial Disclosures – FR 26(a)(1); Parties must disclose
              o Name, contact info of each person likely to have discoverable info that disclosing
                  party may use to support its claims or defenses, unless the use would solely be for
              o Copy of all documents, electronic docs, tangible items that disclosing party has in its
                  possession, control and may use to support its claims or defense
              o Computation of each category of damages claimed by disclosing party
              o Any insurance agreement under which an insurance biz may be liable to satisfy all or
                  part of possible judgment
       Disclosure of Expert Testimony – FR 26(a)(2); Parties must disclose
              o Identity of witness it may use at trial
              o Written report (if witness is retained and specially employed to provide export
                  testimony); report must contain
                        Complete statement of all opinions witness will express and reasons
                        Info considered by witness in forming them
                        Exhibits used
                        Witness’ qualifications
                        List of all other cases witness has testified as expert in
                        Compensation to witness
       Pretrial Disclosures – FR 26(a)(3)
              o Name and contact info of each witness
              o Docs and exhibits party will offer at trial

   Interrogatories – FR 33
        Questions sent to other party who answers them with lawyer and sends back
        Restrictions: 1) Only for parties (not nonparties) 2) Limited to 25 (can ask court for more)
        Must be answered by:
               o Party to whom it is directed; or
               o If party is corporation, by any agent who must furnish info available to party
        Parties must conduct reasonable investigation to provide facts within their control (e.g.,
           corporation must find out answer if available to their employees)
        Cheap, often used to gather baseline data for future discovery
        Objection to answering: need to state grounds with specificity

Request for Production of Products – FR 34
    Authorizes party to require opponent to produce designated docs or things in its control for
    Request: Must describe with reasonable particularity each item or category of items
    Response: For each item, need to response whether will permit or object (including reason)
    Producing:
            o As they are kept in usual course of business or must organize as requested
    Requesting from nonparties: Subpoena under FR 45
    Spoliation: Improper destruction can lead to presumption against you
    Difficulties: may lead to lots of docs; who pays for production

Requests for Admission – FR 36
    Authorizes party to send to another party a written request to admit, for purposes of pending
       matter only, truth of any matters within scope
    If don’t respond w/in 30 days: deemed admitted
    Answer:
            o Specific denial: Must respond to substance of matter
            o Lack of knowledge as reason for failing to admit/deny: Must have made reasonably
    Objection: Grounds must be stated; can’t object solely on ground that request presents
       genuine issue at trial
    Motion Regarding Sufficiency of Answer/ Objection: Requesting party can move to
       determine sufficiency of answer or objection
            o If court finds answer doesn’t comply with FR, it can either deem matter admitted, or
               ask for amended answer

Deposition – FR 30
    Questions asked to anyone (not necessarily party) under oath
    Restrictions: 1) Each party up to 10 depos (up to 7 hour days)
    Notice:
            o If deponent is party: Initiate depo by sending notice to all parties in action
                      If want deponent to produce docs at depo: Notice must be accompanied with
                         request under FR 34 to produce docs
            o If deponent is nonparty: Must be subpoened for depo under FR 45
    Corporation: Must provide person who can testify about info known or reasonably available
        to organization
    Objection to question: Witness must still answer (objection preserved); no need to answer if
        implicated privileged material
    Termination: May terminate depo if it is conducted in bad faith, or in manner that
        unreasonably annoys, embarrasses, or oppresses deponent or party
            o Motion filed in court where action pending; depo suspended till get order
    Failure to Attend Depo: Other side can recover reasonable expenses and attorneys fees

Physical/ Mental Exam – FR 35
    Must have court order before can do this
    2 reqs before issuing order:
        1. Good Cause: It needs info from exam that can’t get elsewhere
        2. In Controversy: Matter being examined is in dispute in case

           If party does obtain exam of another party, she must provide a copy of independent
            examiner’s report to examined party if she requests it
                 o In response, party who submitted to exam must provide copies of any reports she has
                     from her examining physician

    Deposition by Written Questions – FR 31
        Rarely used; Typically used when witness is far away; similar limitations to oral depo

    Deposition to Perpetuate Testimony – FR 27
        Rarely used; Used when think witness may die soon, or evidence might spoil (used before
            action is even filed)

Davis v. Precoat Materials, ND Ill 2005
Rule: Discovery that is narrowly tailored to allegations of complaint is discoverable, even if it involves
personnel files of employers other than parties to suit.
         P (employees) files suit against D alleging they had been exposed to hostile working
             environment; P moves to compel discovery about discriminatory complaints made against D
             by other employees

Chiquita Int’l v. MW Bolero Reefer, SDNY 1994
Rule: Non-testifying witness is generally immune from discovery; non-testifying witness is one who was
hired to make an evaluation in connection with expected litigation, but will not testify. FR26(b)(4)(B).
          D thought witness was fact witness rather than expert so should testify; court disagrees,
            distinction not btw fact/expert, rather btw those witnesses whose info was obtained in normal
            course of business and those hired to make evaluation in connection with expected litigation
          This is diff from witness whose info was obtained in normal course of biz (e.g., medical
            examiner subject to ordinary discovery on routine autopsy)
          P gets non-testifying witness, marine engineer, to examine cargo loss claim; D tries to get
            expert’s testimony by deposition

       Can take work product of another attorney when:
           o Materials are discoverable (under FR 26(b)(1), and party shows it has substantial
               need for materials, and cannot, w/o undue hardship, obtain them by other means
       Cannot take work product when:
           o It is mental impressions, conclusions, opinions, or legal theories of attorney or other
               rep concerning litigation

Hickman v. Taylor, SC 1947
Rule: Written and oral materials taken by a party’s counsel in course of prep for litigation not considered
protected by attorney-client privilege, but considered work-product. Not discoverable absent necessity or
      T, owner of tugboat that sank, obtained statements from survivor
      H (represented deceased) requested copies of statements but T refused

     FR 37(a)(1): Party who believes opponent has failed to comply with proper discovery request
      must first confer with opponent, to see if can resolve w/o court
         o Party seeking discovery may move for order compelling answer, designation, production,
              or inspection; and for appropriate sanctions.

   FR 37(a)(2): If court grants motion, but party still doesn’t respond adequately, court may impose
    various sanctions
   FR 37(c)(1): If fail to provide info or identify witness, party is not allowed to use that info or
    witness, unless failure was justified or harmless. Can sanction.
   FR 37(c)(2): If fail to admit what is requested, and requesting party later finds matter true, can
    move for reasonable expenses. (Some limitations)
   FR 37(d): If fail to attend own depo, serve answers, or respond to request for inspection:
   FR 37(e): Failing to provide electronically stored info due to good-faith loss: no sanctions

2 Tests to Grant PI:
    1. If court finds that:
            a. P will suffer irreparable injury if injunctive relief not granted
            b. P will probably prevail on merits
            c. In balancing equities, D will not be harmed more than P is helped by injunction
            d. Granting injunction is in public interest
    2. Grant PI even if chance that P will win on merits is uncertain
            a. Need “fair chance of success on merits”
            b. Damage that P may suffer is “sufficiently serious”


3 Ways:
1) Default Judgment & Dismissals
       a) Default Judgment – FR 55
             Used against D (or some party against whom counterclaim or crossclaim asserted) who
               doesn’t appear at trial, or fails to do sth he had to do
             2 stages: 1) Entry of Default        2) Entry of Default Judgment (by clerk or judge)
       b) Involuntary Dismissals – FR 41
             Used against P (if P fails to prosecute or comply with FR or court order, D may move to
               dismiss or any claim against it)
       c) Voluntary Dismissals – FR 41
             P voluntarily decides to drop case (often coz agreed to settlement or want to file
             If P does this early on, no problem; if try to do it later, court may impose restrictions

2) Settlements
         a) Can settle case and have P dismiss the case; or
         b) Could settle the case but stipulate the settlement on the condition that the case will be dropped

Kalinauskas v. Wong, Nev 1993
Rule: Parties can depose a non-party witness even though this witness previously signed a confidentiality
agreement with the current D (when P wasn’t a party to that earlier agreement). But can only depose
about what happened (facts) and not about terms of settlement.
     If settlement included factual statements about what happened, then deposing party cannot “get”
        this info since settlement was covered under confidentiality agreement
     Full discovery into all aspects of the agreement would discourage settlements, but preventing
        deposition would condone buying the silence of potential witnesses with a confidential settlement
     P claim sex discrimination; a prior employee had sex discrim suit against same employer but they
        agreed to confidentiality agreement as a condition of settlement

3) Alternative Dispute Resolution
        a) Methods:
              Negotiation Leading to Settlement
              Mediation
              Form of getting non-binding decisions
              Arbitration (binding decisions by 3rd party)
        b) Expanded scope of Federal Arbitration Act: so there would be less litigation
              SC read statute to pre-empt state law whenever underlying cause had anything to do with
                interstate commerce
        c) Problems
              Faster? Yes
              Cheaper? Only sometimes
              Impartial? Not sure
              Can we really assume parties agreed?
              Limits on arbitration? How far can you modify procedures w/ it still being valid?
              Changes in remedies? Can you say no punitive damages when they would otherwise be

4) Contracting for Private Adjudication: Arbitration and its Variant
Ferguson v. Countrywide (9th Cir) & Carter v. Countrywide (5th Cir)
Rule: Standardized contract usually held enforceable, unless unconscionable. To be unconscionable, must
be procedural and substantive unconscionability.
Procedural (way in which contract was enacted) unconscionbility if there is oppression or surprise
(unequal bargaining power)
Substantive: actual terms of agreement are so one-sided they shock consciousness
     Results in case differs: coz TX (5th Cir) contract law more inclined not to find unconscionability
     Factors (and why the 2 cases are inconsistent)
            o Arbitration Fees:
                      5th Cir: said employer was going to pay for them anyway
                      9th Cir: pointed at provision and said unconscionable
            o Arbitration Agreement Seems Unequal
                      9th Cir: focuses that it excludes several types of claims for employee, but includes
                         good number of claim types for employer
                      Part of worry is that arbitrator chosen by Employer, and arbitrator wants to get
                         paid to do it again, so more likely to find in favor of employer
            o Discovery Limits:
                      9th Cir: Focus on limit that was placed against D (each side limited to 3 depos,
                         but employee limited to ask about 4 subjects only (in those depos)

Ferguson v. Writers Guild
Rule: In reviewing decision of a private admin review board, reviewing court will grant deference to
board’s expertise and require P to exhaust board’s remedies before bringing suit. Judicial review of
private board’s determination restricted to considering whether party challenging the determination
demonstrated a material and prejudicial departure from procedures specified in board’s manual.
     Reasons court reluctant to set aside results of arbitration:
            o Parties agreed to using arbitration, so that’s what they get
            o Reduce caseloads

Judicial Management of Litigation
FR 16 provides Pre-trial Conferences Where Judges & Parties Can Discuss:
    1) Scheduling (discovery deadline, date of trial, deadline for certain motions etc.)
    2) Try to specify and narrow the issues
    3) Settlement: judges may suggest to parties or may require settlement conference in court;
         sometimes judges go so far as to express prediction as to how case will come out at trial (creating
         situation for one of parties to fear they’d lose at trial)
    4) Judges can suggest or require Alternative Dispute Resolutions (i.e. mediation or arbitration)
    5) Some judges give them mini-trial to give parties some idea of how case would actually come out

Summary Judgment – FR 56
    Summary judgment should be rendered if a) no genuine issue as to any material fact; and b)
      movant is entitled to judgment as a matter of law
          o Designed to allow early resolution of cases where party meets minimal burden to plead
             elements of a compensable claim, but can’t prove one or more of the elements
          o Not meant to try facts, but only to determine whether there are genuinely contested issues
             of material fact
          o Burden on party opposing summary judgment: show he has legally competent evidence
             upon which jury could resolve factual issues in his favor
    Other uses for summary judgment:

            o   Avenue for resolution of cases where parties agree on underlying facts but disagree as to
                legal implications of facts
            o Resolve individual claims in multi-claim lawsuit
       Difference btw FR12(b)(6): addresses purely legal question; whether, if P proves all allegations in
        complaint will he have established a cause of action entitling him to some relief from court?
       Either party may move for summary judgment, w/ or w/o supporting affidavits, depositions,
        answers to interrogatories admissions, admissible documents (these materials don’t have to be
        admissible at trial themselves, but must demonstrate that party has evidence that would be
       Moving party has responsibility of informing court of basis for its motion and identifying
        portions of record which it believes demonstrates absence of genuine issue of material fact
       Opposing party must respond (cannot rely merely on allegations or denials in its own pleadings)
            o Need to produce evidence in form that would be admissible at trial
            o Need to set out specific facts showing genuine issue at trial
            o If no response, summary judgment will be entered against them
       Sanctions: If submit affidavit in bad faith; court can order party to pay other party expenses
        (including attorney’s fees incurred as a result), or be held in contempt

Celotex v. Catrett (SC)
Rule: To survive motion for SJ, party with burden of proof must make showing sufficient to establish
existence of an element essential to that party’s case.
     Facts: P sues husband’s employer for death of husband coz of asbestos exposure. P has burden of
        proof on showing that husband had exposure coz of employer’s products.
     When P seeks SJ:
            o P’s Burden to Get SJ: Evidence that husband was exposed to asbestos from employer’s
                 products (affidavits from people that saw husband dealing w/ asbestos product while at
                      If husband hadn’t died, and submitted affidavit saying he was exposed: not
                         enough for SJ at trial, coz jury would be able to decide whether or not they
                         believed him
            o D’s Burden to Not Let P get SJ: contradictory evidence or some kind of challenge in
                 nature of impeachment (e.g., P has introduced affidavits from 2 co-workers, but those 2
                 have own claim against Celotex)
     When D seeks SJ:
            o D’s Burden to Get SJ: Show P has no evidence
                      E.g., point to discovery materials
                      E.g., D send P interrogatory asking what evidence P has to prove husband
                         exposed to asbestos; if P writes back “none” or sth inadmissible, then D would be
                         able to ask for SJ
            o P’s Burden to Not Let D Get SJ: P must come up with some evidence

Difference Between Directed Verdict & Summary Judgment
    1) Timing:
            a. SJ: only before trial
            b. DV: only after trial
    2) Burden:
            a. SJ: even though moving party doesn’t have burden of proof at trial, moving party still has
               some sort of burden
            b. DV: just look at burden of whoever has it at trial
    3) More Discovery Available:

a. SJ: possibility of giving party more time to come up with more evidence
b. DV: no more discovery


Is There a Right to Trial by Jury? FR 38, 39
    1. Old claim – How would have it have been tried in 1791?
            a. Monetary – court of law; have right to jury
            b. Equity; no right to jury
    2. New claim:
            a. Congressional intent/language (i.e. statute might say what kind of relief might be
                available, Title 7 said court can give “injunction, restore you to job and give backpay and
                other equitable relief”  no right to jury)
            b. Based on remedy (typically: monetary  legal, right to jury; injunction  equity, no
                right to jury)
            c. Based on analogy (bad approach, coz any can be analogized in diff ways to other things)
            d. Functional Approach: which cases are better suited to be tried by jury/judge (e.g.,
                complicated issues might not be so good for jury)
    3. Several claims: (some equitable some legal)
            a. Classify claims (which are law/ equity)
            b. Then try law claims first with jury
            c. Then judge tries equitable claims by himself (and bound by facts decided by jury in part

Special Cases: Replevin (law); Ejectment (legal); Restitutionary remedies (equitable)

Chauffeurs, Teamsters & Helpers v. Terry, SC 1990
Rule: When remedy is for monetary damages (backpay, here), there is right to jury.
    Suit brought for breach of collective bargaining agreement btw union and employer
    2 part test: 1) Compare action to 19th century actions prior to merger of law and equity
       2) Examine remedy sought to determine whether it is legal or equitable
    Union’s claims that there is no right to jury (under 1st part of test):
            o Action is in essence, attempt to vacate arbitration award (equity)  Court rejected, coz
               no arbitration wrt union’s duty of fair representation
            o Analogize suit to action for breach of fiduciary duty (e.g., suit concerning trust) (equity)
                Not enough, coz right to jury trial depends more on nature of issues to be tried; there
               was underlying breach of contract here
    Under 2nd part test: Court found that remedy was compensatory damages (legal)

Amoco Oil v. Torcomian, 3d Cir 1983
Rule: When there’s a mixture of claims (some legal, some equitable), judge must classify claims; jury
tries legal claims first, then judge tries equitable claims (while being bound by facts found by jury).
      P owned service station; D wanted to take station over and become P’s franchise dealers
      D operated station for some months but never executive franchise agreement
      Parties disagreed about whether P’s rep had ever promised D that they would be accepted as
      P sought: ejectment, permanent injunction
      D sought: damages, injunction

Selecting a Jury - §1861-65
§1861: Must have fair cross-section of community in district/division wherein court convenes
§1862: No discrimination of jurors by race, color, religion, sex, national origins, economic status

Doesn’t require any particular makeup on any particular panel – as long as pool is cross-section, and then
select at random from this pool.
§1863: Each district court must have a written plan for random selection of jurors. Plan must specify:
     Whether the names of prospective jurors shall be selected from voter registration lists or lists of
         actual voters. Then plan shall prescribe some other source(s) of names in addition to voter lists
         where necessary to foster policies according to §1861-62
     Provide for a master jury wheel into which names of those randomly selected shall be placed
     Specify groups of persons, whose members shall on individual request, be excused from jury
         service (e.g., undue hardship, extreme inconvenience, volunteer safety personnel)

Disqualifying a Judge - §455
    If suspect judge is biased: some states permit peremptory challenge of judges by filing timely
        affidavit alleging in conclusory terms that judge is prejudiced against challenge
    Recusal of judges: 2 broad categories:
        1. When judge has served as a lawyer in the matter in controversy or where he has served in
            governmental employment and expressed an opinion concerning merits of case or
        2. Recusal in cases where judge’s impartiality might be reasonably questioned (e.g., have
            financial stake involved)

In re Boston Children’s First, 1st Cir 2001
Rule: Regardless of judge’s actual impartiality, where a reasonable person might perceive bias to exist,
the judge is required to recuse herself.
      Newspaper ran article about pending matter; judge responded to article
      Her comments could have been construed as implying that P’s claims were not meritorious

Disqualifying a Juror
    Voir Dire: Screening to eliminate jurors whose sympathies or inabilites to understand evidence
        might cause them to reach irrational verdicts (FR47)
    Judge also instructs jurors not to discuss case with others and decide only on basis of evidence in

Thompson v. Altheimer & Gray, 7th Cir 2003
Rule: A party is entitled to a new trial, based on court’s failure to remove a biased juror, even if party
failed to use one of its peremptory challenges to strike the juror, where the court has failed to inquire
whether the juror could issue an impartial decision unclouded by juror’s prior held belief.
      When prospective juror manifests a prior belief that is both material and contestable, it is judge’s
         duty to determine whether juror is capable of suspending that belief for trial
      Litigant can let biased juror be seated and seek to reverse adverse judgment (if one results) on
         appeal on grounds of bias

Judges Controlling Juries
1. Jury Instructions
     Parties must request instructions, and in absence of objection, can’t complain about judge’s
     Instructions have 2 audiences:
         1. Jurors: want simplified easy-to-follow path
         2. Appellate courts: want nuanced, balanced, all-inclusive statement of law
     Judges can also tell jury what he thinks of evidence (carefully)
              o Power is hedged though

2. Size and Decision Rules – FR 48
     Bigger juries: more representative
     Requiring unanimity: can result in more hung juries; but found that juries think more when
         require unanimity
     In federal cases: unanimous verdicts still required unless parties agree to accept nonunanimous
         verdicts; jury must initially have at least 6 and no more than 12 members

Judgment as a Matter of Law (JMOL)/ Directed Verdict) – FR 50(a)
Plaintiff’s Burden of Production

No Proof for P (W)      (X)                      (Z)                              (R)     (Y)

       X: Point at which P has produced evidence that is sufficiently persuasive that a jury, acting
        rationally, could find that she has proved each element of case
             o If P’s evidence crosses this line, she has satisfied her burden of production
             o Must go to jury for decision
       Z: Point where evidence is evenly balanced
             o In civil case: P’s burden of proof is to establish that her version of events is more
                 probably true than D’s
       Y: Point where P’s proof becomes so strong that any reasonable jury would have to conclude that
        P has proved her case
       Between X and Y: area for legitimate differences of opinion as to proper outcome -> jury decides

Timing of the Motion
    In civil case: P present her evidence first; she has burden to produce enough evidence on each
       element of her claim to pass X line and reach jury
            o Typically, D will move for JMOL at close of Ps evidence, on ground that evidence
               doesn’t cross X line (doesn’t satisfy P’s burden to produce credible evidence in support
               of each element of claim)
                    If judge agrees: enter JMOL for D (end of case)
                    If judge disagrees, continue with case
            o D then presents her evidence
                    After this, D or P may move for JMOL

Standard for Entering JMOL
     FR 50(a)(1): JMOL may be entered when there is no legally sufficient evidentiary basis to find
       for nonmoving party
     When is evidence legally sufficient? 3 standards:
       1. Case should go to jury if there is even a scintilla of evidence to support opposing party’s case
                 a. If P has any evidence to support elements of her claim, she will get to jury
       2. Requires judge to consider only evidence that supports the case of nonmoving party; judge
            must assume truth of all evidence offered by nonmoving party, take all inferences from
            evidence in light most favorable to that party, and enter JMOL only if that evidence would
            not support verdict for nonmoving party
       3. Requires judge to consider nonmoving party’s evidence in its most favorable light (same as
            2nd standard) but also to consider any evidence put forward by moving party that is not
            impeached or contradicted by opposing party’s evidence
                 a. If considering all that evidence, there can be but one reasonable conclusion as to the
                     verdict, the judge should enter JMOL for moving party

                b. This is the federal standard (FR 50(a))

Pennsylvania Railroad v. Chamberlain, SC 1933
Rule: D is entitled to JMOL when proven facts give equal support to each of 2 inconsistent inferences,
where P has the burden of proof.
    Where there is direct conflict of testimony about a matter of fact, the question must be left to jury
       to determine  Here, no conflict
    P’s witness: Saw car on which victim was riding slow down and cars behind it gain speed; later
       heard noise like a crash, but didn’t look  Inferred a crash
    D’s witnesses: No collision occurred
    Court said: Circumstantial evidence was so insubstantial that it didn’t justify going to jury

Judgment Notwithstanding the Verdict (JNOV) –FR 50(b)
    Renewed motion for JMOL: same standard (either motion will be granted if the opponent’s
      evidence is so weak that no reasonable jury could have reached a verdict for him)
          o Difference: in JNOV, a jury has already found for the opposing party
          o Thus, JNOV motion asserts that jury acted irrationally, in disregard of evidence in
              reaching verdict for party opposing motion
          o JNOV is actually also called JMOL
          o Options available to judge:
                   Allow judgment on the verdict, if the jury returned a verdict
                   Order a new trial
                   Direct entry of judgment as a matter of law

Rationale for Allowing the Renewed Motion
     What purpose is served by allowing JNOV, since standards for JNOV and JMOL are same, why
        not simply grant the motion before the jury deliberates?
     Coz often decision that evidence is too weak to go to jury is often debatable, and judge’s entry of
        JMOL before jury deliberates will often be appealed
            o If CoA concludes that evidence was sufficient to send case to jury, it will reverse judges
                entry of judgment and order new trial; since jury never rendered verdict in 1st trial, this
                will then require wasteful repetition of entire trial
            o If judge withholds decision on sufficiency of evidence by by denying motion for JMOL
                at close of evidence, this scenario can be avoided
     Requirement: Must have moved for JMOL before case went to jury

Scenario 1:
D seeks JMOL at close of evidence  Judge grants motion, discharges jury, enters judgment for D  P
appeals  CoA finds evidence legally sufficient to go to jury, reverses, sends back to TC  Case must
be retried from beginning (waste of time and $)

Scenario 2:
D seeks JMOL at close of evidence  Judge denies or defers decision on motion  Case goes to jury,
renders verdict for P  After verdict, D renews motion for JNOV  Judge grants JNOV  P appeals 
Appellate court fins evidence sufficient to go to jury, reverses  CoA orders judgment entered on jury
verdict (no retrial needed)

Prerequisites to the Renewed Motion
     Several important limitations on right to seek JNOV
            o FR 50(b): Motion must be filed within 10 days of entry of judgment on jury’s verdict

            o   FR 50(b): Party may only move for JNOV after verdict if he made same motion (JMOL)
                before verdict
                     2 reasons:
                        1) Seventh Amendment: right to jury
                        2) A party who moves for JMOL at close of evidence must state grounds for
                            concluding cause shouldn’t be submitted to jury
                                a. This alerts court and opposing party as to defects in that party’s case
                                   before jury has gone out, while there is still time to offer evidence to
                                   cure defect

New Trial – FR 59
    Motion must be filed within 10 days of entry of judgment on jury’s verdict
    2 general categories of cases where courts have traditionally granted new trials:
       1. For errors in trial process
           a. Errors of this type may taint jury’s decision-making process, leading it to consider
               inappropriate info in reaching a verdict or to use wrong rules of law
           b. If losing party moves for new trial on this basis, FR 59 allows judges to vacate verdict
               and order case retried in order to assure parties fair trial procedure
       2.       If judge believes trial process was fair, but result is clearly wrong
           a. Judge can grant new trial if verdict is against clear weight of evidence
           b. Judge can’t displace verdict simply coz he disagrees with it
           c. But he can order new trial in cases where evidence is strong enough to rationally support
               the jury’s verdict, but he believes that verdict is seriously erroneous
               Difference btw new trial and judgment as a matter of law:
           o JMOL: court is saying that winner of verdict had no evidentiary support for at least 1
               essential element of claim/ defense; results in immediate entry of judgment for loser of
                     For JNOV, need to have moved for JMOL before case went to jury
           o New Trial: doesn’t make winner out of loser, just begins contest again; standard is lower
               (against great weight of evidence)

Conditional New Trials
    A judge can grant a new trial limited to one issue of the whole case
        1. New Trial Limited to Damages
            o Judge must be convinced that whatever influences led jury astray on damages didn’t
               infect judgment on liability as well
        2. Remittitur and Additur
            o Remittitur: judge orders new trial unless P agrees to accept reduced damages
            o SC held that P must get choice btw new trial and accepting reduced compensatory
            o Additur violates 7th Amendment (but remittitur doesn’t) – for federal courts (not state
                    Remittitur: simply involves modifying decision actually made by jury, while
                        additur involves making an award that no jury as has ever made

Combining Motions and Appellate Review
              FR 50(c)(1): Trial judge confronted with combined motion for JNOV and new trial must
      not only rule on JNOV motion, but also make a conditional ruling on alternative motion for new

            o     That way, CoA can address both issues at once if case were appealed
                 FR 50(d): Addresses scenario where party wins verdict, and then has it taken away by
        trial judge who grants JNOV for other party
             o Party can, after verdict is nullified by grant of JNOV, move for new trial on basis of
                 objections within 10 days of entry of judgment for opposing party
                 FR 50(e): Addresses case where party wins verdict, but has it taken away on appeal coz
        CoA concludes that JNOV should have been granted for other party
             o Party who won at trial (but now faces judgment against her) may have arguments that 1st
                 trial was unfair
             o Rules allow her to advance those arguments for a new trial in CoA

Lind v. Schenley Industries, 3d Cir 1960
Rule: Where basis for ordering new trial is that verdict was against weight of evidence, it is usually stated
that a motion for a new trial on this ground is nonreviewable coz it is within discretion of TC.
                 But this discretion must still be exercised according to ascertainable legal standards;
        reversal is possible if there is abuse of discretion or TC failed to apply proper standards

Peterson v. Wilson, 5th Cir 1998
Rule: Courts cannot grant new trial simply coz it would have come to a different conclusion than jury did.
                Receiving testimony from jurors after they have returned their verdict, for purposes of
        ascertaining that jury misunderstood its instruction is prohibited

(Problem only arises in cases where federal court has jurisdiction coz of diversity.)
Rules of Decision Act: “The laws of the several states, except where the Constitution or Acts of Congress
otherwise require or provide, shall be regarded as rules of decisions in civil actions in the courts of the
US, in cases where they apply”

General Framework
   1. Conflict Between Federal Constitutional Provision and State Law
           a. Constitutional requirement prevails
   2. Conflict Between Federal Statute and State Law
           a. Federal statutes are also supreme Law, so they prevail
           b. Issue is whether Congress had authority to enact the federal statute
           c. Hanna holds that Congress has constitutional authority to enact statutes governing
              procedure in federal courts if “while falling in the uncertain area btw substance and
              procedure, they are rationally capable of classification as either”
           d. If this “arguably procedural” test is met, federal statute prevails
   3. Conflicts Between Federal Rule and State Rule
           a. Rules Enabling Act says Supreme Court can promulgate rules about procedure
           b. FR applies if:
                    i. FR is constitutional? (So far, none declared unconstitutional)
                   ii. FR is authorized? (So far, none declared unauthorized)
                  iii. Does the rule apply? Can you construe FR narrowly, so it doesn’t conflict with
                       state law? (If so, both apply)
   4. Conflicts Between Federal Judicial Practice and State Law
           a. Federal judicial practices are invalid if they purport to establish rules of primary behavior
              (e.g., duty to trespassers rule) when there is no federal constitutional power to make it
           b. Where practice relates to conduct of litigation, court should generally apply state rule if
              they differ; and federal practice could prove “outcome determinative”

Swift v. Tyson, SC 1841
Rule: “Laws” in Rules of Decision Act construed to mean statutes (not common law). Federal courts must
follow state statutes, but not common law. (Overturned)
     Justifications:
             o Develop consistent set of rules that can be applied across the board
             o State courts will be biased in construing own CL (discriminate against those out-of-state),
                 so will set discriminatory precedents

Erie v. Tompkins, SC 1938
Rule: “Laws” refers to statutes and common law.
     Justifications
         1. Legislative history: earlier draft of Act actually said it includes CL
         2. Political and Social Implications:
            a. Didn’t produce uniformity, coz states didn’t follow federal courts
            b. Discrimination: those who can get diversity jurisdiction can choose btw federal and state
         3. Jurisprudential view:
            a. Law is made by both court and statute (it is sth promulgated by government)
         4. Constitutional Concerns:
            a. Limits on Federal Power: Congress doesn’t have power to create substantive CL

           b. Separation of Powers: Congress might be able to do it, but courts have no general power
               to legislate about CL issues
       Why overrule Swift v. Tyson now?
           o Black and White Cab case: Corporation reincorporate in anther state so can get diversity
               jurisdiction and use federal law (seems bad)
           o Cutting bad on power of federal judges – progressive position
           o Less need for it, since now there are case reporters and federal courts can look it up
       Which state’s law should federal court use? Should apply law in which that federal court sits

Guaranty Trust v. York, SC 1945
Rule: Outcome-determinative test created. Outcome of litigation in federal court should be substantially
the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in state court.
If issue substantially affects outcome, then it is substantive  Apply state law
      Justifications:
             o Rights shouldn’t vary depending on where you sue
             o Try to reduce forum shopping
      SoL: Is this issue of substance or procedure?  Court says substance  state law
             o Substantive:
                       Outcome determinative test: If you apply state vs federal SoL, it affects result
                       Purpose of SoL: regulating things outside of court (people should be able to get
                           on with their lives and not worry about being sued after a period of time)
             o Procedural:
                       Purpose of SoL: regulating things that go on in court (make sure no clogging)

Byrd v. Blue Ridge Rural Electric Corp., SC 1958
Rule: Balancing test. Even if, under the outcome determinative test, there is significant affect on the
outcome, need to balance other interests. Both state and federal courts have interest, federalism needs to
recognize and balance them.
     Issue: Who decides whether P counts as employee of D or not?
            o State law: Judge decides
            o Federal law: Jury decides
     Under outcome-determinative test:
            o Judge vs. jury: outcome might be diff (but maybe not, coz look at whole package: federal
                jury comes with strings attached)
     Balancing test:
            o Federal concern: 7th Amendment favors jury trial (even though no right to jury here, stil
                generally favor jury, strong interest)
            o State concern: Doesn’t really have a particular reason for just having a judge
     After balancing, here seems federal have better reasons
     Even with balancing test, many of state procedural rules would supersede FR (wait till Hanna to

Hanna v. Plumer, SC 1965
Rule: 3 Questions to ask
   1. Is there a Federal Rule? If so, don’t care about state law, coz Rules Enabling Act says SC can
       promulgate rules about procedure
           a. Is rule constitutional and authorized? (So far, none have been problematic)
           b. Does the rule apply? (Can construe FR narrowly, so it doesn’t conflict with state law?)

    2. Outcome determinative test (York): Ask whether rule affects people forum shopping? Would it
       lead to some sort of unjust discrimination? (Ex ante perspective: of someone who hasn’t filed suit
    3. Balancing test (Byrd)
     Issue: Service of process (state: must serve personally; FR: leave at home ok)
     State concerns:
            o Under Outcome determinative test:
                    State law should govern coz it would change outcome of case; under state law, P
                        loses; under federal law, P can litigate case
            o Under balancing test:
                    State has rule to make sure executor gets notice of case
     Federal concerns:
            o Under balancing test:
                    Concern that person will try to evade lawsuit, so more efficient to leave at home
     Under part 1) this is FR, with no problems and rule applies  use FR
     Even if FR doesn’t apply, Outcome Determinative and Balancing Tests show that federal law
       should prevail, coz:
            o Outcome Determinative Test: Following FR doesn’t really affect people forum shopping
            o Balancing test: Both have valid interests
     Another approach (Harlan, concurrence): Is the rule regulating primary conduct (conduct outside
       courthouse)  If yes, then substantive  Use state law

Gasperini v. Center of Humanities, SC 1996
Rule: Under balancing test, when both federal and state have good reasons, try to consider both policies in
     State statute told courts to look at damage awards more carefully than they or federal courts had
        ever done; remove if excessive, and explain decisions
     Federal policy: Based on 7th Amend (No verdict of jury shall be reexamined)
     State policy: Try to limit damages; make sure damages is not excessive
     Solution: There will be review (such as state legislated), but won’t happen in appeals court, only
        in trial court (paying deference to jury reexamination clause in 7th Amend)

Semtek Int’l v. Lockheed Martin, SC 2001
Rule: Even when FR governs, courts might come along and reread FR in strange way to avoid problem.
    P sues in CA, dismissed on merits w/ prejudice coz CA’s SoL (2years) passed; P sues in MD
       (longer SoL)
    FR 41(b): “Unless dismissal order states otherwise, a dismissal under this subdivision and any
       dismissal not under this rule – except one for lack of jurisdiction, improper venue, or failure to
       join a party under FR 19 – operates as an adjudication on the merits.”
            o Court re-reads FR 41(b) to apply only to re-filing in the same district
    How does court get to this reading?
            o Rule would be invalid if it were to bar claim in MD coz it would decrease P’s substantive
    What should P have done if court didn’t reread FR 41(b)? Ask TC to specify in its order that
       dismissal is w/o prejudice (explain that MD will allow P to file and CA has no objections)
    After push FR 41 out of picture, which rule does apply?
            o Court says: now dealing with preclusive effect of federal court judgment and that is
                 determined by federal CL
                      In some situations, federal CL incorporates state law when: 1) underlying claim
                        is state law claim, and 2) no federal interest involved

   Holding: Because the claim-preclusive effect of a federal court’s dismissal “upon the merits” of a
    diversity action on state SoL grounds is governed by a federal rule, which in turn (in diversity
    cases) incorporates the claim-preclusive law that would be applied by state courts in the State in
    which the federal court sits, the CoA erred in holding that the CA federal court’s dismissal “upon
    the merits” necessarily precluded the MD state-court action.

German Civil Procedure (Langbein Article)
1) Pleading: More detailed, need to have proof and attach documents
2) Discovery:
    1.     No separate discovery, fact-finding done by judge
    2.     No sharp distinction btw pretrial and trial
    3.     Judge might put in less effort than lawyers in US (less at stake)
    4.     Lawyers not allowed to speak to witnesses (can’t bias them)
    5.     Only way to find out what someone has to say is to call them to court  not as thorough
    6.     More extensive privileges, but no hearsay rule
    7.     Restrictions to extent which can get evidence from opposing party
    8.     Judge writes summary (not verbatim, so can be affected by own predispositions)
3)         Summary Judgment: Not necessary, coz judge can evaluate as case goes on
4)         Alternative dispute resolution: Judge encourages it; can make prediction about probable result
5)         Way Evidence Comes in:
    1.     No jury; so no real rules of evidence, since only 1 judge
    2.     Expert witnesses: controlled and designated by judge (more neutral, not used often)
    3.     No cross-examination: Judge just asks witnesses questions; lawyers can make suggestions
6)         Differences in Judges: Career judges
7)         Lawyers: Do less, paid less
8)         Appeals: Can hear evidence and review de novo
9)         Jurisdictional issues: No SMJ since don’t have 2 sets of courts (though also have problem of
    court vs. administrative court)
10)        Joinder: Can have multiple Ps and Ds; no class action
11)        Advantages of German system:
    1.     Levels playing field btw rich and poor (since judge does most of work)
    2.     Lowers costs (e.g., no need for both sides to find witnesses, experts)
    3.     Quicker
12)        Advantages of American system:
    1.     More ventilation of dispute of all aspects, coz parties have more interest than judge
    2.     More party autonomy
    3.     No need to put as much trust in govt bureaucracy


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