JURISDICTION

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         CIVIL PROCEDURE OUTLINE 2006 (Struve)

14th amendment ..................................... 4            Defensive Non-Mutual Collateral
28 U.S. C. §1441 ................ See Removal                        Estoppel........................................... 61
28 U.S.C. § 1391 .................... See Venue                   Depositions ......................................... 32
28 U.S.C. §1331 .... See Federal Question                         DISCOVERY..................................... 30
  Jurisdiction                                                    Discovery Sanctions............................ 35
28 U.S.C. §1332 ................ See Diversity                    Diversity Jurisdiction .......................... 10
  Jurisdiction                                                    domicile................................................. 4
28 U.S.C. §1367 .......... See Supplemental                       due process ............................................ 4
  Jurisdiction                                                    Edmondson v. Leesville Concrete Inc . 49
28 U.S.C. §1404 ....See Change of Forum                           Entry of judgment ............................... 52
28 U.S.C. §1927 .................................. 17             Exxon Mobil Corp. v. Allapattah
Access Now, Inc. v. Southwest Airlines,                              Services, Inc. ............................. 25, 30
  Co .................................................... 18      Fairview Park v. Al-Monzo Construction
Additur ................................................ 50          Co .................................................... 24
Amendment of Pleadings .................... 21                    Federal Question Jurisdiction ........... 8, 9
amount in controversy................... 10, 11                   Federal Rule of Evidence 612 ............. 39
Anderson v. Liberty Lobby, Inc ........... 44                     Federated Department Stores, Inc. v.
Appeals ............................................... 54           Moitie ........................................ 57, 58
Asahi Metal Industry Co. v. Superior                              Final Judgment Rule‖ ......................... 55
  Court ................................................. 6       Forum non conveniens ........................ 14
Attorney-Client Privilege .................... 37                 General jurisdiction ............................See
Blonder Tongue Laboratories Inc. v.                               General verdict .................................... 49
  University of Illinois Foundation .... 61                       General verdict with interrogatories ... 50
Burden of Persuasion .......................... 43                Grable and Sons Metal Products Inc. v.
Burden of production .......................... 43                   Darue Engineering and
Burger King v. Rudzewicz ..................... 5                     Manufacturing................................... 9
Burnham v. Superior Court of California                           Harmless Error‖ Rule .......................... 55
  ........................................................... 7   Helzberg’s Diamond Shops v. Valley
Celotex Corp. v. Catrett ...................... 45                   West Des Moines Shopping Center . 26
Certification ........................................ 32         Hickman v. Taylor ............................... 39
Change of Forum ................................ 14               impleader of third parties ..... See Rule 14
Civil Docket ........................................ 53          in personam jurisdiction ............... 4, 7, 8
Class Action ........................................ 30          in rem jurisdiction ................................. 5
Code pleading ..................................... 15            International Shoe Co. v. Washington .. 6
collateral estoppel ............. 56, 59, 60, 61                  Interrogatories ..................................... 33
Colston v. Barnhart............................. 44               Intervention by third parties . See Rule 24
Compulsory counterclaims ................. 23                     Jones v. Flowers.................................... 8
Compulsory Joinder of Parties ............ 26                     Jones v. Ford Motor Credit Company 12,
Conference of parties .......................... 32                  24
corporations..................................... 4, 14           Judgment ............................................. 52
Counterclaims ..................................... 11            Judgment as a matter of law................ 51
cross-claims................................... 23, 28            Judgment by Default ........................... 46
                                                                  JURISDICTION ................................. 4


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Jury Selection ...................................... 48        Reasonableness test ........... See minimum
Jury Verdicts ....................................... 49          contacts
Kedra v. City of Philadelphia ............. 25                  Relief from Judgment or Order ........... 53
Lassiter v. Department of Social                                Remittitur ............................................ 50
  Services ............................................. 4      Removal .............................................. 13
Leatherman v. Tarrant County Narcotics                          Requests for admission ....................... 34
  and Coordination Unit .................... 17                 Res judicata ................................... 56, 58
Levy v. Kosher Overseers Association of                         Right to Trial by Jury .......................... 47
  America, Inc .................................... 59          Rule 11 .............................. 15, 16, 17, 20
Louisville and Nashville RR. Co. v.                             Rule 12 ........................ 17, 18, 19, 20, 28
  Mottley .............................................. 9      Rule 13 .............................. 23, 24, 25, 28
Mandatory disclosures ........................ 30               Rule 14 ........................ 12, 13, 27, 28, 29
mandatory joinder of parties See Rule 19                        Rule 15 .......................................... 21, 22
Mas v. Perry ........................................ 10        Rule 16 .......................................... 32, 42
Matsushita Elec. Co. v. Zenith Radio                            Rule 18 .......................................... 23, 29
  Corp ................................................ 44      Rule 19 .............................. 12, 19, 26, 27
Matthews v. Eldridge ............................ 4             Rule 20 .......................................... 12, 25
McGee v. International Life Insurance                           Rule 23 ................................................ 30
  Co ...................................................... 7   Rule 24 .......................................... 12, 29
Mecom v. Fitzsimmons Drilling .......... 13                     Rule 26 .................................... 30, 31, 32
minimum contacts ................. 4, 5, 6, 7, 8                Rule 30 ................................................ 33
Motion for a new trial ......................... 52             Rule 33 .......................................... 33, 34
Mullane v. Central Hanover Bank &                               Rule 34 .......................................... 34, 36
  Trust Co. ........................................... 8       Rule 35 ................................................ 34
Notice pleading ................................... 15          Rule 36 .................................... 31, 34, 37
Offensive Non-Mutual Collateral                                 Rule 37 ........................ 32, 35, 36, 37, 42
  Estoppel........................................... 61        Rule 38 .......................................... 47, 48
Offer of Judgment ............................... 42            Rule 39 ................................................ 48
Owen Equipment & Erection Co. v.                                Rule 41 .................................... 40, 41, 57
  Kroger ............................................. 29       Rule 42 ................................................ 23
Parklane Hosiery v. Shore .................. 61                 Rule 48 ................................................ 48
Pennoyer v. Neff ................................ 4, 8          Rule 49 ................................................ 50
Peremptory Challenges ....................... 49                Rule 50 .......................................... 51, 52
Perkins v. Benguet Consolidated Mining                          Rule 51 ................................................ 49
  Company ...... See General Jurisdiction                       Rule 54 ................................................ 52
Permissive counterclaims.................... 24                 Rule 55 .......................................... 45, 46
Permissive joinder of parties See Rule 20                       Rule 56 ................................................ 44
Physical and Mental Examinations ..... 34                       Rule 58 ................................................ 52
PLEADINGS ..................................... 15              Rule 59 .................................... 52, 53, 54
Prayer for relief ................................... 18        Rule 60 .................................... 46, 53, 54
Pretrial conferences ............................. 42           Rule 68 ................................................ 42
Production of Documents and Things                              Rule 69 ................................................ 53
  and Entry Upon Land for Inspection                            Rule 7 ............................................ 20, 21
  and Other purposes ......................... 34               Rule 79 ................................................ 53
Protective orders ................................. 31          Rule 8 ...................................... 15, 17, 20
quasi in rem jurisdiction ....................... 5             Rule 9 .................................................. 17



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Scope of discovery .............................. 31        The Reply ............................................ 21
Settlement ........................................... 41   United Mine Workers v. Gibbs............ 11
Seventh Amendment ........................... 47            Upjohn Co. v. United States ................ 38
Shaffer v. Heitner .................................. 8     Venue .................................................. 13
Special verdict ..................................... 50    Voir Dire ............................................. 48
Specific jurisdiction .............................. 7      Voluntary Dismissal............................ 40
Spurlin v. General Motors Corp ......... 52                 Washington State Physicians Insurance
Staats v. County of Sawyer.................. 58               Exchange & Association v. Fissons
Strawbridge v. Curtiss ........................ 10            Corporation..................................... 35
stream of commerce .......................... 6, 7          Well-Pleaded Complaint‖ rule .............. 9
Subject Matter Jurisdiction ................... 8           Work-Product Privilege ...................... 39
summary judgment.............................. 30           World Wide Volkswagen Corp. v.
Summary Judgment ...................... 42, 44                Woodson ............................................ 6
Supplemental Jurisdiction 11, 12, 24, 25,                   Worthington v. Wilson ........................ 22
   27, 29, 30                                               Writ of Mandamus .............................. 56
Temple v. Synthes Corp....................... 26            Zuk v. Eastern Pennsylvania Psychiatric
Territorial Jurisdiction ...................... 4, 5          Institution of the Medical College of
The Answer ......................................... 20       Pennsylvania ................................... 16
The Complaint .................................... 17




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JURISDICTION
I.    Due Process
      a. 14th amendment
               i. Gives everyone the right to ―due process of law.‖ In Lassiter v.
                  Department of Social Services the Supreme Court stated that, while
                  the term is so vague as to avoid precise definition, it expresses the
                  requirement of ―fundamental fairness.‖
      b. What are the requirements of due process ? The Matthews v. Eldridge test
               i. Determination of due process requires balance of three factors:
                      1. Private interests
                      2. Government interests
                      3. The risk that the procedures used will result in erroneous
                          decisions
II.   Territorial Jurisdiction , General
      a. In personam
               i. Generally: in personam jurisdiction is jurisdiction over a specific
                  person.
                      1. Pennoyer v. Neff : Courts have always traditionally had
                          jurisdiction over any person within their state and over all
                          of the land within the state.
              ii. Bases
                      1. Natural persons
                              a. physical presence
                              b. domicile
                                       i. presence + intent to stay
                              c. consent
                                       i. by appearance
                                      ii. by contract
                                     iii. by seeking a license to do business in the
                                          state
                              d. long-arm statutes
                      2. corporations
                              a. incorporation
                              b. corporate presence
                              c. consent
                              d. long-arm statutes
             iii. Types
                      1. Specific
                              a. Jurisdiction only over the individual only in the
                                  context of the specific act that satisfies the
                                  minimum contacts standard.
                      2. General
                              a. Jurisdiction over any claim in the state, even one
                                  completely unrelated to in state activities if the




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                                  person‘s (corporate or physical) activities are
                                  ―continuous and systematic.‖
       b. In Rem
               i. Generally: in rem jurisdiction concerns the relationship of all
                  parties who might have an interest in a piece of land. (e.g., quiet
                  title claims)
       c. Quasi in rem
               i. Generally: quasi in rem jurisdiction concerns a single individual‘s
                  relationship with a piece of property.
              ii. Type One
                       1. resolves the rights of only certain claimants to a property
                           (e.g., foreclosure on a mortgage)
             iii. Type Two
                       1. establishes rights to the property, but the underlying action
                           does not concern the property (e.g., tort or contract claims
                           against defendant who owns property).
                       2. In this action, property brought under jurisdiction by
                           attachment of court.
III.   Bases for Territorial Jurisdiction
       a. In Personam
               i. General Notes on Approach
                       1. Is there a statutory basis for jurisdiction (in Federal
                           Court, look to state’s long-arm statute)?
                       2. Does the constitution permit the exercise of personal
                           jurisdiction
                               a. First, see if minimum contacts . If minimum
                                    contacts, then
                               b. Five-factor test to determine if decision would
                                    comport with “traditional notions of fair play
                                    and substantial justice.”
              ii. Statute
                       1. look at state‘s long-arm statutes
                       2. Federal courts allowed to exercise jurisdiction over a
                           person who would be subject to jurisdiction by the courts of
                           the state where the district court sits (FRCP Rule 4(k)(1).
             iii. Constitutional analysis
                       1. minimum contacts
                               a. a focus on the defendant’s contacts
                                        i. including imputed contacts
                               b. Requirements (Burger King v. Rudzewicz )
                                        i. that the defendant could reasonably foresee
                                           the possibility of litigation in a state.
                                               1. This ―foreseeability‖ approach
                                                   cannot be taken too far—O‘Connor‘s
                                                   opinion in Asahi indicates that intent
                                                   is also an important factor.



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       ii. that the defendant purposefully directed
           commercial activities at a particular state.
c. Factors to consider in context of contract (Burger
   King )
        i. Prior negotiations and contemplated future
           consequences
       ii. Terms of the contract
      iii. Parties‘ course of dealing
d. ―stream of commerce ‖
        i. extends only to the place where the
           consumer buys the item (e.g. if I buy a car in
           New York and it explodes there, the
           company is liable to suit there. If I drive to
           Nebraska and it explodes there, the company
           had no reason to expect to be subject to
           litigation there).
       ii. Mere awareness that a product is being used
           in a state is probably not enough—the
           company must intend to get its product in
           that market (J. O‘Connor in Asahi).
e. Cases
        i. International Shoe Co. v. Washington
                1. jurisdiction valid as long as it does
                    not offend ―traditional notions of fair
                    play and substantive justice.‖
                2. by acting within a state, corporation
                    gains protections and benefits of the
                    law of that state—also has the
                    obligations imposed by that state.
       ii. World Wide Volkswagen Corp. v. Woodson
                1. Foreseeability is not, by itself,
                    sufficient to establish minimum
                    contacts .
                2. The question to ask is whether a
                    corporation could reasonably have
                    anticipated that it would be brought
                    to court in a given state.
      iii. Asahi Metal Industry Co. v. Superior Court
                1. Minimum contacts must have been
                    on purpose (O‘Connor, in plurality)
      iv. Burger King v. Rudzewicz
                1. Minimum contacts requires both that
                    the defendant be able to reasonably
                    foresee the possibility of litigation in
                    a state and that the defendant




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                                           purposefully direct commercial
                                           activities at a state.
                       f. Purpose of minimum contacts
                                i. protects defendants from litigating in an
                                   inconvenient forum
                               ii. Acts to ensure that states do not usurp the
                                   rights of other states.
                              iii. Due Process clause gives predictability.
                                   Defendants should be able to structure their
                                   conduct to subject themselves to possibility
                                   of suit when that risk is in their interest.
               2. Reasonableness test (balance of five factors)
                       a. Burden on the Δ
                       b. Interests of the Π
                       c. Interest of the state in having a forum for its citizens
                       d. Burden on the court system
                       e. Shared interest among states in substantive social
                           policies
               3. General jurisdiction (continuous and systematic) (Perkins
                   v. Benguet Consolidated Mining Company )
                       a. Domicile
                                i. Presence + intent to remain
                       b. Incorporation
                       c. Doing business
               4. Specific jurisdiction (McGee v. International Life
                   Insurance Co.)
                       a. Arise/relate from act
                       b. Foreseeability
                       c. Who initiated the contacts?
                       d. Purposefully directed
                       e. ―stream of commerce ‖
      iv. Special cases
               1. in-state service (Burnham v. Superior Court of California )
                       a. A court can acquire jurisdiction over a defendant if
                           that defendant is served with process while visiting
                           the state in which suit in brought.
               2. consent
               3. status cases (marriage, divorce)
               4. necessity
b. In Rem
        i. Statute
               1. look at state‘s long-arm statutes
       ii. Constitutional analysis
               1. Cases brought quasi in-rem are still subject to the
                   minimum contacts analysis used for in personam
                   jurisdiction .



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      c. Quasi in rem
              i. Statute
             ii. Constitutional analysis
                     1. Cases brought quasi in-rem are still subject to the
                         minimum contacts analysis used for in personam
                         jurisdiction .
                     2. Cases
                              a. Pennoyer v. Neff : a court can acquire jurisdiction
                                  by attaching a defendant‘s property before the trial
                              b. Shaffer v. Heitner
                                      i. All assertions of state court jurisdiction—
                                          including those brought quasi in rem—
                                          should proceed according to minimum
                                          contacts standard.
IV.   Notice /Service
      a. Service is distinct from jurisdiction. Just because someone has been
         served does not necessarily mean that the court has jurisdiction.
         Conversely, just because the court has jurisdiction does not mean that the
         defendant can be called into court with insufficient notice.
      b. Notice must be such as is reasonably calculated to reach the interested
         parties (Mullane v. Central Hanover Bank & Trust Co. ).
              i. What would a reasonable person who actually wanted to provide
                 notice do? (Jones v. Flowers )
      c. Questions to ask when considering constitutionality of service of process
              i. What is the government‘s interest?
             ii. What is the individual‘s interest?
            iii. What method of service was chosen?
            iv. What are the alternative methods of service?
V.    Subject Matter Jurisdiction
      a. Rationale/Justification
              i. Specialization—judges in federal courts will acquire expertise in
                 federal law.
             ii. Life-time appointment shields decisions from locally powerful
                 political interests
            iii. Federal interest in protecting federal jurisprudence
            iv. Predictability and uniformity in questions of federal law.
      b. Federal Question Jurisdiction
              i. Constitutional analysis
                     1. Article III provides that Congress can give the federal
                         courts jurisdiction over ―all Cases, in law and Equity,
                         arising under this constitution, the Laws of the United
                         States, and Treaties made, or which shall be made, under
                         this Authority…‖
                     2. Just because the courts have the constitutional right to
                         exercise jurisdiction, doesn‘t mean they have the statutory
                         right.



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ii. Statutory analysis
        1. 28 U.S.C. §1331 —Federal Question Jurisdiction
               a. Summary
                         i. ―The district courts shall have original
                            jurisdiction of all civil actions arising under
                            the Constitution, laws, or treaties of the
                            United States.‖
               b. Interpretation
                         i. ―Well-Pleaded Complaint‖ rule: Federal
                            courts acquire jurisdiction ONLY when the
                            complaint brought forward by the plaintiff
                            asserts a claim under federal law or under
                            the constitution. (Louisville and Nashville
                            RR. Co. v. Mottley )
                        ii. Pre-emption
                                1. when a federal law has completely
                                    pre-empted state law, then making a
                                    state-law claim will be the same as
                                    making a claim under federal law
                                    (e.g., certain labor provisions, like
                                    ERISA).
                                        a. See Grable and Sons Metal
                                             Products Inc. v. Darue
                                             Engineering and
                                             Manufacturing where
                                             Supreme Court held that a
                                             state law claim could give
                                             rise to federal question
                                             jurisdiction as long as the
                                             case will turn on an
                                             application of federal law.
                                                  i. ―The question is, does
                                                      a state-law claim
                                                      necessarily raise a
                                                      stated federal issue
                                                      actually disputed and
                                                      substantial, which a
                                                      federal forum may
                                                      entertain without
                                                      disturbing any
                                                      congressionally
                                                      approved balance of
                                                      federal and state
                                                      judicial
                                                      responsibilities.‖
                       iii. State/Federal law entanglements



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                                                                            BDF


                                      1. Two-prong test to see if federal
                                         jurisdiction for claim under state law
                                         that has federal elements
                                             a. Must prove that it won‘t
                                                 upset balance of labor
                                                 between state and federal
                                                 courts
                                             b. Federal interest must be
                                                 ―substantial and weighty.‖
c. Diversity Jurisdiction
       i. General: Parties must be completely diverse and the amount in
          controversy must exceed $75,000. See Mas v. Perry .
              1. Purpose
                       a. Protect out-of-staters from local prejudice
                       b. Uniformity of law
      ii. Constitutional analysis
              1. Article III of the constitution provides that Congress can
                  give federal courts jurisdiction over controversies ―between
                  citizens of different states.‖
     iii. Statutory analysis
              1. 28 U.S.C. §1332 —Diversity Jurisdiction
                       a. Summary
                               i. §1332 (c): Corporation
                                      1. a citizen of the state in which it is
                                           incorporated and of the state where it
                                           has its principal place of business
                              ii. §1332: Unincorporated associations
                                      1. a citizen of the state where it has its
                                           principal place of business and the
                                           state under whose laws it is
                                           organized.
                             iii. Class action fairness act--§1332(d)
                                      1. no need for complete diversity in
                                           class-actions. Now, Π class must be
                                           diverse from Δ class.
                                      2. amounts in controversy can be
                                           aggregated by every individual
                                           within the class.
                       b. Interpretation
                               i. Parties must be ―completely diverse‖—all
                                  the plaintiffs must be of different citizenship
                                  than all the defendants. (Strawbridge v.
                                  Curtiss )
                              ii. Citizenship
                                      1. if domiciliary, then a citizen
                             iii. Amount in controversy



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                                            1. Legal Certainty test
                                                  a. If defendant wants to keep a
                                                      claim out of federal court on
                                                      grounds that amount in
                                                      controversy requirement is
                                                      not met, he or she must prove
                                                      ―to a legal certainty‖ that
                                                      plaintiff will not recover
                                                      more than $75,000.
                                            2. Aggregation
                                                  a. Plaintiff can aggregate all
                                                      claims in a single complaint
                                                      to meet requirement.
                                                  b. Multiple plaintiffs (unless
                                                      class action) cannot
                                                      aggregate their claims.
                                                  c. Counterclaims are not
                                                      considered part of the amount
                                                      in controversy .
VI.   Supplemental Jurisdiction
      a. General
              i. Supplemental jurisdiction allows a court to adjudicate a state law
                 claim that arises out of an act that also created a claim under
                 federal law.
      b. Constitutional analysis
              i. Article III gives congress the power to confer jurisdiction on all
                 cases. This suggests that multiple claims, some being federal some
                 being state, can be tried in federal court as one ―case.‖
             ii. The state and federal claims must arise ―from a common nucleus
                 of operative fact.‖ (United Mine Workers v. Gibbs )
                     1. question: does this go to limit of Article III authorization?
                         This question has not been answered by the courts.
      c. Statutory analysis
              i. 28 U.S.C. §1367 —Supplemental Jurisdiction
                     1. §1367 (a)
                             a. ―In any civil action of which the district courts have
                                 jurisdiction, the district courts shall have
                                 supplemental jurisdiction over all other claims that
                                 are so related to claims in the action within such
                                 original jurisdiction that they form part of the same
                                 case or controversy under Article III of the United
                                 States Constitution.‖
                                      i. Seems to give courts maximum jurisdiction
                                         allowed by Article III.
                     2. §1367(b)




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                       a. If the plaintiff is proceeding based on diversity
                           jurisdiction, the court does not have subject matter
                           jurisdiction over claims by plaintiffs against anyone
                           joined under
                                i. Rule 14 : impleader of third parties
                               ii. Rule 19 : mandatory joinder
                              iii. Rule 20 : Permissive joinder
                              iv. Rule 24 : Intervention by third parties
                       b. The court may not extend supplemental jurisdiction
                           over claims
                                i. By persons joined as plaintiffs under Rule
                                   19
                               ii. By persons seeking to intervene as plaintiffs
                                   under rule 24
                              iii. WHEN exercising supplemental jurisdiction
                                   would be inconsistent with the requirement
                                   for complete diversity.
               3. §1367(c)
                       a. allows court to refuse to assert supplemental
                           jurisdiction if
                                i. the claim raises a novel or complex issue of
                                   state law
                               ii. the claim substantially predominates over
                                   the claim or claims over which the district
                                   court has original jurisdiction
                              iii. in exceptional circumstances, there are other
                                   compelling reasons for declining
                                   jurisdiction.
                       b. Second Circuit holds in Jones v. Ford Motor Credit
                           Company that discretion under 1367(c) should only
                           be exercised when the court can identify ―truly
                           compelling‖ circumstances. The court should also
                           not decline jurisdiction unless doing so would
                           promote economy, convenience, fairness and
                           comity.
               4. §1367(d)
                       a. statute of limitations tolling continues for
                           supplemental claims, including state-law claims,
                           while the claims are pending in federal court
      ii. If the federal law claim is merely an ―appendage‖ to a state law
          claim, the case should be remanded to state court.
d. Supplemental Jurisdiction and Joinder
       i. §1367(a)
               1. Under §1367(a) there is supplemental jurisdiction over
                   ALL claims that are joined with claims for which there is
                   already subject matter jurisdiction even if there would be



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                           no subject matter jurisdiction over the claims if those
                           claims were standing alone.
                       2. Supplemental jurisdiction applies to counterclaims
                           brought under rule 13 in BOTH diversity and subject
                           matter jurisdiction cases.
               ii. §1367(b)
                       1. supplemental jurisdiction cannot be granted over claims
                           joined under Rule 14 , 19, 20, or 24 if the underlying claim
                           is one grounded in diversity.
VII.    Removal
        a. General
                i. To be removable, it must be the case that the complaint could
                   originally have been filed in federal court.
               ii. Attempts to avoid removal
                       1. Plaintiff is ―master of the complaint‖—plaintiff can avoid
                           federal court by not making federal law claims.
                       2. Plaintiffs can assign interest to a non-diverse party to defeat
                           diversity (Mecom v. Fitzsimmons Drilling Co .)
                       3. Plaintiffs can defeat removal by joining defendants who
                           destroy diversity. BUT this must be done in good faith and
                           not just to defeat diversity.
              iii. Remands to state court after an attempted removal are generally
                   not subject to appeal unless the removal was attempted under
                   diversity jurisdiction.
              iv. Rule of unanimity: all defendants must agree to remove a case to
                   federal court before it can be removed
        b. Removal Under subject matter jurisdiction—28 U.S. C. §1441 (a)
                i. Any civil action brought in state court of which the district courts
                   have original jurisdiction may be removed by the defendants.
        c. Removal Under diversity jurisdiction
                i. Removal is unavailable if any defendant is a citizen of the state in
                   which the suit is brought. (§1441 (b))
               ii. Amount-in-controversy
                       1. plaintiffs can avoid federal court by claiming damages less
                           than $75,000.01 even if they might be entitled to more.
        d. Removal Process: 28 U.S.C. §1446
                i. Must be filed in the district in which the state court sits.
               ii. Removal from state court is automatic. Can only be challenged in
                   the federal court by a motion for remand.
                       1. motion for remand must be made within 30 days of
                           removal (§1447 (c))
              iii. Notice of removal must be given within 30 days of notice to
                   defendant
VIII.   Venue
        a. Statutory provisions
                i. 28 U.S.C. § 1391



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              1. §1391 (a)—diversity cases
                      a. After jurisdiction established, action can be brought
                          only in
                                i. The judicial district in which any defendant
                                   resides, if all defendants reside in the same
                                   state
                               ii. A judicial district in which a substantial part
                                   of the events giving rise to the claim, or
                                   where a substantial part of the property
                                   under controversy, is located.
                              iii. A judicial district is which any defendant
                                   may be found, if there is not district where
                                   the action can otherwise be brought.
              2. §1391 (b)—subject matter cases
                      a. see above
              3. An alien may be sued in any district
              4. corporations reside in any judicial district in which it is
                  subject to personal jurisdiction at the time the action is
                  commenced.
b. Change of Forum: 28 U.S.C. §1404
       i. Civil action may be transferred for the convenience of parties and
          witnesses to any other district or division where it might have been
          brought
      ii. Upon motion, consent or stipulation of all parties, any action can
          be transferred, at the discretion of the court, to any division in the
          same district.
c. Forum non conveniens
       i. General
              1. a common law doctrine that allowed defendants to have a
                  case dismissed because of an inconvenient forum.
              2. Generally invoked at discretion of trial court and not
                  subject to appeal.
              3. Now generally not invoked because it can be simply be
                  transferred to the appropriate forum under §1404
      ii. Factors governing dismissal (Gilbert )
              1. Private
                      a. Relative ease of access to sources of proof
                      b. Availability of compulsory process for witnesses
                      c. Cost of obtaining witnesses
                      d. Possibility of view of premises
                      e. Ability to enforce judgment
              2. Public
                      a. Court congestion
                      b. Unfairness of burdening non-related citizens with
                          jury duty
                      c. Interest in having localized disputes tried at home



                                                                               14
                                                                               BDF


                           d. Interest in trying case in forum familiar with local
                              law
                           e. Interest in avoiding unnecessary conflict of laws.

PLEADINGS

I.   Pleadings , general
     a. General
             i. Function of pleading
                    1. simply to provide notice to the other party of the pendency
                        of the action and the nature of the pleader‘s contention in
                        order to facilitate informed preparation for discovery,
                        settlements, or disposition on a more complete factual
                        record.
            ii. Notice pleading
                    1. used in federal district court and most state courts.
                    2. FRCP Rule 8 (a)
                            a. Complaint need only provide ―a short and plain
                                statement of the claim showing that the pleader is
                                entitled to relief.‖
           iii. Code pleading
                    1. used in a minority of state courts (but minority includes NY
                        and CA)
                    2. requires somewhat more than notice pleading.
     b. Rules
             i. Pleadings Allowed— FRCP Rule 7a
                    1. ―there shall be a complaint and an answer; a reply to a
                        counterclaim…an answer to a cross-claim…a third party
                        complaint, if a person who was not an original party is
                        summoned under the provisions of rule 14; and a third
                        party answer, if a third party complaint is served.‖
                    2. All other pleadings are motions.
            ii. FRCP Rule 8 —General rules of pleading
                    1. 8(a)
                            a. All pleadings shall contain
                                     i. A short and plain statement of jurisdiction
                                        unless the claim needs no new grounds
                                    ii. A short and plaint statement of the claim
                                        showing that pleader is entitled to relief
                                   iii. A demand for judgment for the relief the
                                        pleader seeks
                    2. 8(e)
                            a. pleading shall be simple, concise and direct.
                            b. Pleadings in the alternative are permitted
                                     i. Within the bounds of Rule 11 (b), which sets
                                        standard for representations to the court.


                                                                                 15
                                                                BDF


iii. FRCP Rule 11 (sanctions on pleadings)
       1. General
              a. Serves a policing function. Designed to prevent
                 frivolous pleadings
       2. Summary of Rule 11 :
              a. Requires that every pleading, motion or other paper
                 must be signed
              b. Declares that the signature shall be treated as
                 certification that the document
                      i. Has been prepared after a REASONABLE
                          investigation and that to the best of the
                          signer‘s knowledge, information, and belief
                          the document meets minimum standard of
                          factual merit, legal merit and lack of
                          improper purpose.
              c. Imposes sanctions on those who violate the rule
                      i. Sanctions can be non-monetary (and often
                          are)
              d. See Zuk v. Eastern Pennsylvania Psychiatric
                 Institution of the Medical College of Pennsylvania
                 (court ruled that attorney failed to make a
                 reasonable investigation into factual or legal
                 contentions implied in complaint. Court held that
                 sanctions for violation of rule 11 should be enough
                 to deter similar conduct in future).
       3. Rule 11 (b)
              a. By presenting a pleading, motion or other paper to
                 the court, an attorney certifies that the respective
                 representation to the court is:
                      i. NOT being presented for an improper
                          purpose
                     ii. That the claims are warranted in existing
                          law or a by a nonfrivolous argument for
                          modification of the law
                    iii. The allegations have evidentiary support or
                          are likely to get support after discovery.
       4. Mechanics of Rule application
              a. Motion is made separately from other motions.
              b. Shall NOT be filed for 21 days after service to
                 opposing party.
                      i. During the 21 days, opposing party can
                          withdraw or correct their pleading
                     ii. The ―safe harbor‖ provision
              c. Nature of the sanctions
                      i. ―shall be limited to what is sufficient to
                          deter repetition of such conduct or



                                                                  16
                                                                                 BDF


                                         comparable conduct by others similarly
                                         situated.‖
                                     ii. Can be non-monetary
                                    iii. Can be an order to pay a penalty into court
                                             1. can order offending party to pay all
                                                 of some of the reasonable attorney‘s
                                                 fees accrued by the innocent party ―if
                                                 imposed on motion and warranted
                                                 for effective deterrence.‖
                     5. Parties subject to Rule 11
                             a. Clients cannot be forced to pay monetary damages
                                under Rule 11 (b)(2) (requirement of legal merit)
            iv. 28 U.S.C. §1927
                     1. allows a district court to award costs against an attorney
                         who ―multiplies proceedings in any case unreasonably and
                         vexatiously.‖
                             a. Narrower in scope than rule 11
                             b. ―vexatiously‖ has been interpreted to mean
                                subjective bad faith.
      c. Burdens
              i. Burden of pleading
                     1. plaintiff must plead all the elements of a claim
             ii. burden of production
                     1. must bring forth facts and evidence to sustain claim
           iii. burden of persuasion
                     1. party with burden of persuasion bears risk of non-
                         persuasion
      d. Heightened pleading standards
              i. FRCP Rule 9
                     1. Rule 9 (b)
                             a. fraud or mistake must be pleaded with particularity.
                             b. Motion to dismiss a claim under rule 9(b) is the
                                functional equivalent of a motion to dismiss under
                                Rule 12 (b)(6)
             ii. Generally, heightened pleading standards are not imposed.
                     1. see Leatherman v. Tarrant County Narcotics and
                         Coordination Unit (court found that 5th‘s circuits rule for
                         pleadings under §1983           was a heightened pleading
                         standard).
                     2. All the Rules require is a ―short and plain statement‖ of the
                         claim under Rule 8 (a)
II.   The Complaint
      a. General
              i. Commences the action in a court of law
             ii. BUT does not toll statute of limitations —tolling requires an actual
                 service of process.



                                                                                    17
                                                                                   BDF


                       1. must serve summons and complaint within 120 days of
                          filing.
       b. Requirements for federal court
               i. a short and plain statement of the grounds of the court‘s
                  jurisdiction
              ii. a short and plain statement of the claim showing that the pleader is
                  entitled to relief
             iii. a demand for judgment for the relief the pleader seeks.
       c. Prayer for relief
               i. if the suit is contested by the defendant, the relief is not limited to
                  the kind described in the prayer. BUT, if defendant fails to answer
                  and a default judgment is entered, the relief is limited to that
                  sought in the prayer.
III.   Defenses and Objections to the Complaint
       a. Rule 12
               i. Rule 12 (b)
                       1. Following defenses must be made before pleading if a
                          further pleading is permitted
                               a. lack of jurisdiction over the subject matter
                               b. lack of jurisdiction over the person
                               c. improper venue
                               d. insufficiency of process
                               e. insufficiency of service of process
                               f. failure to state a claim under which relief can be
                                   granted
                               g. failure to join a party under rule 19
                       2. Rule 12 (b)(6)
                               a. When filed, judge will read the complaint as though
                                   all of the facts are true. To prevail on a 12(b)(6)
                                   motion, it must be the case that no recovery would
                                   be possible under ANY legal theory.
                               b. Supreme court has said that ―a complaint should not
                                   be dismissed for failure to state a claim unless it
                                   appears beyond doubt that the plaintiff can prove no
                                   set of facts in support of his claim which would
                                   entitle him to relief.‖
                               c. Judgment on a 12(b)(6) motion can be appealed.
                               d. After a 12(b)(6) motion has been entered, plaintiff
                                   is often given leave to amend.
                               e. If 12(b)(6) claim also functions as an answer, the
                                   court is likely to invoke rule 56 and grant a
                                   continuance for discovery.
                               f. See Access Now, Inc. v. Southwest Airlines, Co .
                                   Court rules that complaint put forth by Access Now
                                   fails to state a claim under the Americans with




                                                                                      18
                                                                         BDF


                          Disabilities Act because a website is not a place of
                          public accommodation under the act.
      ii. 12(c)—Motion for judgment on the pleadings
              1. This is similar to a 12(b)(6) motion but is made after the Δ
                  has filed an answer.
              2. the legal standard for granting or denying a 12(c) motion is
                  the same as that for a rule 12(b)(6) motion.
     iii. 12(e)—motion for a more definite statement
              1. ―If a pleading to which a responsive party is permitted is so
                  vague or ambiguous that a party cannot reasonably be
                  required to frame a responsive pleading, the party may
                  move for a more definite statement before interposing a
                  responsive pleading‖
              2. often not granted on the grounds that discovery will make
                  things clearer
              3. Can be made either by the Δ in response to complaint or by
                  Π in response to answer
              4. If Granted
                      a. Respondent to the motion is required to replead in a
                          more detailed manner
              5. If not granted
                      a. Not appealable
                      b. Respondent must then file the applicable responsive
                          pleading
              6. Test
                      a. ―does the pleading give the party enough
                          information from which to draft an answer and
                          commence discovery?‖
b. Timing
       i. Motions under rule 12 must be made either before the next
          pleading as an independent motion or in the next required pleading
          (the answer).
      ii. Motions that can be made at ANY time
              1. failure to state a clam upon which relief can be granted:
                  12(b)(6)
              2. failure to joint an indispensable party under Rule 19
              3. failure to state a legal defense to a claim
              4. lack of subject matter jurisdiction (can be brought up on
                  court‘s own recognizance)
     iii. ALL OTHER MOTIONS UNDER RULE 12 ARE WAIVED IF
          NOT FILED INDEPENDENTLY BEFORE THE NEXT
          REQUIRED PLEADING OR IN THAT PLEADING ITSELF!!
              1. Rule 12 (g)—if a party makes a motion under rule 12, they
                  can join as many other rule 12 motions as possible. BUT,
                  those rule 12 motions must be made at the SAME TIME.




                                                                           19
                                                                               BDF


                    2. The following defenses are waived if not inserted into an
                       independent motion before the pleading or in the
                       responsive pleading itself (or an amendment thereto made
                       under rule 15)
                           a. Lack of jurisdiction over the person
                           b. Improper venue
                           c. Insufficiency of process
                           d. Insufficiency of service of process
IV.   The Answer
      a. General
             i. Rule 7(a)
                     1. An Answer is the responsive pleading to
                            a. A complaint
                            b. A cross claim
                            c. A third-party claim
                     2. Must be signed
                     3. Subject to Rule 11
            ii. Rule 8 (b)
                     1. ―A party shall sate in short and plain terms the party‘s
                        defenses to each claim asserted and shall admit or deny the
                        averments upon which the adverse party relies.‖
                     2. If party does not have enough information to deny, they can
                        say this and that constitutes a denial.
           iii. Rule 8 (c)
                     1. Affirmative defenses must be put into the answer.
           iv. Rule 8 (d)
                     1. if averments in a pleading are not denied, then they are
                        admitted.
                     2. This means that evidence later proving the admitted issue is
                        inadmissible.
      b. Denials in the answer
             i. Legal consequences
                     1. imposes on the plaintiff the burden of proving the
                        allegation denied
      c. Timing
             i. Rule 12 (a)
                     1. Answer must be served within 20 days of the complaint
                            a. Exceptions
                                     i. Government has 60 days to file an answer
                                    ii. If Δ makes a motion under rule 12 and that
                                        motion is either denied or postponed for
                                        later disposition, then Δ has only 10 days
                                        from notice of the courts action to file the
                                        answer.
                                   iii. If Δ has waived formal service under rule
                                        4(d), then has 60 days to file the answer



                                                                                 20
                                                                                  BDF


                                             1. 60 days begins from the date when
                                                the request for a waiver was sent.
                                             2. 90 days if Δ is outside the United
                                                States.
V.    The Reply
      a. Rule 7 (a)
             i. Plaintiff is allowed to reply to a counterclaim
            ii. Court may order plaintiff to reply to an answer or third-party
                answer
      b. Timing
             i. Reply must be filed within 20 days after service of the answer.
VI.   Amendment of Pleadings —Rule 15
      a. An amended pleading displaces the prior pleading.
      b. Rule 15 (a)
             i. Amendment ―as a matter of course‖
                     1. ―A party may amend the party‘s pleading once as a matter
                         of course at any time before a responsive pleading is
                         served.‖
                             a. If no responsive pleading is permitted and the action
                                  has NOT been placed on the trial calendar, then
                                  amendment can be made within 20 days of initial
                                  service.
            ii. Response to amended pleading
                     1. response to an amended pleading must be made in the
                         longer of either
                             a. the time remaining for the response or
                             b. within 10 days after service of the amended
                                  pleading.
           iii. If Amendment is not made before a responsive pleading has been
                filed, then amendment is only allowed ―by leave of court or by
                written consent of the adverse party.‖
                     1. ―leave shall be given when justice so requires.‖
      c. Rule 15 (b)
             i. Amendments to pleadings made in response to evidence introduced
                at trial
                     1. if the issues not raised by pleading are tried by express or
                         implied consent of the parties, then the rule directs that the
                         pleading be allowed to conform to the evidence presented.
                     2. if a party objects to evidence at trial because it is not within
                         the framework established by the pleadings, then the rule
                         directs the court to allow amendment of the pleadings
                         ―freely when the presentation of the merits of the action
                         will be subserved thereby and the objecting party fails to
                         satisfy the court that the admission of such evidence would
                         prejudice the party in maintaining the party‘s action or
                         defense upon the merits.‖



                                                                                     21
                                                                                  BDF


       d. Rule 15 (c)—Relation back
              i. Important for situations involving statute of limitations
             ii. 15(c)(1)
                     1. amendment of pleading relates back to date of the original
                         pleading if the relation back is permitted by the law that
                         provides the applicable statute of limitations .
            iii. Rule 15 (c)(2)
                     1. permits relation back of new claims in an amended
                         pleadings if the claim or defense ―arose out of the conduct,
                         transaction, or occurrence‖ set forth in the original
                         pleading.
            iv. Rule 15 (c)(3)
                     1. Used to change the name of a party
                     2. Requirements
                             a. Must meet Rule 15 (c)(2)
                             b. The party to be brought in under the amendment
                                 must, within 120 days of service of summons and
                                 complaint
                                      i. ―have received such notice of the institution
                                         of the action that the party will not be
                                         prejudiced in maintain a defense on the
                                         merits.‖
                                     ii. Have known or should have known that the
                                         action would have been brought against the
                                         party without the mistake
                     3. See Worthington v. Wilson . (Illinois district court does not
                         allow relation back of named defendants when defendants
                         were unknown in original pleading because the amendment
                         was not correcting a ―mistake.‖)
       e. Rule 15 (d)
              i. Supplemental pleadings are those that set forth events that have
                 transpired since the original pleading (they do not AMEND the
                 original pleading).
             ii. Requires leave of the court.

JOINDER RULES

  I.   General
       a. Joinder rules determine the size and complexity of litigation
       b. Modern view of joinder
               i. Very liberal joinder rules
              ii. NOTE: the liberal joinder rules make it possible for an parties to
                  join claims and parties that are not permitted under federal subject
                  matter jurisdiction.




                                                                                    22
                                                                                BDF


            iii. The FRCP CANNOT EXPAND THE SUBJECT MATTER
                 JURISDICTION of the federal courts. EACH CLAIM MUST BE
                 SCRUTINIZED.
II.   Joinder of Claims
      a. Rule 42
              i. Allows for consolidation of actions involving ―a common question
                 of law or fact.‖
             ii. Also allow the court to order separate trials on any claim.
            iii. This rule helps to make cases manageable given the very liberal
                 joinder rules.
            iv. Decision made under rule 42 not reviewable until final judgment.
                     1. this means that appellate court will have to decide if choice
                         was so bad as to justify retrial
      b. Rule 18 (a)
              i. Any party asserting a claim for relief may join ANY other claim to
                 that claim.
                     1. no requirement that claims be related to one another (but
                         must be brought by same party in same pleading)
             ii. NOTE/CAUTION: this permits claims to be joined that are not in
                 subject matter jurisdiction of court
                     1. BUT NOTE: Once a party has made a claim the court has
                         the power to hear under federal subject matter jurisdiction,
                         rule 18 allows the party to attach extra claims not
                         independently supported by subject matter jurisdiction, but
                         that may be supported by supplemental jurisdiction.
                             a. See Fairview Park Excavating Co. v. Al Monzo
                                 Construction Co. where court assumed jurisdiction
                                 over Pennsylvania corporation‘s cross claim against
                                 fellow Pennsylvania citizen under supplemental
                                 jurisdiction even when the original diversity claim
                                 had been dismissed on its merits.
      c. Rule 13 —counterclaims and cross-claims
              i. Compulsory counterclaims —Rule 13 (a)
                     1. NOTE: Make sure to check for the possibility of
                         compulsory counterclaims for EACH party any time a
                         claim is made against them (cross claim, etc.)
                     2. Test for compulsory counterclaims
                             a. A counterclaim is compulsory if there is a ―logical
                                 relationship‖ between the counterclaim and the
                                 main claim.‖
                     3. Consequences of failure to state a compulsory counterclaim
                             a. Defendant is estopped from making the claim in any
                                 subsequent suits.
                     4. Supplemental jurisdiction and compulsory counterclaims
                             a. Supplemental jurisdiction will almost always be
                                 available over a compulsory counterclaim if the



                                                                                  23
                                                                     BDF


                   original claim falls under subject matter jurisdiction
                   (because if ―logical relationship‖ then so closely
                   related that it falls under §1367)
 ii. Permissive counterclaims —Rule 13 (b)
        1. A permissive counterclaim is any counterclaim that is not
            compulsory
                a. A pleading may state a counterclaim not arising out
                   of the transaction or occurrence that is the subject
                   matter of the party‘s opposing claim. (ANY claim
                   against plaintiff).
        2. Supplemental Jurisdiction and Permissive counterclaims
                a. There is supplemental jurisdiction over all claims
                   that are joined with claims for which there is
                   already subject matter jurisdiction even if there
                   would be no jurisdiction over the joined claims if
                   those claims were standing alone.
                        i. See Jones v. Ford Motor Credit Company in
                            which second circuit rules that supplemental
                            jurisdiction over permissive counterclaim
                            brought in district court is proper even after
                            original claim invoking subject matter
                            jurisdiction is dismissed.
iii. Cross-claims—Rule 13 (g)
        1. General
                a. A cross-claim is a claim against a co-party.
                b. Cross-claim must state a claim “arising out of the
                   transaction or occurrence that is the subject matter
                   either of the original action or of a counterclaim
                   therein or relation to any property that is the subject
                   matter of the original action.
                c. Cross claim is ALWAYS permissive
                        i. BUT, a counterclaim to a cross clam is still
                            subject to rule 13(a)—parties have a duty to
                            bring forth compulsory counterclaims .
        2. Supplemental Jurisdiction and cross claims
                a. Because Rule 13 (g) states that the cross claim must
                   arise out of the transaction or occurrence that is the
                   subject matter of the original claim, it necessarily
                   meets the requirements for supplemental
                   jurisdiction in §1367
                        i. BUT, if original claim does not fall under
                            subject matter jurisdiction, then the cross
                            claim must have an independent basis for
                            subject matter jurisdiction.
                       ii. See Fairview Park v. Al-Monzo
                            Construction Co in which third circuit rules



                                                                       24
                                                                                BDF


                                          that district court has supplemental
                                          jurisdiction over cross claim even when
                                          original claim is dismissed on the merits.
                      3. Once a cross-claim has been made, the cross-claiming party
                          can add unrelated claims under Rule 18(a)
             iv. Joinder of additional parties and cross/counter claims—Rule 13 (h)
                      1. ―Persons other than those made parties to the original
                          action may be made parties to a counterclaim or cross-
                          claim in accordance with the provisions of rules 19 and 20.
III.   Joinder of Parties
       a. GENERAL NOTES
               i. CHECKLIST
                      1. IS THERE PERSONAL JURISDICTION OVER THE
                          PARTY TO BE ADDED?
                              a. PROPER NOTICE?
                      2. IS THERE SUBJECT MATTER JURISDICTION
                          OVER THE CLAIMS THE ADDED PARTIES ARE
                          ASSERTING?
       b. Rule 20 —Permissive Joinder of Parties
               i. Two requirements for permissive joinder
                      1. all joint plaintiffs must assert, and all joined defendants
                          must have asserted against them, claims ―arising out of the
                          same transaction, occurrence, or series of transactions or
                          occurrences.‖
                      2. there must be a question of law or fact common to all of the
                          joined parties.
                              a. example: see Kedra v. City of Philadelphia in
                                  which third circuit rules that joinder of parties
                                  permissible in a case involving systematic
                                  harassment by the Philadelphia police department
                                  against related defendants.
              ii. Supplemental Jurisdiction and Rule 20
                      1. There is no supplemental jurisdiction over claims by
                          plaintiffs against parties joined under Rule 20 .
                      2. Supplemental jurisdiction may be exercised over
                          plaintiffs joined in a diversity action under Rule 20
                          who do not meet the amount-in-controversy
                          requirement.
                              a. See Exxon Mobil Corp. v. Allapattah Services, Inc.
                                  where Supreme Court ruled that parents of plaintiff
                                  injured after cutting herself could be joined as
                                  parties under Rule 20 when the underlying claim
                                  meets the amount-in-controversy requirement even
                                  if claims of parties joined under Rule 20 do not.
             iii. Rule 20 (b)




                                                                                  25
                                                                           BDF


             1. allows the court to order a separate trial to prevent any
                 party from being ―embarrassed, delayed or put to expense
                 by the inclusion of a party against whom the party asserts
                 no claim and who asserts no claim against the party.‖
c. Rule 19 —Compulsory Joinder of Parties
       i. How to analyze a Rule 19 issue
             1. Is the party to be added under rule 19 ―necessary
                     a. NO: Motion should be denied and case proceeds
                     b. YES: Joinder should be ordered, ―if feasible.‖
             2. Is there personal AND subject matter jurisdiction over the
                 party to be added under rule 19 (if break diversity, then no
                 subject matter jurisdiction)?
                     a. YES: Joinder should be ordered. Case proceeds
                     b. NO: Go to Rule 19 (b)
             3. Is the party indispensable under Rule 19 (b)?
                     a. Yes: Rule 19 motion to dismiss should be granted.
                     b. NO: Joinder denied. Case proceeds.
             4. For example see Helzberg’s Diamond Shops v. Valley West
                 Des Moines Shopping Center where defendant sought to
                 motion to dismiss for failure to join indispensable party
                 under Rule 19 when plaintiff failed to join non-diverse
                 defendant in a contract dispute.
      ii. Rule 19 (a)—Is the party ―necessary?‖
             1. A party should be joined ―if feasible‖ if
                     a. In the party‘s absence complete relief cannot be
                         accorded among those already parties OR
                     b. The party claims an interest relating to the subject
                         matter of the action and is so situated that
                         disposition of the action in the party‘s absence may
                              i. Impair or impede the person‘s ability to
                                  protect that interest OR
                             ii. Leave any of the persons already parties
                                  subject to a substantial risk of incurring
                                  double, multiple or otherwise inconsistent
                                  obligations by reason of the claimed interest.
             2. if the joined party objects to venue AND joinder of the
                 party would render the venue improper, that party shall be
                 dismissed.
             3. Joint tortfeasors are NOT necessary parties under Rule 19
                 (a)
                     a. See Temple v. Synthes Corp where defendant
                         corporation filed motion to dismiss under Rule 19
                         for failure to join negligent doctor. The court
                         dismissed the motion on the ground that ―it has long
                         been the rule that it is not necessary for all joint




                                                                             26
                                                                         BDF


                         tortfeasors to be named as defendants in a single
                         lawsuit.‖
             4. Possible reasons for inability to join a party
                      a. There are so many absent parties that joinder of all
                         of them is impracticable.
                      b. The absent party is not subject to personal
                         jurisdiction.
                      c. The absent defendant is immune from suit (i.e.,
                         Indian tribe)
                      d. The joinder of the absent party would add a
                         defendant of the same citizenship and thereby
                         defeat diversity jurisdiction
     iii. Rule 19 (b)—Is the party ―indispensable?‖
             1. If a necessary party cannot be joined, the court should
                 determine whether the action should be dismissed.
             2. Factors to consider
                      a. To what extent a judgment rendered in the person‘s
                         absence might be prejudicial to the person or those
                         already parties.
                      b. The extent to which, by protective provisisions in
                         the judgment, by the shaping of relief, or other
                         measures, the prejudice can be lessened or avoided.
                      c. Whether a judgment rendered in the person‘s
                         absence will be adequate
                      d. Whether the plaintiff will have an adequate remedy
                         if the action is dismissed for nonjoinder.
     iv. Supplemental Jurisdiction under Rule 19
             1. Supplemental jurisdiction is NOT available in diversity
                 cases when a party is sought to be joined under Rule 19
                 .
                      a. Supplemental jurisdiction is available in federal
                         question cases.
d. Rule 14 —Impleader
       i. Rule 14 (a)
             1. invoked by a defending party.
             2. CIRCUMSTANCES WHERE RULE PARTY MAY BE
                 JOINED UNDER RULE 14
                      a. Third-party plaintiff may implead another party
                         who is or may be liable to the third-party plaintiff
                         for all or part of the plaintiff’s claim against the
                         third-party plaintiff.
             3. A motion for rule 14 impleader may be made at ANY time
                 after commencement of the action.
                      a. No leave from the court is required if the motion is
                         made within TEN DAYS after serving the original
                         answer.



                                                                           27
                                                                     BDF


               b. If the motion is made more than TEN DAYS after
                   serving the answer, the third-party plaintiff must
                   obtain leave on motion upon notice to ALL parties
                   in the action.
       4. Process
               a. Third-party defendant v. Third-party plaintiff.
                        i. The third-party defendant shall
                               1. Make any motions under Rule 12
                               2. Make any compulsory counterclaims
                               3. Consider cross-claims under Rule
                                   13
               b. Third party defendant v. plaintiff
                        i. Third party defendant may assert against the
                           plaintiff any ANY defenses which the third-
                           party plaintiff has to the plaintiff‘s claim.
                       ii. The third-party defendant may assert ANY
                           claim against the plaintiff arising out of the
                           same transaction or occurrence that is the
                           subject matter of the plaintiff‘s claim against
                           the third-party plaintiff.
               c. Plaintiff v. Third-party defendant
                        i. May assert ANY claim against the third-
                           party defendant arising out of the same
                           transaction or occurrence that is the subject
                           matter of the plaintiff‘s claim against the
                           third party plaintiff.
                               1. If this happens, then
                                       a. Third party defendant can
                                           make defenses under Rule 12
                                       b. Must make compulsory
                                           counterclaims under Rule 13
                                           (a)
                                       c. CAN make permissive
                                           counterclaims under Rule 13
                                           (b)
                                       d. May make cross claims under
                                           Rule 13 (g)
       5. A party may move to strike the third-party claim, or for its
           severance or separate trial.
       6. A third-party defendant may implead any person not a
           party to the action who is or may be liable to the third-party
           defendant for all or part of the claim made in the action
           against the third-party defendant.
ii. Rule 14 (b)
       1. IF a counterclaim is asserted the plaintiff




                                                                       28
                                                                         BDF


                     a. The plaintiff may implead another party under Rule
                         14 , pursuant to same process as Rule 14 (a).
     iii. Supplemental Jurisdiction and Rule 14
             1. THERE IS NO SUPPLEMENTAL JURISDICTION FOR
                 CLAIMS AGAINST THIRD-PARTY DEFENDANTS BY
                 THE ORIGINAL PLAINTIFF IN A DIVERSITY SUIT (But
                 there is supplemental jurisdiction if the underlying suit is
                 one brought on federal question jurisdiction).
                     a. The claim must have an independent basis of
                         subject matter jurisdiction.
                     b. See Owen Equipment & Erection Co. v. Kroger
                         where plaintiff‘s amended complaint against non-
                         diverse party impleaded under Rule 14 was
                         dismissed for lack of subject matter jurisdiction.
             2. THERE IS SUPPLEMENTAL JURISDICTION FOR
                 CLAIMS BY THE THIRD-PARTY PLAINTIFF
                 AGAINST THE THIRD-PARY DEFENDANT
     iv. Rule 14 (a) and Rule 18 (a)
             1. Once a party has been properly joined under Rule 14 (a),
                 the third-party plaintiff may add unrelated claims under
                 Rule 18 (a).
e. Rule 24 —Intervention
       i. Rule 24 (a)—Intervention of right
             1. Upon timely application ANYONE shall be permitted to
                 intervene in an action:
                     a. When a statute of the United States confers an
                         unconditional right to intervene. OR
                     b. When the applicant claims an interest relating to the
                         property or transaction which is the subject of the
                         action and the applicant is so situated that the
                         disposition of the action may, as a practical matter,
                         impair or impede the applicant‘s ability to protect
                         that interest
                              i. UNLESS the applicant‘s interest is
                                 adequately represented by existing parties.
      ii. Rule 24 (b)—Permissive Intervention
             1. Upon timely application ANYONE may be permitted to
                 intervene in an action
                     a. When a statute of the United States confers a
                         conditional right to intervene OR
                     b. When an applications claim or defense and the main
                         action have a question of law or fact in common.
             2. In exercising its discretion, the court shall consider whether
                 the intervention will unduly delay or prejudice the
                 adjudication of the rights of the original parties.
     iii. Rule 24 (c)—Procedure



                                                                           29
                                                                               BDF


                   1. Person desiring to intervene must serve a motion to
                      intervene on the parties under Rule 5
                          a. Motion must include the claim or defense for which
                              intervention is sought.
      f. Rule 23 —Class Action lawsuits
             i. General—See other outline
            ii. Supplemental Jurisdiction and Class actions
                   1. A court may exercise supplemental jurisdiction over the
                      claims of parties joined under Rule 23 in a diversity action
                      even when not all of the plaintiffs meet the amount-in-
                      controversy requirement.
                          a. See Exxon Mobil Corp. v. Allapattah Services, Inc.
                              where Supreme Court held that supplemental
                              jurisdiction could be exercised over parties joined
                              under rule 23 even when the claims asserted by
                              those parties do not meet the amount-in-controversy
                              requirement.
                                   i. NOTE: the underlying claim (brought by the
                                      representative members of the class) must
                                      exceed the amount-in-controversy
                                      requirement.

DISCOVERY

I.    General
      a. Definition
              i. Discovery is the legal process for compelling the disclosure of
                 information relevant to disputed factual issues in litigation
      b. Purpose
              i. To enable more accurate outcomes in cases that are litigated on the
                 merits or settled on the basis of expected trial outcomes.
             ii. To promote settlement
            iii. To make available prior to trial information revealing whether the
                 case may be disposed of by summary judgment.
            iv. Illegitimate/questionable purposes
                     1. inflict costs and harass opponent
                     2. facilitate the ―reconstruction‖ of a litigant‘s evidence in
                         anticipation of an opponent‘s proof at trial.
      c. Informal discovery
              i. Includes
                     1. interviews conducted by lawyer
                     2. private investigators
II.   Rule 26—General Provisions Regarding Discovery
      a. 26(a)(1)(A)-(D)—Mandatory disclosures
              i. Each party must disclose




                                                                                  30
                                                                         BDF


              1. names, addresses, and telephone numbers of individuals
                  likely to have discoverable information that the disclosing
                  party may use to support its claims or defenses UNLESS
                  solely by impeachment, identifying the subjects of the
                  information
              2. copies, or descriptions by categories and location, of
                  documents, data compilations and other tangible things
                  ―that the discovering party may use to support its claims or
                  defenses.‖
              3. A computation of any category of damages claimed
              4. any insurance agreement out of which a judgment may be
                  paid.
      ii. Rule 26(a)(1)(E): exemptions from mandatory disclosure.
b. Rule 26 (b)—Scope of discovery
       i. ―Parties may obtain discovery regarding ANY matter NOT
          PRIVELEGED, that is relevant to the claim or defense of any
          party.‖
              1. ―For good cause, the court may order discovery of any
                  matter relevant to the subject matter involved in the
                  action.‖
                      a. NOTE: this is a request to expand the scope of
                          discovery.
      ii. The court may alter the limits on the number of depositions and
          interrogatories and the number of requests under Rule 36.
     iii. The court may limit the extent of use of discovery methods if it
          determines that
              1. the discovery sought is unreasonably cumulative or
                  duplicative or is more easily obtainable from another
                  source.
              2. the party seeking discovery has had ample opportunity by
                  discovery in the action to obtain the information sought
              3. the burden of the discovery outweighs its likely benefit.
                      a. Factors to take into account
                                i. The needs of the case
                               ii. The amount in controversy
                             iii. The parties‘ resources
                              iv. The importance of the issues at stake
                               v. The importance of the proposed discovery in
                                   resolving the issues.
c. Rule 26 (c)—Protective orders
       i. A party may make a motion to obtain an order ―to protect a party
          or person from annoyance, embarrassment, oppression or undue
          burden or expense.‖
              1. REQUIREMENTS
                      a. A certification that the moving party has, in good
                          faith, conferred or attempted to confer with other



                                                                           31
                                                                                 BDF


                                  affected parties in an effort to resolve the dispute
                                  without court action.
                             b. The court will not issue the order unless ―good
                                  cause‖ is shown.
                     2. Can be issued either by the court in which the action is
                         pending OR by the court that sits in the district where the
                         deposition is being taken.
             ii. Sanctions
                     1. If a motion for sanctions is denied, the court may enter a
                         protective order authorized under this rule. See Rule
                         37(a)(4)(B)
       d. Rule 26 (g)—Certification
              i. Every disclosure made under 26(a)(1) must be signed by at least
                 one attorney of record.
                     1. the signature is a certification that the information and
                         belief is, to the best of the signer‘s knowledge, complete
                         and correct at the time.
             ii. Every discovery request, response or objection must be signed.
                     1. the signature is a certification that the request, response or
                         objection is
                             a. consistent with the discovery rules
                             b. not for an improper purpose
                             c. not unreasonable, unduly burdensome or expensive
                                  given the needs of the case.
            iii. Sanctions
                     1. If a certification is made that violates this rule, the court
                         shall impose upon the person who made the certification,
                         an appropriate sanction which may include the amount of
                         reasonable expenses incurred because of the violation.
       e. Rule 26(f)—Conference of parties
              i. The parties are required to meet as soon as practicable to confer for
                 purpose of
                     1. consider the nature and basis of their claims and defenses
                     2. to consider possibilities of a settlement
                     3. to make or arrange for mandatory disclosures under
                         26(a)(1)
                     4. to develop a proposed discovery plan.
             ii. Timing of conference
                     1. ―as soon as practicable‖
                     2. BUT, at least 21 days before scheduling order due under
                         Rule 16(b).
III.   Depositions
       a. General
              i. A deposition is a formal questioning of a witness under oath
             ii. Advantages of deposition




                                                                                   32
                                                                                 BDF


                     1. the deponent answers directly, rather than through his
                         lawyer
                     2. the deponent does not know in advance what the precise
                         questions will be
                     3. the questioner can ask follow-up questions suggested by the
                         answers given.
                     4. evaluation of witnesses and opposing counsel
            iii. Disadvantages
                     1. extremely costly
                     2. risk of discovering and recording information unfavorable
                         to one‘s client
                     3. risk of revealing possible lines of analysis or attack
      b. Rule 30—Depositions upon Oral Examination
              i. Limit on number of depositions/duration
                     1. Limit of 10 depositions per side
                     2. Depositions have time limit of one day of seven hours
                     3. Leave of court may be obtained to extend these limits or
                         the limits may be increased by agreement of the parties.
             ii. A party may depose any person, whether or not a party, who
                 possesses relevant information under Rule 26.
            iii. All of the parties to the suit must be given reasonable notice of the
                 time and place of the deposition.
            iv. Conduct of the deposition
                     1. an attorney may object to the questions that are asked.
                             a. But the range of permissible objections is less
                                 because the fact that the evidence is ultimately
                                 inadmissible is not a ground for objection.
                     2. A lawyer may instruct the witness not to answer when
                             a. To preserve a privilege
                             b. To enforce a protective order limiting discovery
                             c. To end a deposition because of abusive behavior by
                                 the deposing party.
                     3. Any attorney whose witness is being deposed may cross-
                         examine the deponent.
                     4. If a party improperly impedes, delays, or frustrates fair
                         examination in a deposition, the court may impose
                         sanctions.
                             a. Sanctions include (Rule 30(d)(3))
                                      i. Reasonable costs and attorney‘s fees
                                         incurred by any parties as a result of the
                                         behavior.
             v. Sanctions
                     1. If one party fails to attend the deposition the court ca order
                         the party giving notice to pay to the other reasonable
                         expenses including attorney‘s fees. Rule 30(g)(1) & (2)
IV.   Rule 33—Interrogatories



                                                                                   33
                                                                                   BDF


       a. General
                i. An interrogatory is a written question sent to a party that must be
                   answered under oath and in writing. They can ONLY be sent to the
                   parties.
       b. The interrogatory must be signed by the party to which they are directed.
       c. Limitations
                i. There is a limit of 25 interrogatories, but leave of the court may be
                   requested to extend this limit or the parties may agree to extend.
       d. Objections
                i. Must be stated with specificity by the lawyer for the party.
               ii. Any grounds for objection not so stated are waived.
              iii. If an interrogatory is not objectionable, it must be answered Rule
                   33(b)(1)(4)
V.     Rule 34—Production of Documents and Things and Entry Upon Land for
       Inspection and Other purposes
       a. Rule 34(a)
                i. A party may request another party to produce documents or
                   tangible things for inspection, copying or testing
                        1. OR to permit entry onto land or other physical property
               ii. No leave of court is required for these requests
              iii. There is no presumptive upper limit on the number of documents
                   or physical things that may be requested.
VI.    Rule 35—Physical and Mental Examinations
       a. Available only when the mental or physical condition of a party is in
           controversy
                i. The court will issue an order to the examination only if ―good
                   cause‖ is shown.
       b. The examination must be conducted by a suitably licensed or certified
           examiner.
VII.   Rule 36—Requests for admission
       a. General
                i. A party may request that the opponent admit, for the purposes of
                   the case, that certain facts are true or that certain documents are
                   genuine.
               ii. Requests are usually made near the end of the discovery phase.
       b. Rule 36(a)
                i. A request for admission of truth may be served on another party on
                   any matter discoverable within the scope of the discovery rules.
               ii. If a party does not answer or object to a request within 30 days, the
                   matter is deemed to have been admitted.
              iii. If the parties rejects or declines to admit, that party must state
                   reasons for objecting or declining.
       c. Rule 36(b)
                i. Effect of admission




                                                                                     34
                                                                                  BDF


                       1. any matter admitted to is conclusively established unless
                           the court permits withdrawal or amendment of the
                           admission.
VIII.   Discovery Malfeasance
        a. Duty to preserve information
               i. 18 U.S.C. §1519 provides that there is an affirmative duty to
                  preserve information once a party is aware of the prospect of
                  litigation and the relevance of the information to the litigation.
        b. Conventional view of legal obligation to provide discovery
               i. When there is no legal obligation to disclose information harmful
                  to its case, a lawyer has no right to disclose the information.
                       1. This is enshrined in legal ethics rules.
              ii. BUT, the lawyer for a party who has been asked for information in
                  the scope of discovery may not withhold or assist in withholding,
                  information without a non-frivolous legal argument for doing so
                  and may not make knowingly false factual or legal claims during
                  discovery.
        c. See Washington State Physicians Insurance Exchange & Association v.
           Fissons Corporation where counsel for defendant‘s refusal to tender
           important documents was sanctioned under Rule 26g.
IX.     Discovery Sanctions
        a. Rule 11 DOES NOT APPLY TO DISCOVERY
        b. Rule 26(g)
               i. Making a certification in violation of the rule can subject the
                  offending party to liability for expenses incurred because of the
                  violation.
        c. Rule 30 (g)
               i. If one party fails to attend the deposition the court ca order the
                  party giving notice to pay to the other reasonable expenses
                  including attorney‘s fees.
        d. Rule 37
               i. Rule 37 (a)—Motion to compel
                       1. The motion must be made to the court where the action is
                           pending.
                       2. If a party fails to make a 26(a) disclosure, any other party
                           may move to compel and for sanctions.
                               a. The motion must be certified
                               b. The moving party must have conferred with the
                                    opposing party in good faith to resolve the problem
                                    without judicial interference.
                       3. If any of the following occurs, the discovering party may
                           make a motion to compel (again must make good faith
                           effort to confer, must certify requestion).
                               a. A deponent fails to answer a question
                               b. A party fails to answer an interrogatory




                                                                                     35
                                                                     BDF


               c. Fails to respond to a request for inspection under
                   Rule 34.
               d. AN EVASIVE ANSWER is treated as a failure to
                   disclose, answer or respond.
       4. Sanctions
               a. If the motion is granted
                        i. The court will require the party moved
                           against to pay the reasonable expenses
                           incurred in making the motion.
               b. If the motion is denied
                        i. The court may issue a protective order under
                           Rule 26(c)
                       ii. The court will require the moving party to
                           pay the party who opposed the motion the
                           reasonable expenses incurred.
ii. Rule 37(b)
       1. A deponents failure to respond after being directed to do so
           by the court in the district where the deposition is taken
           will be in contempt of that court.
       2. Sanctions by the court where the action is pending
               a. If a party refuses to answer questions in an
                   interrogatory or a deposition, or to schedule a
                   discovery conference under Rule 26(f) the court
                   may:
                        i. Order that the matters regarding which the
                           order was made or any other designated
                           facts shall be taken to be established for the
                           purposes of the action
                       ii. Refuse to allow the disobedient party to
                           support or oppose designated claims or
                           defenses or prohibit that party from
                           introducing designated matters in evidence
                      iii. Order that pleading or parts of pleadings be
                           stricken
                      iv. Stay further proceedings until the order is
                           obeyed
                       v. Dismiss the action or proceeding
                                1. this remedy is normally restricted to
                                   cases in which the conduct of the
                                   party resisting discovery was
                                   intentional, in bad faith, and resulted
                                   in prejudice to the opposing party.
                      vi. Enter judgment by default against the
                           disobedient party.




                                                                       36
                                                                                 BDF


                                    vii. Order the party failing to obey to pay the
                                         reasonable expenses caused by the failure
                                         unless the failure is substantially justified
           iii. Rule 37(c)—failure to disclose
                    1. A party that fails to disclose information without,
                        substantial justification, required by 26(a) or to amend a
                        response under 26(e) is not permitted to use evidence,
                        witnesses or information not disclosed.
                            a. The court may also impose other sanctions
                                 including the payment of reasonable expenses.
                    2. If the party fails to admit the genuineness of any document
                        or the truth of any matter under Rule 36 (admissions) and
                        the party that had requested the admission later proves that
                        the document is genuine and the truth of the matter may
                        apply to the court for an order requiring the other party to
                        pay the reasonable expenses incurred
           iv. Rule 37(d)—Failure to attend deposition, serve answers to
                interrogatories or respond to request for inspection.
                    1. The court may do take any of the actions described above
                        (IXdii2a) if
                            a. A party fails to appear before the officer who is to
                                 take a deposition.
                            b. Fails to serve answers or objections to
                                 interrogatories
                            c. Fails to serve a written response to a rquest tofor
                                 inspection.
                            d. The moving party must make a good faith effort to
                                 confer with the opposing party to resolve the issue.
X.   Attorney-Client Privilege
     a. General
             i. Purpose
                    1. The privilege is an investment by the legal system in
                        encouraging legal advice.
                    2. Premises
                            a. A lawyer will give better advice if she fully
                                 understands the facts relevant to a clients problem.
                            b. A client‘s awareness of the privilege will encourage
                                 candor.
                            c. The client will actually follow the advice provided.
                    3. The social value of the privilege depends on the extent to
                        which its existence encourages information flow to the
                        lawyer.
            ii. Costs of the privilege
                    1. in cases where the privilege does not improve
                        communication with the lawyer, the privilege does not




                                                                                   37
                                                                           BDF


                   improve the lawyer‘s advice and prevents the court from
                   receiving crucial information.
b. Codified in Federal Rule of Evidence 501
               1. The privilege of a witness is governed by the common law
                       a. if a state law claim, then the privilege must be
                           determined in accordance with state law.
c. Scope of the privilege
        i. ―Where legal advice of any kind is sought from a professional
           legal advisor in his capacity as such, the communications relating
           to the purpose, made in confidence by the client, are at his instance
           permanently protected from disclosure by himself or by the legal
           advisor, except the protection be waived.‖
       ii. The privilege applies ONLY
               1. if the asserted holder of the privilege is or sought to
                   become a client.
               2. if the person to whom the communication was made is
                       a. a member of the bar or court or his subordinate and
                       b. is acting as a lawyer in connection with the
                           communication.
               3. if the communication relates to a fact of which the attorney
                   was informed
                       a. by his client
                       b. without the presence of strangers
                       c. for the purpose of
                                i. securing an opinion on law
                               ii. or legal services
                              iii. or assistance in a legal proceeding
                              iv. NOT for the purpose of committing a crime
                                   or tort
               4. the privilege has
                       a. been claimed
                       b. has not been waived by the client
      iii. The privilege is available to an organization (i.e., law firm or
           corporation)
               1. See Upjohn Co. v. United States where Supreme Court held
                   that communications between the general counsel of a
                   corporation and lower to mid-level employees was
                   protected under the privilege. The court specifically denied
                   the ―control-group‖ test.
      iv. The privilege protects communications and not the underlying facts
           themselves.
       v. The privilege is absolute—even if the other party cannot get the
           information from any other source, the privileged communications
           cannot be compelled.
d. Claiming the privilege
        i. Rule 26(b)(5)



                                                                             38
                                                                                   BDF


                    1. The claim must be made expressly
                    2. The claim must be made in such a way that will enable the
                        other parties to assess the applicability of the privilege.
      e. Waiving the privilege
             i. The privilege can be waived by the client in two ways
                    1. voluntarily disclosing the communication
                    2. failing to claim the privilege
                            a. This ―implied waiver‖ is a continuous risk.
      f. EXCEPTIONS to attorney-client privilege
             i. Crime/Fraud
                    1. communications are not protected if the services of the
                        lawyer were sought to enable or aid in the perpetration of a
                        crime.
            ii. Lawyer/Client disputes
                    1. The privilege does not apply to communications ―relevant
                        to an issue of breach of duty by a lawyer to his client or by
                        a client to his lawyer.‖
                            a. Arises most often in legal malpractice cases.
XI.   Work-Product Privilege
      a. General
             i. Definition
                    1. the work product of an attorney is material prepared in
                        anticipation of litigation, including but not limited to
                        statements taken from witnesses, notes taken at meetings
                        with witnesses or other people knowledgeable about the
                        matter in dispute, and memoranda summarizing legal
                        research.
            ii. Federal Rule of Evidence 612
                    1. If a witness uses a writing to refresh memory for the
                        purpose of testifying, the adverse party is entitled to have
                        the writing produced.
                            a. If the party claims that the writing contains matters
                                not related to the subject matter of the testimony,
                                the court may look at and excise the irrelevant
                                portions.
           iii. See Hickman v. Taylor where Supreme Court held that the work
                product of an attorney can be compelled for disclosure but only for
                a very good reason.
      b. Rule 26(b)(3)
             i. A party may not obtain discovery material ―prepared in
                anticipation of litigation or for trial by or for another party or by or
                for that other party‘s representative‖ unless
                    1. ―prepared in anticipation of litigation‖
                            a. there is no protection for material prepared in the
                                ordinary course of business.




                                                                                     39
                                                                                  BDF


                                        i. especially applicable to insurance companies
                                            who investigate every claim.
                               b. It is not enough to show that the documents were
                                   prepared in response to a certain claim—the
                                   immunity only applies to documents that were
                                   prepared because of the prospect of the specific
                                   litigation.
               ii. the party seeking discovery has substantial need for the materials
              iii. the party is unable to obtain the substantial equivalent of the
                   materials, without undue hardship, by other means.
        c. Scope
                i. Broader than attorney-client privilege
                       1. The work product doctrine protects material prepared in
                           anticipation of litigation.
               ii. Less protective than attorney-client privilege
                       1. the protection can be overcome if the information cannot be
                           obtained from other sources or can only be obtained with
                           great difficulty.
                       2. Court have compelled disclosure only when the lawyer‘s
                           own views or conduct are in question.
        d. Claiming the privilege Rule 26(b)(5)
                i. The privilege must be claimed expressly
               ii. The privilege must be claimed in enough detail to permit an
                   assessment of the claim.


PRE-TRIAL MOTIONS

  I.    Rule 12 Motions
        a. Rule 12(b)(6) & Rule 12(c)
               i. For the purposes of adjudication, these motions are identical. Both
                  challenge the legal sufficiency of the allegations
  II.   Voluntary Dismissal
        a. Rule 41
               i. Voluntary dismissal
                      1. by plaintiff
                             a. A plaintiff may voluntary dismiss her complaint as
                                 of right simply by filing a notice of dismissal
                                      i. This must be done before the defendant has
                                         served as answer or before the defendant has
                                         filed a motion for summary judgment.
                             b. The dismissal is without prejudice
                                      i. BUT, a second voluntary dismissal is with
                                         prejudice.
                                             1. Rule 41(d)




                                                                                    40
                                                                                     BDF


                                                        a. The court may also order the
                                                            plaintiff to pay the defendant
                                                            for the costs of the previously
                                                            dismissed action and stay the
                                                            proceeding until the plaintiff
                                                            has complied.
                               c. Dismissal by stipulation
                                        i. The plaintiff may also dismiss without
                                           prejudice by stipulation of all adverse
                                           parties.
                                       ii. This can be done any number of times
                                           without prejudice.
                       2. By order of the court
                               a. The court may voluntarily dismiss the action by
                                  order and ―upon such terms and conditions as the
                                  court deems proper.‖
                                        i. These conditions are usually designed to
                                           mitigate unfairness to the defendant and may
                                           include a requirement that the plaintiff may
                                           all or part of the defendant‘s legal fees.
                               b. If the defendant has filed a counterclaim, the court
                                  may not dismiss the complaint UNLESS
                                        i. There is an independent basis for
                                           jurisdiction that will allow the counterclaim
                                           to remain after dismissal of plaintiff‘s claim
                                       ii. OR the defendant is willing to consent to
                                           dismissal of the counterclaim.
               ii. Rule 41(b) Involuntary dismissal
                       1. A defendant may move for dismissal when
                               a. The plaintiff fails to prosecute their claim
                               b. The plaintiff fails to comply with the FRCP
                       2. A dismissal under this subdivision is an adjudication on the
                           merits with res judicata effects.
              iii. Rule 41 applies to counterclaims, cross-claims and third-party
                   claims.
              iv.
III.   Settlement
       a. Settlement contracts usually involve two types of bargains
                i. In a settlement of the typical claim for monetary damages, the
                   plaintiff exchanges all of her rights in a claim for monetary
                   payment from the defendant.
               ii. In a settlement for injunctive relief, the claimant surrenders her
                   claim in return for a set of promises about future conduct from the
                   defendant.
       b. Once a complain as been filed, settlement can occur at ANY time.




                                                                                        41
                                                                                   BDF


      c. Most dismissals pursuant to a settlement agreement do not require
         approval of the court.
              i. Exceptions
                      1. class actions
                      2. suits brought on behalf of incompetents.
      d. Factors that will effect the bargaining process (increase or decrease the
         size of the ―settlement gap‖
              i. Expectations about the outcome
             ii. Stakes
            iii. Costs
            iv. The parties distinctive preferences and values
             v. The role of the lawyer
      e. Rule 16—Pretrial conferences
              i. General
                      1. courts have the power to complete the attendance of the
                           parties at a pre-trial conference for the purposes of
                           encouraging settlement.
             ii. The court may direct the parties to appear before it for a
                 conference for the purposes of
                      1. expediting the disposition of the action
                      2. establishing early and continuing control so that case will
                           be protracted because of lack of management
                      3. discouraging wasteful pre-trial activities.
                      4. improving the quality of the trial through more thorough
                           preparation
                      5. facilitating the settlement of the case
            iii. Sanctions
                      1. Judge may use the sanctions listed in Rule 37.
      f. Rule 68—Offer-of-Settlement and offer-of-judgment rules
              i. Offer of Judgment
                      1. If a defendant offers to settle at any time more than ten
                           days before the trial begins, and the plaintiff declines the
                           settlement offer, then the plaintiff will be responsible for
                           the legal costs incurred after the making of the offer if the
                           ultimate judgment is less than the offer.
             ii. Only a defendant may make an offer
            iii. If the defendant makes an offer and plaintiff then recovers nothing
                 at trial, the rule does not apply because the plaintiff did not obtain
                 ―judgment.‖
            iv. This shifts only technical costs, not attorney‘s fees unless
                      1. it is a civil rights case
IV.   Summary Judgment
      a. General
              i. Purpose/Goals




                                                                                      42
                                                                    BDF


       1. Summary judgment provides a means, short of trial, for
          deciding claims on their merits where the evidence is so
          one-sided that a trial would be a waste of time and money.
       2. The rules try to strike a balance between avoiding wasteful
          trial and accidentally preventing a party from the valuable
          opportunity to resolve a controversy in the richer
          evidentiary context of trial.
ii. Burdens of production & persuasion and summary judgment
       1. Burden of production
               a. Typically falls on the plaintiff
               b. Requires the plaintiff to produce evidence at trial
                  that meets a minimum standard of sufficiency.
               c. Failure to meet burden
                       i. If the plaintiff does not introduce sufficient
                          evidence on EACH essential element of the
                          case, the judge can issue judgment as a
                          matter of law against the plaintiff
               d. Standard for evaluation
                       i. The court evaluates the evidentiary record
                          and decides whether, in the court‘s
                          judgment, there is enough evidence
                          supporting the plaintiff‘s claim that a jury
                          could reasonably decide the case in the
                          plaintiff‘s favor.
       2. Burden of Persuasion
               a. Refers to the requirement that a plaintiff must
                  convince the jury of his or her claims by a
                  preponderance of the evidence.
       3. STANDARD FOR GRANTING SUMMARY
          JUDGMENT
               a. The question a court will ask is whether there is
                  sufficient evidence favoring the plaintiff that a
                  reasonable jury could find in the plaintiff‘s favor
                  (burden of production) under the standard of the
                  burden of persuasion (i.e., ―preponderance of the
                  evidence,‖ ―beyond a reasonable doubt,‖ etc.)
               b. The ultimate question for the court is: Do the
                  evidentiary materials submitted by the parties show
                  that there is sufficient evidence supporting each
                  element of plaintiff‘s case to permit a reasonable
                  jury to find for the plaintiff?
                       i. Yes—then there is a genuine issue of fact
                          and need for a trial
                      ii. No—no material fact worthy of submission
                          to a jury. Summary judgment granted.




                                                                      43
                                                                         BDF


                     c. The burden of persuasion is to be taken into
                         account.
                              i. See Anderson v. Liberty Lobby, Inc. where
                                 court held that the judge was required to
                                 ―view the evidence presented through the
                                 prism of the substantive evidentiary
                                 burden.‖
                             ii. See also Matsushita Elec. Co. v. Zenith
                                 Radio Corp where court suggested that
                                 when uncontested background facts render a
                                 claim ―implausible‖ the plaintiff must offer
                                 more persuasive evidence to demonstrated
                                 the existence of a ―genuine issue.‖
                                     1. NOTE: this can be read narrowly to
                                         apply only to antitrust cases
                                         involving conflicting economic
                                         theories.
     iii. Summary Judgment/Qualified immunity
             1. See Colston v. Barnhart where court grants summary
                 judgment to police officers with qualified immunity under
                 §1983 after deciding that the evidence showed that the
                 actions of the police officers were ―objectively reasonable.‖
b. Rule 56
       i. Rule 56(a)
             1. The plaintiff may make a motion for summary judgment at
                 any time after the expiration of 20 days from the
                 commencement of the action.
      ii. Rule 56(b)
             1. the defendant may make a motion for summary judgment at
                 any time.
     iii. Rule 56(c) – (f)—Process of summary judgment
             1. Timing
                     a. The motion must be made at least ten days before
                         the hearing.
                     b. BUT if the motion is made too early, the judge will
                         either deny the motion or continue the hearing if the
                         nonmoving party has not had an opportunity to
                         make full discovery.
             2. Standard for determination
                     a. ―The judgment sought shall be rendered forthwith if
                         the pleadings, depositions, answers to
                         interrogatories, and admissions on file, together
                         with the affidavits, if any, show that there is no
                         genuine issue as to any material fact and that the
                         moving party is entitled to judgment as a matter
                         of law.‖



                                                                           44
                                                                               BDF


                   3. Stipulation of facts in event summary judgment is denied
                           a. If judgment is not rendered on the entire case, the
                               court will determine what material facts exist
                               ―without substantial controversy‖. These facts will
                               be deemed to be established and the trial will be
                               conducted accordingly.
                   4. Evidence
                           a. Affidavits
                                     i. Both parties may submit affidavits and other
                                        evidentiary materials in support of, or
                                        opposing, the motion.
                                    ii. Testimony must be factual and particular,
                                        not conclusory
                                   iii. Must be the type of evidence that would be
                                        admissible at trial.
                           b. Local rules will often required that the party
                               opposing the motion file a brief containing a
                               statement of material facts in dispute with citations
                               to the evidentiary record
                           c. Evidence gleaned in discovery can be used
                                     i. One purpose of discovery is to gather
                                        information useful for resolving cases in
                                        summary judgment.
           iv. Requirement of support
                   1. This rule has been interpreted as requiring the moving party
                       to ―support‖ the motion.
                           a. This means that the moving party should
                               demonstrate that there is some reason to believe that
                               plaintiff will fail to meet the burden of production.
                   2. But see Celotex Corp. v. Catrett
                           a. The defendant does not have to affirmatively show
                               that the plaintiff cannot meet his or her burdens at
                               trail. Rather, the defendant can simply point to the
                               lack of evidence produced by the plaintiff to obtain
                               summary judgment.
                                     i. This establishes that a moving party who
                                        does not bear the burden of proof does
                                        not have to “support” their motion
                                        beyond pointing out that the other party
                                        cannot meet their burden.
V.   Default Judgment
     a. Rule 55
             i. ―Entry‖ of default
                   1. If the defendant fails to plead or defend and the plaintiff
                       makes this apparent to the court in an affidavit, the clerk
                       must enter default.



                                                                                 45
                                                                                BDF


                     2. Effects
                             a. Does not terminate the case, but does bar any
                                 further defense on the issue of liability uneless
                                 vacated.
                     3. Rule 55(c)
                             a. The court may set aside an entry of default ―for
                                 good cause shown.‖
              ii. Rule 55(b)- Judgment by Default
                     1. When the plaintiff‘s claim is for a sum certain or for a sum
                         that can be made certain by computation, the clerk shall
                         enter judgment for that amount.
                             a. NOTE: the ―sum certain‖ requirement would bar
                                 judgment by default for claims seeking injunctive
                                 relief.
                     2. Judgment by default has res judicata effects—it is a
                         judgment on the merits
                     3. Judgment can be relieved only according to Rule 60
                     4. Relief granted in default judgment cannot exceed that
                         demanded in the prayer for relief.

TRIAL/POST-TRIAL MOTIONS

  I.   Trial, Generally
       a. Significance
                i. While more cases are disposed of before trial, the cases that do
                   make it to trial are more complex and have more at stake.
       b. Structure
                i. Trial by jury or bench trial
                       1. Jury trial most common form of trial.
                       2. Jury trial formal than a bench trial
               ii. Process
                       1. pleadings
                       2. discovery
                       3. pre-trial motions
                       4. Clerk calendars the case for trial
                       5. jury selection
                       6. the party with the burden of proof makes opening statement
                               a. purpose is to outline the plaintiff‘s evidence to
                                    make it more intelligible to the jury
                       7. Defendant may make opening statement here or after
                           presentation of defendant‘s evidence (usually here)
                       8. plaintiff presents evidence
                               a. Defense cross-examines witness
                                        i. Purpose
                                               1. to draw out knowledge potentially
                                                  favorable to cross-examiner



                                                                                  46
                                                                                    BDF


                                                2. to expose deficiencies in testimony
                                                3. impeachment of the witness
                      9. Defendant may make motion for judgment as a matter of
                          law
                      10. defendant presents case
                      11. plaintiff may make motion for judgment as a matter of law
                      12. plaintiff may then present rebuttal evidence
                      13. defendant may present rebuttal evidence
                      14. both sides may make motion for judgment as a matter of
                          law.
                      15. Closing arguments
                      16. Judge‘s instructions to the jury
                      17. Verdict
II.   Right to Trial by Jury
      a. Seventh Amendment, general
               i. Text of Seventh Amendment:
                      1. ―In suits at common law, where the value in controversy
                          shall exceed twenty dollars, the right of trial by jury shall
                          be preserved, and no fact tried by a jury, shall be otherwise
                          reexamined in any court of the United States, than
                          according to the rules of the common law.‖
                    th
              ii. 14 amendment provides right to trial in all criminal cases, state or
                  federal
             iii. No constitutional guarantee of trial by jury in civil cases in State
                  law.
             iv. Meaning of trial by jury
                      1. interpreted according to the common law rules that existed
                          at the time of its adoption.
                               a. Jury of twelve people
                               b. In the presence and under the superintendence of a
                                   judge, empowered to instruct the jury on the law
                                   and to advice them on the facts and also empowered
                                   to set aside the verdict if the opinion is against the
                                   law or evidence.
      b. Demanding and Waiving Right to Trial by Jury
               i. Rule 38
                      1. Demand
                               a. Any party may demand a trial by jury of any issue
                                   triable of right by a jury by
                                        i. Serving upon the other party a demand for
                                           trial by jury no later than ten days after the
                                           service of the last pleading
                               b. A demand for a jury trial cannot be withdrawn
                                   without the consent of the parties.
                      2. Waiver




                                                                                      47
                                                                                   BDF


                              a. Failure to file a demand constitutes a waiver of the
                                  right to trial by jury.
              ii. Rule 39—Trial by Jury or by the Court
                      1. If a demand is made under Rule 38, the trial shall be by
                         jury unless
                              a. The parties agree to a bench trial
                              b. The court decides that there is no right ot trial by
                                  jury.
                      2. The court can relieve a party from the consequences of its
                         waiver of the right to trial by jury by ordering a jury trial.
                      3. Even if there is no right to a trial by jury, the court, by its
                         own initiative, may try an issue with an advisory jury, or,
                         with the consent of both parties, may order a trial by jury
                         empowered to make a verdict.
       c. Rule 48
               i. Jury consists of at least 6 and no more than 12 members
              ii. Verdict must be unanimous.
III.   Jury Selection
       a. General
               i. Proceeds in two stages
                      1. Jury panel or ―venire‖ is assembled at courthouse.
                      2. the actual jury is chosen from among the panel through the
                         process of voir dire.
              ii. Voir Dire
                      1. consists of questioning potential jurors to uncover possible
                         bias
                      2. if bias discovered, party can use peremptory challenge to
                         remove juror from panel.
             iii. Panel Selection—Rule 47
                      1. Constitutional requirements
                              a. 14th amendment prohibits intentional discrimination
                                  against jurors.
                              b. In criminal cases: panel must be drawn from a fair
                                  cross section of the community.
                      2. Statutory guidance
                              a. Jury Selection and Service Act provides that a jury
                                  panel must be selected at random from a fair cross-
                                  section of the community and requires that no
                                  citizen be excluded from service on the basis of
                                  race, color, religion, sex, national origin or
                                  economic status
                      3. ―Fair cross section‖
                              a. Most panels are not represented because drawn
                                  from voter lists that under-represent minorities
                              b. Constitutional challenges to the use of voter lists
                                  has failed (except in California).



                                                                                     48
                                                                                   BDF


      b. Peremptory Challenges
              i. In civil cases in federal court, each party has three peremptory
                 challenges (Rule 47)
                     1. no reason must be given for peremptory challenge
                     2. BUT see Edmondson v. Leesville Concrete Inc where
                          Supreme Court held that a litigant may not exercise his or
                          her peremptory challenges on the basis of race.
             ii. Each party has an unlimited number of challenges for cause
                     1. standard for disqualification come from federal common
                          law.
                     2. judge has substantial discretion is deciding whether to
                          dismiss a juror.
IV.   Jury Verdicts
      a. Instructions to the jury
              i. Instructions to the jury contain
                     1. the rules of substantive law to be applied
                     2. advice on the task of the jury as the finder of fact,
                          explaining the burden of persuasion and the jury‘s role as
                          the arbiter of credibility and the drawer of reasonable
                          inferences.
             ii. Process of jury instructions
                     1. The judge has an obligation to instruct the jury with the
                          basic rules of substantive law to be applied in the case.
                     2. Adversarial elements of system
                              a. Counsel to both parties will often contest the nature
                                  of the instructions, presenting their own requests for
                                  written instructions
            iii. Timing of instructions
                     1. Rule 51
                              a. Allows the judge to give instructions to the jury
                                  before or after the arguments of counsel.
            iv. Appellate review of jury instructions
                     1. An appellate court may reverse, if an objection has been
                          properly preserved if the following conditions are met:
                              a. The requested instruction was a correct statement of
                                  the law
                              b. The issue on which the instruction was requested
                                  was property before the jury
                              c. The instruction was not covered by another
                                  instruction
                              d. The failure to give the instruction was a prejudicial,
                                  not harmless, error.
      b. Different types of jury verdicts
              i. General verdict




                                                                                     49
                                                                               BDF


                    1. In a general verdict, the jury simply states its conclusion
                        (find for plaintiff or defendant) and the amount to be
                        awarded (if any)
                    2. Problems
                            a. Conceals the reasoning process by which the verdict
                                was reached
            ii. Special verdict
                    1. Rule 49 (a)
                            a. Requires the jury to find specifically on all of the
                                issues essential to the plaintiff‘s case.
           iii. General verdict with interrogatories
                    1. Rule 49(b)
                            a. Requires the jury to render a general verdict, but
                                also to answer written interrogatories upon one or
                                more issues of fact.
                    2. Inconsistency
                            a. In general, courts have an obligation to reconcile
                                apparent inconsistencies.
                            b. If the finding cannot be reconciled with the verdict,
                                the verdict cannot stand.
V.   Inadequate or Excessive verdicts
     a. Excessive or inadequate awards for damages
             i. The trial judge has an obligation to set aside a verdict when its
                amount is not supported by the evidence.
                    1. judges can disagree on the reasonableness of the damages
                        (and often do).
     b. Remittitur
             i. At the hearing on a defendant‘s motion for a new trial, the judge
                indicates what he or she thinks is the upper bound of a reasonable
                verdict.
            ii. The judge then grants a conditional motion for a new trial
                    1. if the plaintiff agrees to accept a judgment for the reduced
                        amount, then no new trial.
                    2. if the plaintiff does not agree, then he or she risks that a
                        new jury will grant less in damages.
     c. Additur
             i. The corollary to remitter
            ii. Trial judge denies plaintiff‘s motion for a new trial on the
                condition that the defendant agree to an increase en the award to an
                amount specified by the judge.
           iii. This procedure has NOT been adopted by the Federal courts.
     d. Punitive damages
             i. Judges retain the power to reduce punitive damage awards.
            ii. The Due Process clause has been interpreted to imply that an
                award of punitive damages may not be ―grossly excessive‖ in
                proportion to the wrong committed.



                                                                                 50
                                                                               BDF


                    1. Three factors test to determine
                            a. The reprehensibility of the defendant‘s conduct
                            b. The ratio between the punitive damage award and
                                the severity of the harm inflicted or threatened.
                            c. The ration between the punitive damage award and
                                the monetary sanctions set by the legislature for
                                similar conduct.
           iii. Both state and federal courts are required to conduct appellate
                review of punitive damage awards
                    1. standard on review is de novo
VI.   Judgment as a matter of law (JMAL)
      a. General
             i. Standard for granting JMAL
                    1. The court should review all of the evidence in the record
                    2. the court should draw all reasonable inferences in favor of
                        the non-moving party.
                    3. The court should NOT make credibility determinations or
                        weigh the evidence.
                    4. The standard is linked to the burden of persuasion.
            ii. See Simblest v. Maynard where district court granted JMAL even
                though the plaintiff had provided conflicting evidence on a key
                point of fact.
           iii. See also Sioux City & Pacific Railroad Co. v. Stout where judge
                submitted case to jury despite the fact that there was no material
                question of fact because the facts were of such a nature that
                reasonable people could draw different inferences.
      b. Rule 50
             i. Judgment as a matter of law—Rule 50(a) (―Directed Verdict‖)
                    1. Motion for JMAL can be made anytime before the case is
                        submitted to the jury.
                            a. The motion must specify the judgment sought and
                                the law and the facts on which the moving party is
                                entitled to the judgment.
                    2. Standard for determination
                            a. JMAL may be granted if
                                     i. A party has been fully heard on an issue
                                    ii. There is no legally sufficient evidentiary
                                        basis for a reasonable jury to find for the
                                        party on that issue
                                   iii. The claim or defense cannot, under the
                                        controlling law, be maintained or defeated
                                        without a favorable finding on the issue.
            ii. Renewed Motion for Judgment After Trial (―Judgment n.o.v.‖)
                    1. Available if the court does not grant earlier motion for
                        JMAL




                                                                                 51
                                                                                    BDF


                        2. The motion must be made no later than ten days after entry
                           of judgment
                        3. If a verdict was returned the judge may
                                a. Allow the judgment to stand
                                b. Order a new trial
                                c. Direct entry of judgment as a matter of law
                        4. If a verdict was not returned
                                a. Order a new trial
                                b. Direct entry of judgment as a matter of law
VII.    Motion for a new trial
        a. Rule 50 (b)
                i. A party may make alternative motions for JMAL and for a new
                   trial
        b. Rule 59
                i. Timing
                        1. A motion for a new trial must be filed no more than 10
                           days after entry of judgment
               ii. A new trial may be granted to all or any of the parties on all or part
                   of the issues on the basis of common law
              iii. NOTE: The grant of a new trial means that there can be no appeal
                   because there is no final judgment.
        c. A motion for a new trial will not be granted unless the jury verdict is
           ―against the great weight of the evidence.‖
                i. See Spurlin v. General Motors Corp where court denied a motion
                   for a new trial in a products liability case with conflicting evidence
                   because the verdict could not be said to be against the great weight
                   of the evidence.
        d. A new trial may be granted because of procedural errors
        e. A new trial may be granted on the ground of ―newly discovered‖
           evidence.
                i. The applicant for a new trial must show that he or she used due
                   diligence before and during the trial to get the evidence.
        f. Motions for new trial based on jury misconduct are rare
                i. Federal Rule of Evidence 606b. (p. 1116)
VIII.   The Judgment
        a. Rule 54—The Judgment
                i. Definition of judgment
                        1. a judgment is a legal document that describes the final
                           decree of the court.
        b. Entry of judgment
                i. Rule 58—Entry of Judgment
                        1. A judgment is only effective upon entry
                        2. The judgment must be in a separate document
                        3. Judgment must shows the basis issues that must be
                           addressed in a claim for relief
                                a. The amount awarded



                                                                                      52
                                                                                  BDF


                             b. The amount of any pre-judgment interest
                             c. The allocation of costs
                     4. The judgment must be sufficiently definite and certain so
                         that a party can comply with its provisions.
              ii. The Civil Docket—Rule 79
                     1. The judgment is entered by the clerk in a book known as
                         the ―civil docket‖
                     2. Entries are brief, stating that judgment is now entered and
                         in simpler cases, will state the relief decreed
             iii. General verdicts
                     1. Clerk is authorized to prepare, sign and enter the judgment
                         into the civil docket without intervention by the parties or
                         the court.
             iv. Special verdicts
                     1. The court is required to approve the form of the judgment,
                         which is then entered by the clerk.
              v. Legal significance of entry of judgment
                     1. Starts the period for post-trial motions
                     2. triggers the time to file an appeal
                     3. a necessary condition for enforcement of the judgment
                             a. actions taken on the basis of a judgment which has
                                 not been entered are legally void.
      c. Enforcement of judgment
               i. Rule 69
                     1. Payments of money
                             a. enforced by a write of execution, issued byte court
                                 and addressed to the sheriff, that will provide for the
                                 seizure of the judgment debtor‘s non-exempt
                                 property for public sale.
                             b. Money judgment must be enforced in accordance
                                 with the practice and procedure of the state in which
                                 the federal court sits
                                      i. Unless there is a preempting federal statute
IX.   Relief from judgment or order
      a. Rule 59(e)—Motion to Alter or Amend judgment
               i. Must be filed no more than 10 days after judgment
      b. Rule 60—Relief from Judgment or Order
               i. General Conditions
                     1. The following conditions must be satisfied to be relieved
                         from judgment
                             a. The moving party must have acted with reasonable
                                 promptness and diligence after having discovered
                                 the grounds on which the motion is based.
                             b. The moving party must have a claim or defense or
                                 substantial merit that can be asserted if the
                                 judgment is set aside



                                                                                     53
                                                                               BDF


                           c. Granting the motion must not unfairly jeopardize
                              interests of reliance that have taken shape on the
                              basis of the judgment
                           d. The grounds advanced must not have been
                              previously adjudicated in the original action or in
                              some previous effort to obtain relief from the
                              judgment and must not be grounds the applicant
                              could have asserted by appeal from the judgment.
     c. Rule 60(a)
             i. Clerical mistakes ma be corrected by the court at any time by its
                own initiative or by motion of any parties.
            ii. During the pendency of an appeal, the mistake may be corrected
                     1. before the appeal is docketed
                     2. or, after the appeal is docketed, only with leave by the
                        appellate court.
     d. Rule 60(b)
             i. A court may relieve a party from final judgment, on motion within
                a reasonable time OR not more than one year after the
                judgment, order or proceeding was entered or taken for the
                following reasons
                     1. mistake, inadvertence, surprise or excusable neglect
                     2. newly discovered evidence which by due diligence could
                        not have been discovered in time to move for a new trial
                        under Rule 59(b)
                     3. Fraud, misrepresentation or other misconduct of the
                        adverse party
            ii. A court may relieve a party from final judgment, on motion within
                a reasonable time, for the following reasons
                     1. the judgment is void
                     2. the judgment has been satisfied, released, or discharged, or
                        a prior judgment upon which it is based has been reversed
                        or otherwise vacated or it no longer equitable that the
                        judgment should have prospective application
                     3. any other reason justifying relief from the operation of the
                        judgment.
     e. Separate suit may be brought to vacate the judgment, but the Supreme
        Court has held that this may only be done to ―prevent a grave miscarriage
        of justice.‖
X.   Appeals
     a. General/Principal Points
             i. The only formal step required to make an appeal is a timely filing
                of notice.
                     1. the appellant must then pay required fees, file the record,
                        and file a brief and appendix.
            ii. Notice of appeal




                                                                                    54
                                                                               BDF


                 1. this is a very simple document, liberally construed by the
                      courts.
        iii. Generally, only an aggrieved (i.e., losing) party may seek appellate
             relief
                 1. some state courts allow appellate review of important
                      questions of law.
        iv. Only parties to the action may appeal
                 1. Someone whose interests are affected who was not a party
                      can seek to intervene under Rule 24.
         v. ―Interlocutory order‖
                 1. An interlocutory order (an order entered during the course
                      of the trial) can be review by an appellate court BUT
                      ONLY in connection with an appeal from a FINAL
                      JUDGMENT.
b.   Timing
          i. Must be filed within 30 days of the entry of judgment
                 1. The United States, as a party, has 60 days.
         ii. The notice must be filed, not simply served
        iii. Federal Appellate Rule 4(a)(5) allows additional time upong a
             showing of excusable neglect or good cause.
c.   Scope/Standards of review
          i. A matter cannot be complained of on appeal unless objection was
             intelligibly made in the trial court at the time the event or ruling
             occurred or promptly thereafter.
         ii. A matter will not be considered on appeal unless it is properly
             cited in the appellant‘s papers on appeal.
        iii. An appellate court will not receive new evidence
                 1. factual findings will only be overturned if they are ―clearly
                      erroneous‖
        iv. Scope of review of review of injunctive relief has traditionally
             been limited to an ―abuse of discretion.‖
         v. An appellate court will not disturb rulings that are within the
             ―sound discretion‖ of the trial court unless there was an abuse of
             that discretion.
d.   ―Harmless Error‖ Rule
          i. Even if there were errors in the preceding trial, the appellate court
             will not reverse if the errors were ―harmless‖ or ―nonprejudicial.‖
e.   ―Final Judgment Rule‖
          i. With a few exceptions, appellate review is limited to final
             judgments.
         ii. Safety valves
                 1. 28 U.S.C. §1292
                          a. these caveats are left to the discretion of the courts.
                          b. The district judge MUST certify the question AND
                               the Court of Appeals must exercise their discretion
                               to hear the appeal



                                                                                 55
                                                                                    BDF


                      2. Other requirements
                             a. The order being reviewed must be conclusive
                             b. The order being reviewed must be an important
                                issue that is not based on the merits
                             c. Must be of such a nature that going forward without
                                an immediate appeal would render it unreviewable
                                on appeal
                                    i. Ex: qualified immunity (which is immunity
                                        from suit, not just from liability).
        f. Extraordinary writs
               i. Writ of Mandamus—used only when the district court has clearly
                  done something wrong.

RES JUDICATA & COLLATERAL ESTOPPEL

  I.    Res Judicata & collateral estoppel, Generally
        a. Res judicata and collateral estoppel are affirmative defenses that must be
           pleaded according to Rule 8(c).
        b. Joinder complications/considerations
                i. Plaintiff, thinking strategically, may want to bind a party to the
                   findings of their case.
                        1. can use Rule 19 to argue that they are a ―necessary‖ and
                            ―indispensable‖ party.
                        2. Otherwise Rule 20
                        3. Rule 24 allows for intervention of party who thinks their
                            interests are at stake in the litigation.
        c. The courts may bring up the defenses of res judicata and collateral
           estoppel sua sponte
  II.   Res Judicata (―claim preclusion‖)
        a. General
                i. Purpose/Goals
                        1. promotes stability and finality in the legal system
                        2. promotes judicial efficiency
                        3. fairness—litigants should not be able to relitigate the same
                            issue over and over again
               ii. Res Judicata bars a party who has previously brought a claim and
                   lost from presenting that claim, and related claims, in future
                   litigation.
              iii. The relevant law of res judicata will be jurisdiction specific.
                   Federal courts will apply the law of the state within which they sit.
        b. Elements of Res Judicata
                i. Valid and Final Judgment
                        1. some jurisdictions will give res judicata effect to a
                            judgment once it has become final in the trial court, even if
                            an appeal is pending.




                                                                                       56
                                                                     BDF


                a. BUT this was not the case in Federated Department
                    Stores, Inc. v. Moitie
 ii. On the merits
        1. a 12(b)(6) dismissal is ―on the merits.‖
        2. summary judgment, judgment as a matter of law, settlement
           with agreement to dismiss with prejudice and dismissal for
           failure to prosecute are all, likely, ―on the merits.‖
                a. Rationale: the plaintiff has had a full opportunity to
                    litigate. If he or she does not take the opportunity,
                    then consequences ensue.
        3. Rule 41 cannot make preclusion law—only describes the
           effects if a plaintiff wants to file the same claim in the same
           court.
        4. Compulsory counterclaims
                a. Rule 13a counterclaims are bound by effects of res
                    judicata.
iii. Same or Related Claim
        1. Restatement (2d) Judgments §24
                a. ―When a valid and final judgment rendered in an
                    action extinguishes the plaintiff‘s claim pursuant to
                    the rules of merger or bar, the claim extinguished
                    includes all rights of the plaintiffs to remedies
                    against the defendant with respect to all or any part
                    of the transaction, or series of connected
                    transactions, out of which the actions arose.‖
                b. ―What factual grouping constitutes a ‗transaction‘
                    and what grouping constitutes a ‗series‘, are to be
                    determined pragmatically, giving weight to such
                    considerations as whether the facts are related in
                    time, space, origin or motivation, whether they form
                    a convenient trial unit, and whether their treatment
                    as a unit conforms tot the parties‘ expectations or
                    business understanding or usage.‖
        2. Some states will define claim more narrowly
iv. Same parties or their privies
        1. Privity is a special relationship between the parties that
           may include
                a. commercial relationship
                b. family relationship
                c. fiduciary relationship
                d. partnership
                e. privity of estate
        2. A party who has agreed to be bound by the result of
           litigation is in privity with a party to that litigation




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                                                                              BDF


               3. If a non-party controls or substantially participates in the
                   control of the litigation behavior of a party, the non-party is
                   in privity with that party.
c. Claim Splitting
        i. Res judicata does not apply if the plaintiff was forced to litigate in
           a forum of limited jurisdiction that would not have allowed him to
           present a claim ―arising out of the same transaction or series of
           transactions or occurrences.‖
               1. BUT, if the plaintiff chooses the limited forum, then the
                   plaintiff chooses at her own peril—if a related claim was
                   not asserted, she may be barred from bringing it under the
                   doctrine of res judicata
               2. See Staats v. County of Sawyer where court held the
                   doctrine of claim preclusion ought not apply to an action
                   brought into federal district court after being litigated
                   according to state administrative guidelines, when the
                   system (state administrative courts) that heard the initial
                   claims was one of limited jurisdiction that could not have
                   heard all of the plaintiff‘s claims.
       ii. Important notes
               1. “claim” does not differentiate between state and federal
                   causes of action
               2. a lawyer concerned about res judicata should choose the
                   more jurisdictionally competent forum
      iii. Restatement (2d) Judgments §26
               1. The general rule of claim preclusion does not apply when
                        a. ―The plaintiff was unable to rely on a certain theory
                           of the case or to seek a certain remedy or form of
                           relief in the first action because of the limitations of
                           subject matter jurisdiction of the courts or
                           restriction on their authority to entertain multiple
                           theories or demands for multiple remedies or forms
                           of relief in a single action, and the plaintiff desires
                           in the second action to rely on that theory or to seek
                           that remedy or form of relief.‖
d. Scope of Res Judicata
        i. Res Judicata will bar a claim in a second suit when it has already
           been decided on the merits, even if the law is subsequently
           changed in such a way that the first suit would have turned out
           differently.
               1. See Federated Department Stores, Inc. v. Moitie where
                   Supreme Court held that there was no exception to the
                   doctrine of res judicata when the plaintiff‘s first claim was
                   dismissed for failure to state a claim and the law is then
                   changed shortly thereafter to allow the claim.




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                                                                                    BDF


              ii. res judicata does not require that a party join all possible parties to
                   a suit. The plaintiff may bring up the same claim against different
                   parties.
       e. res judicata and compulsory counterclaims
               i. Restatement (2d) Judgments §22
                       1. ―Where the defendant may interpose a claim as a
                            counterclaim but he fails to do so, he is not thereby
                            precluded from subsequently maintaining an action on that
                            claim, except as stated in Subsection (2)
                       2. ―A defendant who may interpose a claim as a counterclaim
                            in an action but fails to do so is precluded, after the
                            rendition of judgment in that action, from maintaining an
                            action on the claim if:
                                 a. the counterclaim is required to be interposed by a
                                    compulsory counterclaim statute or rule of court.
III.   Collateral Estoppel
       a. Collateral Estoppel, generally
               i. The constitutional requirement of due process requires that every
                   party be given a full and fair opportunity to be heard. This means
                   that in EVERY non-mutual estoppel situation, the estopped party
                   must have been a party in the first suit and therefore had his
                   chance to litigate the issue.
              ii. Collateral Estoppel v. Res Judicata
                       1. Collateral Estoppel prevents a party from relitigating an
                            issue, not a claim. This makes it both broader and narrower
                            than res judicata.
                                 a. Narrower: Collateral Estoppel only applies to a
                                    single issue in what may be a larger claim.
                                 b. Broader: Collateral Estoppel will prevent a party
                                    from bringing up another issue, even in a separate
                                    claim.
       b. Elements of Collateral Estoppel
               i. Valid and Final Judgment
              ii. Issue was actually litigated
                       1. The issue in the two suits must be the same
                                 a. See Levy v. Kosher Overseers Association of
                                    America, Inc. where court held that a decision by
                                    the Patent and Trademark Office‘s Trademark Trial
                                    and Appeal Board rejecting the defendant‘s
                                    application for a trademark on the grounds that it
                                    was too similar to the trademark used by the
                                    plaintiff did NOT have collateral estoppel effect in a
                                    later action brought on the grounds of trademark
                                    infringement.
                       2. Just because an issue was raised does not mean it was
                            litigated



                                                                                       59
                                                                        BDF


                 a. An admission does not mean that the issue was
                     litigated
                 b. An issue is not actually litigated if the parties settle.
                 c. The modern rule is that the issue is actually litigated
                     if the parties are antagonistic to each other on the
                     issue.
                 d. The dominant view is that a default judgment does
                     NOT have preclusive effect.
iii. Issue was actually determined AND the determination was
     necessary to the judgment
         1. The issue determination must be necessary to the courts
            judgment
                 a. If a court finds for a litigant on two independent,
                     sufficient grounds and it cannot be determined
                     which issue was dispositive, then collateral estoppel
                     will NOT apply
         2. Parties must be given a ―full and fair‖ opportunity to
            litigate.
                 a. The proceeding must be sufficiently formal, with
                     sufficient procedural safeguards, to issue a
                     judgment with preclusive effects.
                          i. The general rule is that findings in state
                              administrative proceedings will have
                              preclusive effect in a later federal court suit
                              between the same parties.
                 b. In some cases, the inability to appeal with prevent a
                     judgment from having collateral estoppel effect.
         3. Effect of the burden of proof
                 a. The Restatement holds that collateral estoppel
                     should NOT apply where the party against whom
                     preclusion is sought faced a heavier burden of
                     persuasion in the first action compared with the
                     second (i.e., if ―beyond a reasonable doubt‖ in the
                     first, then this would not be preclusive on a
                     ―preponderance of the evidence‖ burden.)
iv. Same parties or their privies
         1. some jurisdictions allow for non-mutual collateral estoppel
         2. Privity is a special relationship between the parties that
            may include
                 a. commercial relationship
                 b. family relationship
                 c. fiduciary relationship
                 d. partnership
                 e. privity of estate
         3. A party who has agreed to be bound by the result of
            litigation is in privity with a party to that litigation



                                                                          60
                                                                           BDF


             4. If a non-party controls or substantially participates in the
                 control of the litigation behavior of a party, the non-party is
                 in privity with that party.
             5. The ―same parties‖ requirement has been relaxed…
c. Non-Mutual Collateral Estoppel
       i. Generally
             1. Common Law requirement of mutuality
                     a. Traditionally, the common law stated that collateral
                         estoppel should apply only when it can apply
                         mutually, that is, that a party should not be bound to
                         an adverse judgment unless the other party would
                         have been bound had the decision been reversed.
      ii. Defensive Non-Mutual Collateral Estoppel
             1. General
                     a. Defensive non-mutual collateral estoppel exists
                         when a defendant seeks to estop a plaintiff from
                         raising an issue that was decided in previous
                         litigation.
                     b. See Blonder Tongue Laboratories Inc. v. University
                         of Illinois Foundation in which Supreme Court held
                         that defensive non-mutual collateral estoppel was a
                         valid defense.
     iii. Offensive Non-Mutual Collateral Estoppel
             1. Offensive non-mutual collateral estoppel exists when a
                 plaintiff seeks to estop a defendant from raising an issue
                 that was decided in previous litigation
                     a. See Parklane Hosiery v. Shore in which Supreme
                         Court held that offensive non-mutual collateral
                         estoppel permitted on a case by case basis.
             2. Concerns/Problems with offensive non-mutual collateral
                 estoppel
                     a. Creates an incentive for plaintiff‘s to ―wait and see‖
                         how litigation against a potential future defendant
                         will be resolved instead of intervening—this might
                         actually increase the amount of litigation.
                     b. May be unfair to the defendant. The defendant may
                         not have had incentive to defend vigorously and
                         may not foresee the issue being important in a
                         future suit.
                              i. May be unfair if the previous judgment
                                  relied upon is inconsistent with other
                                  previous judgments.
             3. Factors to consider in determining whether to allow
                 offensive non-mutual collateral estoppel
                     a. Whether the plaintiff could easily have joined in an
                         earlier action



                                                                             61
                                                                                      BDF


                             b. Whether the defendant would have new procedural
                                opportunities unavailable in the first action.
                             c. Whether the previous judgment relied upon is
                                inconsistent with other previous judgments
                             d. Whether the defendant had sufficient incentives to
                                vigorously defend the issue in controversy
                        4. NOTE: criminal convictions
                             a. A criminal conviction can be relied on for
                                preclusive effect in subsequent civil actions.
                             b. BUT court shave been reluctant to give preclusive
                                effect to guilty pleas or minor offenses.

ERIE ANALYSIS

  I.     Is the law, rule or practice arguably procedural?
         a. TEST
                   i. In Sibbach v. Wilson the Supreme court concluded that a law is not
                      substantive just because it involves important or substantial rights.
                      If the law or rule regulates procedure, then it is procedural.
         b. If NOapply state law (Erie, 28 U.S.C. §1652)
         c. If YESdetermine if conflict between state and federal law, rule or
              practices.
  II.    Is there a conflict between state and federal practices?
         a. If NO apply both
         b. If YES see if there is a valid constitutional provision, treaty, statute or
              rule on point.
  III.   Is there a valid constitutional provision, treaty, statute or rule on point?
         a. If NO Determine if application of the relevant rule would be outcome-
              determinative.
         b. If YES The Supreme Court concluded, in Hanna v. Plumer that a valid
              rule of procedure that is on point will always trump a state rule.
  IV.    Is the application of the relevant state procedure likely to determine the
         outcome of the case?
         a. TEST
                   i. The test was first developed in Guaranty Trust Co. v. York. In
                      Hanna v. Plumer the Supreme Court modified the outcome-
                      determinative test. Must see if the outcome would be such as to (a)
                      encourage forum shopping or (b) result in inequitable
                      administration of the law.
         b. If NO follow federal practice
         c. If YES determine if there is an overriding federal interest justifying the
              application of federal law.
  V.     Is there is an overriding federal interest justifying the application of federal
         law? (Byrd v. Blue Ridge)
         a. TEST: factors/issues of federal interest
                   i. Seventh amendment right to jury trial



                                                                                        62
                                                                                BDF


             ii. Due process concerns
            iii. Division of power between judge and jury
            iv. Res judicata, issues of federal common law
      b. If NO apply state law
      c. If YES determine if both practices can be accommodated (Gasperini)
VI.   Can the federal and state practices both be accommodated?
      a. If NO apply Federal law as per Byrd balancing test.
      b. If YES make accommodate.
              i. See Gasperini v. Center for Humanities where court
                 accommodated state practice at trial level, but maintained federal
                 practice (standard of review) at appellate level.




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