Civil Procedure Freer/7th ed. Outline

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Civil Procedure
Authors Richard D. Freer
Wendy Collins Perdue
Text Image of Civil Procedure: Cases, Materials, and Questions
Civil Procedure: Cases, Materials, and Questions
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Unit 1: Personal Jurisdiction[edit | edit source]

  • Full Faith & Credit Clause: recognizes judgment of other states if it’s valid and has jurisdiction from the start

Does the court have power over the defendant?[edit | edit source]

  • Rule 4(k)(1)(A): A federal ct has jurisdiction only if the state in which it sits would have jurisdiction. EXCEPT:
    • ■ When authorized by federal statute
    • ■ “Nationwide service of process” for antitrust, securities, bankruptcy, interpleader (Rule 4(k)(1)(c)
    • ■ Rule 4(k)(2) PJ in any federal ct where (Rule 4(k)(2)):
      • Claim is based on federal law
      • Jurisdiction is constitutional
      • No state would have PJ
Long-arm Statute[edit | edit source]

It is a fundamental principle of due process that a court may not issue a valid judgment if it lacks authority over the defendant, that is, PJ. In addition, a court must have a statutory basis for exercising jurisdiction. In this case, we are not told about the long-arm statute, but I will assume that there is one and that it reaches the Constitutional limit. Therefore, the analysis will focus on whether the exercise of jurisdiction would comply with due process.

  • Pennoyer v. Neff (1877)
    • Relevant today: 14th Amendment’s due process clause acts as a limit on PJ: the validity of every judgment depends upon the jurisdiction of the ct before it’s rendered, not upon what may occur after
    • ○ Property wasn’t attached at beginning of case and defendant wasn’t in forum state
Jurisdiction Topic of Suit Source of Power Enforceable Against
In rem Ownership of property. Presence of the prop. That property.
Quasi-in-rem type 2 Personal obligation Presence of the property Property (only as much as property is worth, even if dispute is over more money) (attach at outset of case) (see Shaffer)
In personam Power of person Personal obligation That person & any prop they own; in state or not; Full Faith & Creditused to need consent & presence + service--new ways today

Quasi in Rem Jurisdiction

  • Allows P to acquire jurisdiction over D wherever D has property in forum
  • Harris v. Balk (1905): SC upheld jurisdiction--debt was attachable property for purposes of quasi-in-rem jurisdiction, and that debt was located wherever the debtor was
  • But note: If there’s a valid in personam judgment, can go after the prop anywhere in the country to collect (Full Faith and Credit)
  • Shaffer v. Heifner (1977): P owned stock in Greyhound and the ct attached D’s property (shares in corporation) and established jurisdiction over him
    • ○ All assertions of specific jurisdiction, including in rem and quasi in rem, require a min contacts test that would show you could reasonably foresee being haled into ct in that state
      • ■ Need some relationship btwn the D and the forum state that’s somehow related to the lawsuit
    • ○ HELD: no PJ because the thing to be sued over did not happen in DE, need a tangible connection beyond the situs of the stock
    • ○ So now in rem or quasi in rem isn’t as popular, because might as well go to in personam instead

Ways to get In Personam Jurisdiction[edit | edit source]

Consent[edit | edit source]

  • Can consent by their conduct in litigation or by failing to object timely
    • ○ Rule 12 (needs to object timely)
  • Or by contract (Forum Selection Clause)
    • ○ More recently, these are being enforced
  • Hess v. Pawlowski
    • ○ SC ruled that Hess (nonresident) implied consent when he drove on MA roads; accident occurred in MA
      • ■ Would also be “reasonable” today under International Shoe
    • **Note: this is a form of general PJ. HOWEVER, Daimler doesn’t mention whether its ruling applies if a state long-arm statute allows for a company to “consent” to general PJ. This is still being discussed in the courts

In-State Service[edit | edit source]

Transient Presence / Tag Jurisdiction

  • Rule 4(e): Proper in-state service for an individual (to determine if service was proper)
  • Burnham v. Superior Court of Cal.: SC upheld jurisdiction over D who is physically, although temporarily, w/in state when served w/ process
    • Scalia: presence in the forum state has always been sufficient
    • Brennan: even temporary visitors benefit from state laws
    • ○ Tag jurisdiction is a form of general jurisdiction in that the claim need not arise or relate to the D’s presence in the forum
  • James-Dickinson Farm Mortgage Co v. Harry - can’t claim jurisdiction in another state not related to business by serving process aka “tagging” an executive officer temporarily therein
  • Personal service over an individual partner or member of such a non-incorporated business (LLCs!!!) who is present in the forum on company business will confer jurisdiction on the business
  • Fraud or kidnapping circumstances (lure someone fraudulently in order to serve them and gain PJ) à cts would probably not uphold this bc they want to discourage this

Domicile[edit | edit source]

  • Individuals: domicile if a place of general PJ
  • Milliken: there is PJ over D where D is domiciled even if D is temporarily away (instate service not necessary if domiciled there)
  • Businesses: state of incorporation — see general jurisdiction

General jurisdiction over any claim, whether or not related to forum contacts[edit | edit source]

General jurisdiction allows a court to exercise jurisdiction over any claim against a defendant if the defendant is “at home” in the forum state. A defendant corporation is at home in its state of incorporation, the state of its principal place of business, and perhaps in an exceptional case some other state where it has overwhelming activity. Daimler v. Bauman.

  • Available when contacts w/ forum state are so substantial as to render the D effectively “at home”
    • ○ Individual: domicile
    • ○ Corporation: state of incorporation and principal place of business
    • LLC: The law on general personal jurisdiction over unincorporated entities is unsettled at the moment
      • ■ Post-Daimler—LLCs, LLPs, and other unincorporated entities — treated like corporations for purposes of general PJ (most cts say this)
      • ■ AKA look for the LLC’s principal place of business, the state under whose laws the entity is formed, and (in an exceptional case) , or some other place where it could be considered “at home”
    • Before Perkins v. Benguet Consolidated Mining Co. (1952) (SC), only general PJ in state of incorporation
      • ○ Held: Also general PJ in the place of a corporation’s HQ
      • ○ Facts: D was a Philippine corp. During WWII, ran activities from OH. SC upheld general PJ in OH (not specific--didn’t have to do w/ OH) on account of its HQ being temporarily there
    • Mere purchases w/o continuous and systematic business contacts are not enough to establish general jurisdiction. ('Helicopteros')
    • Daimler AG v. Bauman (SC) (2014) (at home standard)
      • ○ Held: ct may assert general jurisdiction over D when the corp’s affiliations w/ the forum state are so constant & pervasive as to render it essentially at home in the forum state
      • ○ NOTE: High bar for general jurisdiction: even substantial contacts may be insufficient
      • ○ May be an exceptional case where conduct in state is so substantial & of nature as to render corporation at home in the forum state
      • ○ A defendant corporation is at home in its state of incorporation, the state of its principal place of business, and perhaps in an exceptional case some other state where it has overwhelming activity. Daimler v. Bauman.
        • ■ If question alludes that there might be a third place, mention this!!!
      • Hertz v. Friend: SC decided that the PPB was the nerve center (not “muscle center”)
      • **Note: this is a form of general PJ. HOWEVER, Daimler doesn’t mention whether its ruling applies if a state long-arm statute allows for a company to “consent” to general PJ. This is still being discussed in the courts

Specific Jurisdiction[edit | edit source]

The more promising jurisdictional theory is specific jurisdiction, which is available when there are minimum contacts between the defendant, the claim, and the forum state such that maintaining the suit would not offend traditional notions of fair play and substantial justice. See Int’l Shoe.

  • Approach to finding specific jurisdiction
    • ○ (1) Most important thing to look for is the contacts – emphasis is here in later cases though
      • ■ Look at quality of the contacts (how relevant they are to the case) and quantity of the contacts (but see BMS – need to have some relevant contacts no matter what)
    • ○ (2) Once it’s been established that there are purposeful min contacts in the state, can look at other relevant reasonableness factors (Burger King)
      • ■ If the factors weigh heavily for jurisdiction can overcome weaker factors
      • ■ Could make a difference in a close case
    • International Shoe--sets the minimum contacts standard (not a rule)
      • Standard: must “have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice”
      • ○ Ct held there was specific jurisdiction in Washington for the activities that occurred there--would have been general jurisdiction in Mo. (HQ)
      • ○ Int’l Shoe--Del. Corp, based in Mo. Employed 11-13 salesman in Wa., rented sales rooms, etc. Wa. wanted to recover unemployment compensation, refused to pay
    • Bristol-Myers Squibb Co. v. Superior Court of California (2017) (SC) --limits specific jurisdiction
      • ○ BMS NY/DE corp, makes Plavix. 600+ Ps sue in California (some not CA domiciliaries)
      • ○ Held: Must be some connection btwn the complaint and the specific claim
        • ■ Plavix not “at home” so no general PJ in Cal. (out of state Ds can’t sue for anything)
        • ■ No sliding scale: need relation btw forum and all claims. For specific jurisdiction, must be an affiliation between forum and underlying controversy, even though the company does do substantial business there (though not enough for gen jur)
      • ○ Dissent: Will make it difficult to aggregate claims, D purposefully availed itself in Cal.
        • ■ Lower cts split as to whether this applies to class action lawsuits.

What Contacts Will Suffice to Establish Specific Jurisdiction?[edit | edit source]

Look at the quality of the contacts:

  • McGee v. International Life Insurance: Cal. P sued Tex. life ins comp for benefits (purchased policy in Cal. & did all activity there). Contacts sufficient to establish min contacts bc everything was done in Cal. from the start.
    • ○ Held: A single act/interaction is enough for specific PJ if the suit arose from that interaction
    • ○ Due process clause allows for Ps in one state to sue company in another state if the suit is based on a contract which had substantial connection w/ P’s state

Purposeful availment This case resembles World-Wide Volkswagen in that the plaintiff took the product away from the place of sale. The unilateral activity of the plaintiff cannot subject the defendant to suit wherever the plaintiff takes the product.Unlike in WWVW, here the defendant [fill in the blank – something directed @ forum state].

  • Consideration is only applicable to defendants
  • Hanson v. Denckla: case of Delaware bank, plaintiff moved to FL (did little business there)
    • ○ Held: No PJ; D needs to purposefully avail itself of the privilege of conducting activities in that state
    • ○ If the way that the forum state gets involved is purely the unilateral activity of the P, generally there isn’t jurisdiction
    • ○ Distinction from McGee: here, only mailed trust info to company from FL, in McGee the P entered into the agreement there and did pretty much everything there
  • Insurance Corp. v. Compagnie des Bauxites: Ct now describes PJ by saying D has a constitutionally protected “liberty interest” in not being subject to jurisdiction where D hasn’t personally availed itself
    • ○ Confirmed that corporations have right to liberty as well--Santa Clara v. Southern Pacific Railroad, Citizens United v. Federal Election Commission (2010)
  • World-Wide Volkswagen v. Woodson(mobile-plaintiff rule)
    • ○ No personal jurisdiction in Oklahoma for defendants
      • ■ Did not purposely avail themselves or have minimum contacts
        • Foreseeability and/or 1 isolated occurrence doesn’t satisfy the min contact requirement
      • Unilateral activity of the plaintiff brought the car to Oklahoma
    • ○ ..if they told salesman they were taking it to OK-not enough for personal availment
    • ○ ..if the seller agreed to have car titled in the interacting w/ state gov’t, but not continuous
    • ○ ..seller arranged to have car shipped to OK--probably PJ in this case
  • Kulko v. Superior Court: Child support payment case after father sent children to CA to be w/ mother
    • ○ Held: Father didn’t purposefully avail himself--due process clause limits power of a state ct to render a valid judgment against a nonresident D
      • ■ Ct considered reasonableness factors. Might have been able to argue that putting them on a plane was enough to satisfy minimum contacts, but would probably be a good thing if divorced parents could work things out in a reasonable way. Don’t want to punish parents for doing the right thing.
    • Burger King v. Rudzewicz: D’s negotiation of a long-term contract (+ more interactions) with FL corporation jurisdiction for FL, no need to have entered the state (contract itself wouldn’t have been enough on its own)
      • o Contract alone not enough (AKA CONTACT W/STATE); ct also looked at REASONABLENESS FACTORS:
        • Burden on D
        • P’s interest in obtaining convenient and effective relief
        • Forum’s interest in resolution
        • Shared interest of states in furthering substantive social policies

Harmful Effects Test

  • Keeton v. Hustler Magazine: Defamation lawsuit (from NY) on magazine in NH bc distributed nationwide
    • ○ Ct upheld PJ despite P’s minimal contact w/ NH
    • ○ Held: If you reach out and create harm there (directed at the forum), will be minimum contacts
      • ■ D has to reach out and do it; advertising isn’t enough
    • Calder v. Jones: Cal. resident was subject of libel, acts that were subject of the article allegedly occurred in Cal., P’s career in Cal., calls for Cal. sources
      • Harmful effects test: even if D has never set foot in the state, jurisdiction can still be established if D specifically targeted forum state
    • Walden v. Fiore (2014): Drug case in airport in GA, tried to sue in home state of Nevada
      • ○ No PJ; important facts are D’s contacts with the forum state, not w/ persons who reside there
      • ○ “It is the defendant, not the plaintiff or third parties, who must create contacts w/ the forum state”
    • Vangheluwe: Doxing case where Ps around the country disclosed false info about P online
      • ○ Rule: merely posting a defamatory statement about the P online not enough to hale the poster into the state where P resides; instead the poster’s conduct must have involved P’s state in some additional way ('Calder effects test') (home address)
      • ○ Mere injury to a forum resident is not sufficient connection to the forum; the D needs to specifically direct tortious conduct at the forum

Stream of Commerce

  • Gray v. American Radiator & Standard Sanitary Corp. (1961)--law updated (McIntyre)
  • Asahi Metal Indust. Co. v. Superior Court of California: no maj opinion
  • J. McIntyre v. Nicastro (need to cite all 3) (SC) (2011)--not 5 votes so need to cite all

If the court follows the Kennedy approach from McIntyre v. Nicastro, then . . . . If the court follows the Breyer view, then . . . If the court follows the Ginsburg approach then...

  • ○ P (NJ) injured while using machine manufactured by D (inc. in England). D did not sell machines here, used a US distributor, located in OH.
  • ○ Kennedy (plurality decision--4)
    • ■ Stream of commerce plus some additional acts by which the D purposefully avails itself in the forum state
    • ■ Looking for more purposeful availment (marketing, commercial relationship, etc.)
  • ○ Breyer (Concurring opinion) (2)
    • ■ Looks at whether there’s a consistent flow of products in the forum state. One-time sale not enough (trickle of commerce); but thinks that there should be PJ if there were regular sales to the forum state.
    • ■ Is the flow of products a significant portion of the total sales of the company?
  • ○ Ginsburg (Dissent) (3)
    • ■ By having a foreign distributor sell its machines in the US, they did purposefully avail themselves to US markets nationwide--enough for specific jurisdiction
    • ■ Suit would be reasonable in any state it sells to

Unit 2: Notice & Opportunity to be Heard[edit | edit source]

  • To initiate a lawsuit, what do you need?
    • Summons (R. 4) - process
    • Complaint (R. 8 - later) - process
    • ○ Civil cover sheet
    • ○ Filing fee $400
    • ○ Application to proceed in district ct w/o paying fees. Can fill out a form to file w/o paying the fee.
  • Preliminary Injunction and Temporary Restraining Order (Rule 65)'
    • ○ Standard for PI
      • ■ P must be likely to succeed on the merits
      • ■ P must be likely to suffer irreparable harm without injunction
      • ■ Balance of equities must tip in P’s favor
      • ■ Must be in public interest
    • ○ TRO – emergency situations; only last until hearing on the matter; can be imposed unilaterally (ex parte) in exceptional cases
      • ■ Hearing as soon as possible (14 days); uncommon bc cts want the other party to have notice
    • ○ Can be dissolved at any time if needed
    • ○ Immediately appealable if denied (don’t need to wait until final judgment)
  • Seizure of Property (Rule 64)
    • ○ Special circumstances where party may dispose of or hide assets
    • ○ Ex: attachment, seizure of property, freeze assets, sequestration
  • In a typical civil action, notice consists of serving upon the D 2 documents (2 documents together are called process):
    • ○ Summons from the court
    • ○ Copy of complaint
  • After summons has been served, subsequent pleadings, motions, etc. can be served by mailing a copy to the party or her attorney. May be served by electronic permission if party consents

Constitutional (Minimum) Standard for Notice:

  • 'Mullane v. Central Hanover Bank & Trust Co.' [SC]:
    • ○ Held: Notice needs to be reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (cost-benefit analysis)
    • Standard: reasonably calculated under all the circumstances - balance these factors:
      • ■ Consider the value of the interest
      • ■ Cost of the investigation (amount of effort required)
      • ■ Increased chance of notice - if you go from publication to mail, that’s a big leap. Publication to an ad on the radio - not a big difference.
      • ■ Change in the accuracy of the proceedings as we give better notice.
        • In this instance, some will get real notice, we also have guardians looking after interest of absentees.
        • In comparison to the child custody case. If the parent doesn’t show up, this makes a big difference in the accuracy of the case.
Unknown Contact Info (can’t find it after trying) Could Easily Find Info Known Contact Info
Publication is ok, Jackson says this has long been an adequate way of attempting to notify people, if you don’t know their info what else can you do? If you could easily figure out where the person lives, do that and send them mailFactors to consider: cost benefit analysis above, Publication is insufficient, mail would be okay- do not need to personally serve (if personal service costs $100 but her trust is $5 every month it doesn’t make sense)
  • Jones v. Flowers (2006) (Sup. Ct.): sent letter to inform of tax delinquency - letter returned unclaimed - took no additional steps to contact owner - this activity did violate due process bc they knew that it was not received
  • Weigner v. NYC (2d Cir., 1988): ct upheld a foreclosure where notice sent by regular mail, but owner claimed not to have received the notice. He argued that notice by certified or registered mail should be required
  • Email? Several cts have upheld in regards to Ds who could not be served w/ process in the US. In each of these P demonstrated that email service reasonably calculated to give actual notice and therefore satisfied Mullane
    • ○ In domestic context, some cts have rejected email service of process bc not in FRCP
  • Covey v. Town of Somers: Court refused to uphold notice mailed to a person known to be mentally incompetent
  • Schroeder v. City of NY: Publication in a newspaper and posting of notices near the property insufficient if D’s name and address easily ascertainable from public records’
  • Greene v. Lindsey (US Sup. 1982): Court required service by mail in addition to posting on the door of the premises, though said reasonable in some cases

Rule 4 - federal rules for notice.

  • R.4c2: can only serve if > 18 & not a party to the complaint
  • Rule 4(e)--rules for service to an individual
    • ○ (1) follow state law (state you’re in or state of the dist ct) for serving a summons--sometimes state rule may allow a lower standard--fine to do that
    • ○ (2) Or follow 4(e)(2) methods:
      • ■ Personal delivery of summons and complaint to D
      • ■ leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
      • ■ Deliver copy to an authorized agent
    • National Development Co
      • ○ Held: a party may have several primary places of residence at which he may be properly served. As long as each has a sufficient indicia of permanence
      • ○ Rule 4(e)(2)(B): must be served at dwelling house or usual place of abode
        • ■ Must show the location has sufficient indicia of permanence
      • ○ May not spend a ton of time here, but it helped the case that he happened to be there at the time of the lawsuit (even though only there a month or so out of the year) & maid (capable adult) received notice
    • hotel case - this isn’t someone staying in a hotel for vacation, this was a long-term stay and the defendants had left the old home, First Nat. Bank & Trust Co, v. Ingerton
    • Rule 4(h)--Rules for service to a business (LLCs)
      • ○ Or Rule 4 (e) (1) STATE LAW
      • ○ Delivering a copy of summons + complaint to an officer, managing/general agent,
      • ○ or IF TO AN authorized agent and--if agent authorized by statute & statute requires--by also mailing a copy to D (mailing is only required if the agent is one authorized by statute (not if it’s to the officer) and the statute so requires)
    • Rule 4(f)--Service to inds in a foreign country
    • Rule 4(d) Waiving Service: D can waive service. When the D says - just mail it to me and that will be good.
      • ○ Benefit to the Defendant: might not be required to pay process fees. More time to answer - 60 days instead of 21 days. This is like an automatic extension.
    • 4(m): Timing: service must be made w/in 120 days after complaint is filed'
      • ○ Can only get an extension to show good-faith efforts to serve process
    • Rule 4 (k)(1)(A) -
      • ○ We can serve process throughout the state where the federal court sits, OR
      • ○ If a state court could do so as well
      • ○ ex) San Diego Federal Court can serve in Northern California even if not the correct district
      • ○ provides that a FC can piggyback on the long-arm statute of the state in which it sits

Unit 3: Subject Matter Jurisdiction *ALWAYS CHECK EVEN WHEN NOT IN QUESTION--EVERYONE’S DUTY[edit | edit source]

Federal Courts are courts of limited SMJ, the court is required to satisfy itself that it has jurisdiction. The only relevant basis for SMJ in this case is diversity (sec. 1332). To qualify for diversity SMJ, the parties must be completely diverse in citizenship and satisfy the jurisdictional amount.

  • State Courts are courts of general subject matter jurisdiction
    • ○ Federal Courts typically do not want to hear a lot of cases
  • Lack of SMJ is an absolute defense that can be raised at any time by any party (including the ct itself sua sponte)
    • ○ presumed bias against federal jurisdiction
    • ○ burden rests on plaintiff to prove federal jurisdiction if challenged
    • ○ A party can consent to PJ but they can not consent to SMJ
  • Cases can get in to FC, either because of a FEDERAL QUESTION or DIVERSITY OF CITIZENSHIP
  • Most cases that can be heard at the federal level can also be heard at the state level. Only a few types of cases can be heard exclusively in federal courts (i.e. patent cases)
  • When both federal and state courts have SMJ, P can strategically decide which court

Art. III: ceiling to how much jurisdiction the FCs can have. Out of this, Cong determines how much it wants.

  • Section I: federal court of appeals and district courts are the inferior federal courts. These inferior courts are optional as ordained by Congress. The Supreme Court is the only required federal court
    • Section II: Judicial power. 9 heads of jurisdiction (types of cases).
    • ○ Most important categories:
      • federal question or arising under jurisdiction (cases that arise under federal law). Governed by 1331.
      • ■ Between citizens of different states or between a foreign citizen or subject and a citizen of the US - diversity / alienage--1332
        • It doesn’t say how much money you need to have involved for diversity of jurisdiction. But when you look at the federal statute, it has an amount listed: $75k
      • Exclusive federal (civil) jurisdiction: patents, CR, bankruptcy, securities, etc.

Diversity Jurisdiction[edit | edit source]

Under 28 U.S.C. § 1332, there is SMJ between citizens of different states involving more than $75,000.A corporation has dual citizenship in its state of incorporation and its PPB. Here, the parties are completely diverse bc…(Strawbridge for complete diversity).'28 USC § 1332 Diversity Jurisdiction'

  • (a) Amount in controversy exceeds $75,000, excluding interest and costs
    • ○ Has to be more than $75,000 - not $75,000 exactly
      • ■ Injunctive relief — try to put a dollar amount
    • ○ Paul Mercury - Satisfied if P’s good faith claim meets the minimum
    • ○ Failure to actually recover that amount won’t eliminate jurisdiction (§ 1332(b))
      • ■ But see 1332(b): may be liable for D’s costs (doesn’t include attorney fees)
    • Ways to meet (Aggregation?):
      • ■ One plaintiff suing one defendant
        • All claims can be aggregated, even unrelated ones
      • ■ Two plaintiffs injured by a single defendant in a single event
        • Claims cannot be aggregated
      • ■ One plaintiff suffers more than $75,000 worth of injuries from two defendants acting together
        • Joint claim– no need to divide the damage amount just because there are two Ds
      • ■ Two Ps have claim worth more than 75k and diverse; not necessary to aggregate
    • ○ 28 U.S.C. §1367 - Supplemental jurisdiction. Idea is that if you have one claim that meets all jurisdictional requirements, and another claim that doesn’t meet the amount, but the incidents are related, may be able to join together in federal court.
  • Suit is between
    • ○ (a1) citizens of different states
    • ○ (a2) citizens of a state and foreign citizens (except foreign citizens domiciled in the same state)
    • ○ (a3) citizens of different states and foreign citizens
    • ○ (a4) a foreign state (P) and citizens of a State or of different States
  • Complete diversity - all Ps diverse from all Ds
  • No diversity of citizenship
  • Minimal diversity - some diversity, but some non-diversity
    • ○ Ex: Mass. v. VT & MA
  • Strawbridge v. Curtiss (1806)
    • ○ According to Strawbridge, 1332 requires complete diversity of citizenship
      • ■ Don’t want state cts to be biased
      • ■ FCs should have limited jurisdiction - this limits the jurisdiction more
    • Congress only requires minimal diversity for certain types of cases cases.
      • ○ Multiparty, Multiforum Trial Jurisdiction Act - minimal diversity allowed if accident caused at least 75 deaths
      • ○ Class Action Fairness Act - minimal diversity for class actions; when the aggregate amount in controversy exceeds $5,000,000

Alienage jurisdiction

  • VA v. French → yes, in 1332 (a)(2) satisfies
  • German v. French → No not a citizen of any state (US)
  • VA, Ger. v. French → No, limited jurisdiction
  • Va, Ger v. Tx, French → Yes, Diversity PLUS Alienage

How do you know what state you’re a citizen of?

  • Mas v. Perry (1974) Mr. Mas is a French citizen. Mrs. Mas - domicile of origin is Mississippi. Then she goes to LSU to be a grad student, gets married to Mr. Mas. Get married in MS. Then they go back to Louisiana for 2 years - where they live and where the tort occurs. File suit in Louisiana and then they move to Illinois.
    • ○ Held: Citizenship = domicile
    • ○ It’s more than residence. It’s your fixed home, the place you intend to remain.
      • ■ You get one when you’re born and you keep it until you get a new permanent home.
      • ■ Factors to consider: voter reg, purchase of home, payment of taxes, in-state college tuition, etc.
    • ○ Care about citizenship at the time the suit was filed.
  • If you’re a US citizen, and you leave the country, you’re a citizen of whatever state you were in
  • Galva Foundry Co. v. Heiden: D: lifelong cit of Illinois, but after he retired, had a 2nd home in Florida, got a FL driver’s license, registered to vote there, etc. Spent several months a yr in FL, several months/yr traveling, rest of time in Ill
    • ○ Court found that Heiden remained an Ill. domiciliary.
  • Held: rationale for DJ: protect nonresidents from possible prejudices that they might encounter in local cts. Since D was a long-time resident of Ill. - unlikely to encounter hostility in the cts
  • Representative suits §1332(c): legal reps adopt citizenship of person they’re representing (children, decedents)
  • DC — we treat DC as a state for diversity purposes.
Citizenship of Entities – 1332c1[edit | edit source]
  • Citizenship of a corporation: 1332(c)(1): state of incorporation + principal place of business
    • ○ Randozzo case: don’t screw this one up. It’s easy to do so don’t mess it up, use the words incorporated in...and principal place of business in…
    • ○ State of incorporation: easy to figure out
    • ○ Hertz v. Friend: SC decided that the PPB was the nerve center (not “muscle center”)
  • Unincorporated entities: citizenship of the partners
  • Belleville Catering: LLCs are citizens of every state of which any member is a citizen (not same test as corps)
Domestic and Probate Exception[edit | edit source]
  • Even if you have a case that would otherwise qualify for diversity jurisdiction...
    • ○ If it were a domestic relations case or a probate case, no federal jurisdiction
    • ○ Very narrow. By domestic relations, mean (divorce, alimony, child custody), not everything that involves family relations (related torts let’s say).
    • ○ W/ probate - won’t probate a will or administer an estate. But can still rule on cases related to estates.

Federal Question jurisdiction[edit | edit source]

There is federal SMJ if the case arises under federal law. (§ 1331).

  • §1331: The district cts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
    • ○ Cases w/ no federal substantive law in them: landlord/tenant disputes, contracts, family law, etc.

Well-pleaded complaint rule

  • Mottley: to settle a claim, RR gave D lifetime passes. Then a fed. statute forbade RRs from giving such passes. RR failed to honor passes. Complaint was for a contract dispute BUT the real issue was whether the fed statute applied when an agreement was in place.
    • ○ Well-Pleaded Complaint Rule (Holding): The actual claim needs to come out of a federal question, it isn’t enough that the defense will raise some constitutional or federal issue.
    • ○ Elements (not defense!) determines whether it “arises under” federal/const law
  • Well-Pleaded Complaint Rule also applies to counterclaims; i.e., even if counterclaim raises a fed ?, doesn’t invoke SMJ - Holmes
    • ○ EXCEPT: §1338(a) allows federal courts to hear cases arising under federal intellectual property law even if the intellectual property law claim is asserted in a counterclaim

Declaratory Judgment: Sometimes P seeks noncoercive remedy of a declaratory judgment - requests that the court declare the relative rights between the parties

  • For ex: ins comp may seek declaratory declaration that it isn’t required to pay under a policy bc the insured breached a condition.
    • ○ Coercive suit that would occur is a patent infringement case. That arises under fed law.
  • Ex: new inventor sues patent holder; wants declaration that patent is invalid
  • TO DETERMINE FED ? JURISDICTION...imagine what the suit would have looked like w/o declaratory judgment: plaintiff would have sued the insurance company for damages for not paying life insurance party
    • ○ Apply well-pleaded complaint rule to that suit (what would the original suit have been)

Centrality of the Federal Issue to the ClaimFed courts have imposed another statutory limitation on the words “arising under” in §1331.

  • Fed issue must also be a sufficiently central part of the dispute to justify jurisdiction.
  • Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (MODERN TEST FOR WHEN THERE’S AN EMBEDDED FEDERAL ISSUE IN A STATE CLAIM!): P claimed that D’s title was invalid bc the IRS failed to notify P of the tax delinquency in the proper manner before they sold the property to D - said it needed personal service, not service by certified mail according to federal law (title claim — state; notice — fed)
    • ○ Held: natl interest in providing a federal forum for federal tax litigation is sufficiently substantial for fed ?. Would not distort any division of labor between the state and federal courts
    • TEST: Federal courts will have jurisdiction over a state claim if the federal ingredient is:
      • Necessarily raised…
      • a disputed fed issue only important issue was one of interpreting federal statute
      • that is substantial collecting taxes is important!
        • Gunn v. Minton: malpractice claim (of a patent matter)
          • ○ Clarification of the “substantial” requirement: Must be important to the federal system as a whole, not just the immediate claim
          • ○ Decision of patent malpractice issue is a fed issue, but not sufficiently substantial to the fed judicial system and state-court jurisdiction would not upset the balance of power between the state/federal courts
        • And unlikely to affect the balance of power between state and federal courts Only a small portion of state tax cases are likely to involve questions of federal law

Joinder Rules / Supplemental Jurisdiction

  • rules about how you put together different claims in a lawsuit

Supplemental Jurisdiction (28 U.S.C. § 1367): A case that invokes federal SMJ - diversity of citizenship, alienage, or federal question- might include individual claims or issues that do not.

  • For any claim where the federal court has original jurisdiction, it may exercise supplemental jurisdiction over state claims that “form part of the same case or controversy under Article III”
  • Subsections (b) and (c) give specific exceptions
    • ○ (b) In diversity jurisdiction case, no supplemental jurisdiction over non-diverse joined parties
    • ○ (c) No supp jur if the state law claim is particularly complex or dominates over the fed claim

Removal to Federal Court[edit | edit source]

The general rule is that a case is removable if it would have qualified for original fed jurisdiction. There are two possible grounds for jurisdiction: diversity and federal question.

  • Removal: remove from state court to federal court
    • ○ 28 U.S.C. §1441 & §1446
  • Basic rule for removability: look at the grounds of original jurisdiction (1331, 1332), if those are satisfied, then those can be removed (with some exceptions)
    • ○ Need to look at the plaintiff’s claim as it was filed
  • Rule: Removal does not constitute consent to jurisdiction of either court
    • ○ can remove a case and then immediately file an answer contesting personal jur.

How Much Time to Remove...

  • In FC, D generally must respond to suit against her w/in 21 days of process. What happens if the D removes after (but before 30 days)? Is she late? No.
    • Federal Rule 81(c)(2): allows Ds at least 7 days after filing the notice of removal in which to make their defensive response in federal court.
  • D has 30 days from when the D is served to remove the lawsuit (1446(b)(1))
    • ○ OR according to 1446(b)(3), 30 days from when the case becomes removable
      • BUT 1-yr outer limit for diversity (& alienage) (1446c1)
        • If a federal question pops up, then it’s still okay
        • UNLESS if the plaintiff acts in bad faith (1446 (c)(1))
      • ■ Example of bad faith for diversity: if the plaintiff acts in bad faith trying to conceal the amount in controversy
        • Fraudulent joinder: P purposely spoils complete diversity so they can stay in state court. No plausible basis for recovery / no possibility for recovery
          • ○ Not totally in the statute yet, still in CL. This is about extra defendants when there’s not a legitimate claim against them.
          • ○ Still has 30 days from when the D figures out that there’s fraudulent joinder
          • ○ Boss v. Nissan: Car accident. P sued Nissan (not MD) in state ct & joined 3 MD residents as Ds During discovery, learned that P had fraudulently joined MD parties. Nissan filed notice of removal, over non-fraudulently joined parties
            • ■ Held: Removal was timely bc according to 1446(b)(1), D has 30 days to file a notice of removal from date ppl realize case is removable

Can you file…?

  • 1441(a) – D may remove to the district court for the district “embracing the place where such action is pending”
  • Instate defendant rule: §1441(b)(2): Ds sued in their home state may not remove to FC in a diversity case
    • Only blocks removals for diversity purposes, not original diversity filings
  • 1441(c) – a suit with both a state and federal component can be removed, but the state claim will be severed and remanded to state court
  • 1446(b)(2)(A): Rule of unanimity: all Ds who have been properly joined & served must agree to removal
    • D has chance to persuade the others to remove if D3 is served later; even though others ran out of time
  • §1446(b)(2)(c): If Ds served at different times,
    • Later-served D filed notice of removal: earlier-served D may consent even though it didn’t initiate it
    • Later-served D disagrees w/ removal... §1448: ... when a later served D would not have agreed to the removal, can file to remand the case to state court bc they would not have agreed to removal.
  • 1446(c)(2): if removing based on diversity, the sum demanded in good faith in the initial pleading shall be deemed to be the amnt in controversy (if nonmonetary relief/doesn’t mention – can assert amount in notice of removal)

How to File…

  • Make sure notice of removal includes the CITIZENSHIP NOT RESIDENCY
  • 1446(a): Need a short and plain statement of the grounds for removal together w/ a copy of all processes, pleadings, etc.

After Removal…

  • 1447(c): Procedure after removal generally: if you wish to remand on a defect other than SMJ, P has 30 days to remand back.
  • If court lacked SMJ, can do it at any point. Ct can also bring up sua sponte
  • 1447(e): If P tries to join a diversity-destroying defendant after removal, the court may either:
    • ○ (i) deny joinder
    • ○ (ii) allow joinder and remand the case.

Voluntary/involuntary rule (if D had destroyed diversity and then he leaves and you want to go to FC) (Rule 41)

  • Voluntary dismissal of a D (ex: P reaches a settlement) -> can remove
  • Involuntary dismissal of a D (ex: 12(b)(6) m/ dismiss) -> can’t remove
    • ○ If you have a voluntary dismissal, it’s unlikely that D will get back in the suit. There won’t be an appeal later or anything like that.
    • ○ If D files motion to dismiss & court grants it, P might appeal. If you put D back in the case and you have a lack of complete diversity, then this case shouldn’t be in the court system.

Unit 4: Venue and Change of Venue[edit | edit source]

  • Venue: determines where within a court system a case can be brought (which fed dist) (28 U.S.C 1391)
    • 1391(b): each state is free to prescribe its own venue rules to determine the proper place for litigation w/in that state’s judicial system.
  • Forum non conveniens: ct can invoke doctrine when the more appropriate ct is not in the same judicial system.
  • §1391(a)(2): venue rules in fed. court no longer depend on whether action is local (suit brought bc of prop) or transitory (other types) (most state court venue statutes continue to recognize the local action concept)
  • §1391(b) Gives you TWO choices, up to you, no better either way (as long as there’s PJ!)
    • ○ Venue is proper in:
      • ■ (1) RESIDENTIAL VENUE: a judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located
        • Concerned about D’s convenience, not as much P’s
        • Suppose P sues 2 Ds. D1 (S Dist. of Cal.), D2 (Central Dist. Cal) - either district bc in same state; not N. Dist. Cal.
        • For corporation -- where it’s subject to PJ (general/specific)
      • ■ (2) TRANSACTIONAL VENUE: a judicial district where a substantial part of the claim arose (or a substantial part of the prop that is the subject of the action
        • ex) contract, where signed, exercised, breached
        • For a corporation, might be the place where it was manufactured or the place of the accident. Maybe the place they sold it.
        • Bates v. C&S Adjusters: P brings suit in W.D.N.Y upon receipt of a collection notice from D. P incurred debt while a resident of W. Dist. of PA - also D’s PPB. P then moved to W.D.N.Y, when D mailed a collection notice at his PA address, the Postal Service forwarded notice to Bates’ new address in W.D.N.Y. D argued venue was improper…
          • ○ Held: Venue was proper because in 1391(b)(2) it says that you only need a substantial part of the events giving rise to the claim to arise in NY. The receipt of a collection notice is a substantial part of the events giving rise to the claim (harm) under the Fair Debt Collection Practices Act -- could have marked Do Not Forward.
        • ■ (3) FALL BACK: seems to give you another choice, where any defendant is subject to PJ
          • Only applies where there is no district in the US where (1) and (2) applies, then fall back venue, rarely used
        • ○ Other claims may have different statutes (patents)
      • “Resides” is different from citizenship, defined by the statute
        • 1391(c)(1) People: where domiciled
        • 1391(c)(2) Corporation or other entity: ALL districts where subject to PJ in this case
          • ■ general/specific
        • 1391(d) Corporations in states with multiple districts
          • ■ Treat each district as a separate state and analyze for PJ or
          • ■ Choose the district with the most significant contacts
        • ○ Non-resident of US: Any district
      • 1390(c) makes clear that the venue provisions of 1391(b) don’t apply in cases removed from state to FC
        • ○ Cases removed from state to FC are removed to the dist ct in the same district

Transfer[edit | edit source]

  • Fed transfers not restricted by state lines
    • ○ But no state can unilaterally transfer case to a different state (in state ct)
    • ○ If action concludes before it ought to be litigated in another state, can dismiss case under the doctrine forum non conveniens. Then can file new action in the other state
  • §1404(a)-- may transfer to any other district where it may have been brought / where all parties have consented for the convenience of parties & witness & in the interest of justice
    • ○ Only if original venue was proper and PJ was proper in both
    • Ct should consider… (1) 'convenience of parties, (2) convenience of witnesses, (3) the interest of justice
    • Choice of law under 1404…
      • ■ transferee court applies the same law as the transferor court would have applied. (Van Dusen)
        • EXCEPTION: transferor court’s law won’t follow case if P’s decision to bring suit in the transferor court violated a forum-selection clause in the parties’ contract
        • See Carnival Cruise Lines: upheld a forum selection clause printed in small type on the back of a cruise ticket (more efficient & cost-effective)
      • §1406(a): wrong venue, must transfer or dismiss.
      • Goldlawr Transfers -- ct can still file a transfer if lacking PJ (can be 1404 OR 1406)
        • Goldlawr, Inc. v. Heiman (1962): SC held that if case is filed in ct that lacks venue and PJ, ct can still transfer the case to the proper ct; doesn’t need to dismiss -- can’t decide merits, but enough pwr for this

Choice of Law

Transferor court had PJ Transferor court lacked PJ
Venue was proper in transferor court 1404(a) transfer(discretionary – court may transfer in the interests of justice, see considerations)Choice of law follows (except for when there’s a forum selection clause) MUST dismiss or Goldlawr transfer under either 1404(a) or 1406(a) (courts disagree over which statute applies in this situation)-Change in choice of law
Venue was not proper in transferor court MUST dismiss or 1406(a) transferChange in choice of law MUST dismiss or Goldlawr 1406(a) transfer-change in choice of law
  • Other categories: transferee court acts as if the suit were originally brought in the transferee court.
    • ○ Law that would be applied doesn’t stick (transferor court wasn’t a proper court in which to sue).
  • §1407 Multi-District Litigation (MDL): permits all these federal cases to be transferred to one district and consolidated for pretrial proceedings. Need not meet other venue requirements.
    • ○ In mass torts (airplane crashes), may be many cases in different fed districts which all raise the same ?
    • ○ May not be able to do a big class action in FC
    • ○ So could have discovery done 1x for this one defendant rather than doing it all over the country
    • ○ Once the pre-trial proceedings are done, supposed to go back to their home cts
    • ○ But not a lot go to trial
    • ○ Panel of judges decides who gets which MDL case

Forum Non Conveniens: dismissal w/ instructions to file in a different system

  • Want to transfer, but don’t have the means to do so (not in your own system)
    • ○ State-to-state, country-to-country
  • Piper Aircraft Co. v. Reyno: plane crash in Scotland; Piper in OH; sued comp in Cal.
    • ○ Demonstrates the balancing test used to determine whether a case should be dismissed due to forum non conveniens
    • ○ Ct of Appeals gave too much weight to the possible impact of the different substantive law in a different forum -- Generally, this should be a small consideration
    • Gilbert Factors to determine when FNC should apply…
      • ■ Private Interest Factors
        • Ease and access to sources of proof, attendance, cost of attendance, appropriate to action; all other things that would make trial expeditious and inexpensive
        • Not supposed to consider choice of law EXCEPT:
          • ○ When no remedy for Ps (statute of limitations problem) OR
            • ■ BUT court can condition its FNC dismissal on D waiving certain defenses, including statute of limitations!!!
          • ○ Remedy clearly unsatisfactory (N Korea..probs not, but Scotland is fine)
        • ■ Public Interest Factors
          • Certain locality may have a particular interest in case; burden of having cts try case
        • ■ If the 2 come out evenly, will give deference to where P chose to file (less so when foreign)

Unit 5: Pleadings and Motions to Dismiss[edit | edit source]

  • P initiates suit by filing complaint. P must arrange to give notice to the D through service of process (court summons & copy of the plaintiff’s pleading)
  • Federal Rules of Civil Procedure (sometimes called “notice pleading”)
    • ○ Majority of states follow. 1938: promulgation of the Federal Rules.
    • ○ Reaffirms Field’s goals: give notice & provide a mechanism for testing of the legal sufficiency of a claim.
    • ○ The P makes a short and plain statement of her claim, showing that she is entitled to relief.
  • New Era w/ Twombly and Iqbal? (2007/09): Plausibility Pleading
  • Can use high stnds as gatekeeping methods - keep out costly frivolous claims, but may keep out legit ones too

Requirements of a complaint Rule 7(a): Pleadings. Only these pleadings are allowed: a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and if the court orders one, a reply to an answer.

  • Rule 8:
    • (a1) Short and plain statement of SMJ (CITIZEN; exceeds $75k)
      • ■ Must allege basis for ct’s jurisdiction over all claims (federal ?, diversity, or supplemental)
      • ■ Adding PJ + venue is common, but not required (they are waivable so the burden is on the defendant to challenge them as a defense)
    • (a2) Short and plain statement of the claim showing that the pleader is entitled to relief'
      • Legal sufficiency: taking everything P says as true, P will win
        • Ex. Loss of consortium for spouses but BF and GF filing, not legally sufficient, not married, no recovery
        • IF LEGALLY INSUFFICIENT, Defendant files 12(b)(6) motion failure to state a claim (usually w/ leave to amend)
      • Factual sufficiency
        • Twombly: Parallel conduct is not enough to show an agreement
          • ○ Held: factual theory of the complaint must be “plausible”
            • ■ Plausible does not mean probable to result in a victory for the plaintiff. It means more than the plaintiff has at least some chance to win.
          • Ashcroft v. Iqbal: P alleged discriminatory policies by FBI. Detention isn’t enough to show discrimination by an officer.
            • ○ Held: Plausibility standard not limited to antitrust cases--reinterpreted Rule 8(a)(2) to apply to all civil cases in federal court
            • Standard for evaluating pleadings:
              • ■ Disregard legal conclusions
                • Sometimes allow things such as “negligently” drove though
              • ■ Determine whether remaining facts show plausible claim to relief
                • taking factual allegations as true
                • if inferences required, only plausible inferences allowed
                • ○ Swanson v. Citibank, N.A. (7th Cir): P applied for loan. Was initially approved; after appraisal, denied. P said bank and appraiser denied her bc of her race.
                  • ■ Held: plausibility standard only requires a P to allege a set of facts that are possible; w/ facts P presented, possible there was discrimination.
                    • P identified when who, how
                  • ■ Bruhl: compare to McCleary-Evans; this is the weaker case but cts divided on plausibility; depends on the judge
                  • ■ IF pleadings in the gray area, would say that some cts would treat this info as plausible & others would say that discrimination is implausible w/o some additional facts to show discrimination (direct evidence of racist comments, hiring history, etc.). Some courts hold that it is sufficient (compare 4th and 7th circuits)
                • ○ McCleary-Evans v. Md. Dep’t of Transp. (4th Cir): P worked for D for 20 yrs; despite experience & education, wasn’t selected, and positions were filled by 2 non-black candidates. Alleged discrimination.
                  • ■ Held: failed to include adequate factual allegations to support a claim that D discriminated against. Actions were too far separated and could have other lawful explanations
                • Georges v. Dominion Payroll: D hired, alleged she received only positive feedback, and was later fired and replaced with someone who was younger and had less experience.
                  • ○ Held: Complaint met plausibility stnd
                  • ○ Reason: only received pos feedback; replacement younger w/ less experience
                • (a3) Demand for relief sought'
                  • ■ Wherefore/ P requests....and such other relief the court thinks is appropriate.
                  • ■ Must ask for jury trial specifically! (38b – put in complaint, or if you forget that, put in another doc)
                  • ■ it’s okay to say an amount to be determined at trial, during Discovery (w/ diversity can just say it’s more than 75k w/ final amnt TBD at trial)
                  • Rule 54(c) & many state provisions: demand doesn’t limit P’s recovery
                • Pleadings must also have...Rule 10: governs the form of all pleadings in federal court.
                  • ○ (a) Caption - Every pleading must have a caption w/ ct's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings.
                  • ○ (b) #d paragraphs, can refer to the #d paragraphs in answer/later

Rule 9 - Special Pleadings (Heightened pleading standards for fraud and in some other kinds of statutes)

  • 9(b) -- Alleging fraud / mistake: heightened pleading (damaging for reputation)
    • ○ Party must state with particularity the circumstances constituting fraud or mistake.
    • ○ State of mind may be alleged generally.
  • Some types of securities claims also require heightened pleadings by law
  • Leatherman v. Tarrant County: SC held no special heightened pleading rules except Rule 9 & where Cong says

Rule 11: veracity in pleadings. Some reasonable basis in fact for a pleading

  • Can have a verified complaint--swearing that the complaint is in fact true.
  • Why do this? He wanted a preliminary injunction. If you swear to this, then it’s evidence.

Pleading Inconsistent Facts & Alternate Theories

  • Rule 8(d)(2) permits alternative statements of a claim or defense
  • Rule 8(d)(3) permits a pleader to state as many separate claims or defenses as it has regardless of consistency
  • Rule 11(b)(3) requires that factual contentions have evidentiary support

Response to a Complaint'

  • 2 main options after a complaint
    • ○ Answer--factual dispute--now go to discovery to sort out
    • ○ motion to dismiss
      • ■ If denied, need to go back and file an answer
      • ■ If granted, P may need to go back and amend the complaint--or case closed
Common language Legal Response
Didn’t do it Deny in answer → Discovery
Don’t understand what you’re accusing me of doing/clarify Rule 12(e): Motion for a more definite statement
Yes, but... (I did do it but I have a good defense) [illegality, statute of limitations, duress, Rule 8(c) has a list of affirmative defenses--not exhaustive]
Procedural defense [PJ, SMJ, venue, improper service of process, etc.]
Need additional D Rule 12(b)(7)
Settle Rule 41(a)
So what? That’s not a claim even if true… Rule 12(b)(6)
Wait, I need more time That’s in Rule 6, not a Rule 12 motion
  • Even if you’re not sure, just put it in the answer if there’s even a chance
  • Why file a 12(b) motion instead of putting it in an answer (or vise versa)?
    • ○ D would typically prefer to file a motion and dismiss a complaint (don’t need to go through discovery or admit the bad things you potentially did)
    • ○ A win on the merits can be better than a jurisdictional win. If D wins on the merits, the P can’t sue again in the state next door. A loss on the merits precludes another claim. But a jurisdictional loss doesn’t necessarily preclude this.
    • ○ Only has 21 days to file a motion or answer. Might sit on the jurisdictional issue for awhile and just include it in the answer

RULE 12 - Motion to Dismiss

  • (a) Must serve this or an answer w/in 21 days after being served summons + complaint
    • ○ (a1) Unless it waived service (Rule 4(d)), w/in 60 days after request for waiver was sent
    • ○ (a1) Must answer counterclaim or crossclaim within 21 days after being served
    • ○ (a1) Must reply to an answer within 21 days after being served if required
    • ○ (a4) if ct denies motion or postpones its disposition until trial, 14 days after notice of the ct’s action
    • ○ (a4) if the ct grants a motion for a more definite statement, 14 days
  • (b) Every defense to a claim for relief in any pleading must be asserted in the responsive pleading A party may assert the following defenses by motion (red = waivable! Need to go into answer or 1st R.12 motion):
    • ○ (1) lack of subject-matter jurisdiction
    • ○ (2) lack of personal jurisdiction;
    • ○ (3) improper venue;
    • ○ (4) insufficient process;
    • ○ (5) insufficient service of process;
    • ○ (6) failure to state a claim upon which relief can be granted; and
      • 12h: 12(b)(6) and (7) can be raised at any time through trial; but just based on the pleadings
      • ■ cannot be filed agaist an answer (would use 12c)
    • ○ (7) failure to join a party under Rule 19.
  • Motion must be made before pleading if a responsive pleading is allowed. No defense / objection is waived by joining it with other defenses or objections in a responsive pleading or in a motion.
  • (c) Motion for Judgment on the Pleadings. Like a 12(b)(6) motion; like a motion for SJ; after the pleadings are closed rather than before the answer—but before discovery
    • ○ Rarer; assumes everything in pleadings true
    • ○ But most say that if they can’t grant a 12(b)(6) motion, usually will force Ds to go to discovery
  • (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to & not excluded by the ct, the motion must be treated as one for SJ under R.56. All parties must be given a reasonable opp to present all the material that is pertinent to the motion.
  • (e) Motion for a More Definite Statement: if so vague or ambiguous that party can’t reas prepare a response.

Must be filed before responsive pleading & point out defects; Does NOT waive the right to make a 12(b)(6) motion

  • (f) Motion to Strike. May strike insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
    • ○ (1) on its own; or
    • ○ (2) on motion made by a party before responding to the pleading OR w/in 21 days if resp pleading not allowed
  • 12(g) and 12(h)
    • 12(g): motion under Rule 12 may be joined with any other motion allowed by Rule 12
      • ■ Can’t make 2 different Rule 12 motions (except 12(b)(6) & SMJ); BUT can make say a motion to extend time & then a Rule 12 motion (12(g) only covers Rule 12 motions)
    • 12h: 12(b)(2-5) defenses are waived if not included in first Rule 12 response
    • 12(h)(1)(B): For defenses 2-5, if D files an answer, it better be in the answer. If a D files a motion, needs to be in the motion. If it’s not in those, then it’s gone.
    • 12(b)(1) is never waived, allocation of judicial authority (12h)
    • ○ Not about the merits of the case, are about the place of the case
  • If responsive pleading is allowed, must make motion before response
  • Pleadings: documents setting forth factual and legal contentions of the parties as required by Rules 8 & 9.
    • ○ An answer is a pleading (Rule 7(a))
  • Motions: requests that the court order something (Rule 7(b)(1))
  • Pretrial conference order of the court supersedes the pleadings; issues not included in such an order generally are waived
  • Party may move to dismiss a case under doctrine of forum non conveniens
    • ○ Not a motion to dismiss under Rule 12(b)(3) improper venue; so it isn’t waived if asserted in the first Rule 12 response
  • Collateral and Direct Attacks on Personal Jurisdiction
    • ○ Direct attack: special appearance in court to challenge PJ
      • ■ Use when case is strong on the merits
      • ■ BUT! Need to be prepared to stick out the case through appeals
      • ■ Traditional rule: If state rejects...still need to go to trial there; can only appeal PJ decision after
    • ○ Collateral attack: client can ignore & allow the state ct to enter a default judgment against her
      • ■ Use when strong PJ defense and weak merits defense
      • ■ When P tries to enforce default judgment in home state, client could make a collateral attack
      • ■ In this attack, would argue that the other state’s judgment is not entitled to full faith and credit bc state didn’t have PJ
      • ■ Benefits: allows client to litigate at home
      • ■ Risky: P might try to enforce anywhere client has property--could be not at home
        • Wherever the P seeks to enforce the other state’s judgment, even if it’s in the home state--collateral attack only permits client to raise the issue of whether the court PJ; can’t contest the merits of the claim
        • If home state ct determines that other state had jurisdiction, then the default judgment against the client is enforced w/o litigation of the merits of the underlying claim
      • ○ If client has a weak case on the merits, might be better to do a collateral attack bc then can challenge PJ in a dif suit and if it was determined that they didn’t have PJ, P would have to re-file in home state.
        • ■ Might make them want to settle/discourage them from bringing a 2nd suit. If you lost PJ, not a big loss bc probably would have had to pay anyway. (collateral attack)
      • ○ If client has a strong case on the merits, probably a better idea to launch a direct attack on PJ
    • Baldwin: D claimed not properly served. Made special appearance & filed a motion to quash and dismiss for want of service [Rule 12(b)(5)]. Court quashed service, but refused to dismiss. D filed another motion to dismiss for lack of PJ [R.12(b)(2)]. Motion overruled, w/ leave to plead w/in 30 days. D didn’t file a plea -- so judgment entered for amount claimed. THEN D went to Iowa ct to claim trial wasn’t proper
      • ○ Held: by making a special appearance in the Missouri court, consented to allowing the Missouri ct litigate ? of whether it had PJ over D. After Missouri made its decision, D could have appealed in Missouri courts; can’t go to a different state to contest ruling after it already appeared.
      • ○ Res judicata (“claim preclusion”): can only challenge PJ once--in direct or collateral attack--not both
    • Challenging Federal SMJ
      • ○ Usually D will challenge by moving to dismiss under Rule 12(b)(1)
      • ○ P may challenge SMJ of a removed case by moving to remand to state court under 28 USC §1447
      • ○ Can raise it any time; even at SC
      • ○ Same rule applies w/ collateral attacks--Ds who litigate the issue of SMJ and loses can’t challenge it again in a separate action--though has narrow exceptions - Bankruptcy legislation
      • ○ Party can’t raise the issue of SMJ in a collateral suit -should have been raised in first proceeding


  • Rule 15(a)(1)(B): Can amend your pleadings (incl. answer) w/in 21 days of filing
  • 21 days to file an answer after being served; 14 days to answer after notice of denial of the Rule 12 motion
  • Admissions / Denials (*must include)
    • Rule 8(b)(1)(A): party must state in short & plain terms its defenses to each claim asserted against it
    • Rule 8(b)(1)(B): admit or deny the allegations asserted against it by opposing party
      • ■ Admit
        • Req by Rule 11 to admit anything that is obviously true; can settle if damaging
      • ■ Deny; by denying, allegation is joined (contested)
        • General denial (Rule 8(b)(3)): denies whole complaint (rare)
        • Specific denial (Rule 8(b)(3-4)): D responding to specific details of the complaint
        • 11(b)(4) how much basis you need for a denial “warranted by evidence” or “reasonably based on belief or a lack of information”
        • Rule 8(b)(5): can claim lack of knowledge; BUT can’t use if it’s public record / has access to knowledge
        • Rule 8(b)(6): allegations (other than damages) considered admitted if responsive pleading required & allegation not denied
          • ○ Some states require a reply though
          • Rule 7(a): a reply to an answer isn’t required but may be ordered
        • Don’t quote the denials, say: D denies the allegations in paragraph X.
          • ○ OR Admits to X, doesn’t have sufficient knowledge of the rest of the allegations in par X
        • ■ Legal Conclusion → Paragraph 8 asserts legal contentions to which no response is required. To the extent that it can be construed to contain factual allegations, they are denied.
        • ■ Claim insufficient knowledge or information
          • Treated as a denial
          • Can get around legal conclusion
        • Defenses (*must include, if applicable)
          • Rule 8(c)(1) lists common defenses (not every defense)
          • Must assert affirmative defenses in a responsive pleading or it’s waived!
            • ■ Must plead affirmative defenses in answer or they are waived
            • ■ GEOMC v. Calmare (2d Cir. 2019):
              • Plausibility standard of Twiqbal applies to defenses
              • BUT also need to consider that defense is limited to 21/14-day rules (not as much time), also consider the nature of the defense (statute of limitations should be readily available, maybe not for some others), warranting a relaxed application of the plausibility standard
            • ■ Majority of courts: say defenses don’t need to comply w/ Twombly and Iqbal
            • ■ BUT minority of courts: defenses do need to comply w/ Twombly & Iqbal
          • 8(d)(2): can plead alternative defenses
        • Counterclaim, maybe (I didn’t do x, AND you did y) (Can include...might have to)
          • ○ Why file a counterclaim as opposed to a separate action?
            • ■ Rule 13(a) sometimes requires a D to assert a counterclaim
            • ■ Example: If contract dispute, and both are alleging that the other breached the contract
            • ■ If it arises out of the same event, typically must be in a counterclaim
            • ■ If unrelated, may assert the counterclaim, but doesn’t have to
          • ○ Crossclaim (against a co-party)
          • ○ Can also force a joinder of co-Ds

If D fails to respond in appropriate, timely way → may be default

  • Default: notation on court’s docket sheet that D has failed to plead or otherwise respond in time
    • ○ Usually happens when P files complaint and D never shows up
    • Rule 55(a): D’s failure to respond w/in prescribed time doesn’t automatically result in an entry for default. P must ask clerk to enter the default on the docket sheet. Once the default is entered, D may not respond by motion or answer.
      • ■ Need a good reason
    • Rule 6(b): time extensions for good cause
      • ■ May be granted without a motion if requested within original deadline
      • ■ May be granted by motion after deadline in cases of excusable neglect
    • Rule 54(c): default judgment can’t exceed relief demanded in pleadings (so D knows what is on the line)
      • 55(b)(1): demands for specific relief must be entered by CLERK OF COURT
        • demands w/ specific amounts
      • 55(b)(2) all other demands must be rendered by a court order (prof. discretion)
        • Usually tort cases, judge will look at case, have a hearing, and determine how much in damages should be awarded
        • Also sent to judge if Defendant is minor or incompetent
        • need to send written notice to D of these steps at least 7 days before hearing
      • 55(c) set aside entry of default for good cause or excusable neglect - left for discretion of the ct
    • Rule 60(b): allows a motion to set aside a judgment if one’s already been entered for “excusable neglect”
      • (a) At the discretion of the district judge
      • (b) Most cts conclude that a lawyer’s failure to respond appropriately Rule 60(b)(6) unless extraordinary circumstances


  • Rule 15(a): Amendments before trial
    • ○ (a1A) May amend w/in 21 days after serving it (including the ANSWER), (APPLIES TO THE ANSWER) OR
    • ○ (a1B) If responsive pleading is required (complaint; answer);
      • ■ if the pleading is one to which a responsive pleading is required... 21 days after service of a responsive pleading (answer IS NOT a responsive pleading) or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier
      • ■ AKA: for the complaint, 21 days after person files an answer or a R. 12 motion
      • ■ **if party forgets to include Rule 12(b)(2-5) motion in answer, can amend w/in 21 days
    • ○ (a2) If too late...either when ct allows it or other party consents.
      • ■ Forman standard (SC): In the absence of some particular reason--undue delay, bad faith, failure to fix past problems w/ amendments--ct should typically allow amendments
    • ○ (a3) Any required response to an amended pleading must be made:
      • ■ w/in the time remaining to respond to the original pleading (whatever’s left of the 21 days…) OR
      • ■ w/in 14 days after service of the amended pleading, whichever is later.
    • Rule 15(b): Amendments During & After Trial – VARIANCE – Relates back
      • ○ (b)(1) Objects to evidence not in the pleadings, then evidence is not admissible, ct may allow pleadings to be amended
        • ■ Ct can do this when it “will aid in presenting the merits” and not overly prejudice the other party
      • ○ (b)(2) Other party does not object, then we simply pretend that the new claim was in the pleadings all along, and later can amend the pleadings, other party is consenting by not objecting
    • Rule 15(c): Relation Back Doctrine: Amend after SoL → Only if amdt would RELATE BACK to orig claim (a way around the SoL)
      • ■ g. SoL has run, D wants to assert claim after, but 15(c)(1)(B) says it can relate back if the new claim arises from the
        • same conduct,
        • transaction, or
        • occurrence as the original complaint, it relates back and therefore is timely
      • ■ Marsh v. Coleman: P terminated by D. filed suit for breach of contract. Then tried to add a claim for fraud after the SoL ran out for events that happened yrs later.
        • Held: it didn’t relate back bc fraud claim arose out of different time pd, dif conduct
        • Bruhl doesn’t really agree w/ decision (bad job applying test)
      • Amend to change the defendant (rare) - Rule 15(c)(1)(C)'
        • ■ Only works IF we sued the wrong D first but the right D knew about it,g. sue subsidiary instead of parent co. and parent knows. Not a duty but no point in hiding it.
      • Rule 15(d): Supplemental Pleadings. Sets forth events occurring after a pleading is filed.
        • ○ Add something that happened after the case was filed, NOT an Amendment
          • ■ After filed suit, D punches P in the face, P wants to add tort to case

Voluntary Dismissal (Rule 41)

  • 41(a)(1): Plaintiff may voluntarily dismiss once
    • Without prejudice by default
    • ○ Prior to motion or answer by D, or with stipulation signed by all parties who have appeared (P has to act quickly, Court or D can’t put any work into the case)
  • 41(a)(2): Dismissal by court order (requested by P)
    • ○ Without prejudice by default
    • ○ Any pleaded counterclaim by defendant must be capable of independent adjudication
  • 41(b) Involuntary Dismissal (failure to prosecute)
    • ○ With prejudice by default
    • ○ If P fails to meet certain rules/deadlines, D can move to dismiss; Sanctions under Rule 11
    • ○ g. failure to prosecute, lack of PJ, improper venue (some on merits some not)
    • ○ Most dismissals are under 12(b) not 41(b)
  • Voluntary/involuntary rule (if D had destroyed diversity and then he leaves and you want to go to FC) (Rule 41)
    • ○ Voluntary dismissal of a D (ex: P reaches a settlement) -> can remove
    • ○ Involuntary dismissal of a D (ex: 12(b)(6) m/ dismiss) -> can’t remove
      • ■ If you have a voluntary dismissal, it’s unlikely that D will get back in the suit. There won’t be an appeal later or anything like that.
      • ■ If D files motion to dismiss & court grants it, P might appeal. If you put D back in the case and you have a lack of complete diversity, then this case shouldn’t be in the court system.

Rule 11: Veracity in Pleadings

  • If worried about hurdle for pleadings being too high, could strengthen Rule 11 to keep bad pleadings out
  • Before applying sanctions, requires the opportunity to be heard
  • Rule 11(a): must sign every pleading, motion, paper submitted to the ct
  • Rule 11(b): signature certifies these things (lists how one violates R.11) [conduct subject to sanctions]­:
    • ○ (b1) Papers not being presented for any improper purpose
    • ○ (b2) Claims/defenses, etc. are warranted by existing law
      • ■ OR for a non-frivolous argument for extending, modifying, or reversing existing law)
      • ■ Need to tell the ct that’s what you’re doing though
    • ○ (b3) Facts have evidentiary support - not “are true” or “are true to the best of one’s knowledge” (in a verified complaint would have to be true to the best of one’s knowledge)
      • ■ Should have some basis for this
    • ○ (b4) denials of factual contentions must be warranted on the evidence, or are reasonably based on belief or a lack of information **Needs to be reasonable under the circumstances - 1 day to prepare before SoL runs out is different than 3 months to prepare, different stnds
      • ■ BUT it’s a continuing duty, if it becomes clear claim has no basis in law, duty to stop pursuing
    • FC can impose Rule 11 sanctions even when it might lack jurisdiction (Cooter)
      • ○ Had already voluntarily dismissed suit, still imposed
    • District ct may impose Rule 11 sanctions in a case in which the court is later determined to be w/o SMJ (Willy)
    • R.11c ways to impose sanctions – ct can file or judge can act sua sponte (judge issues order to show cause; show why you shouldn’t be sanctioned)
      • Rule 11(c)(2): opposing side can make a motion for sanctions
        • 21 Day Safe-Harbor Rule: Serve other side, then 21 days for the other party to fix the issue BEFORE you file w/ the ct - allows other side to correct problem 1st
      • Rule 11(c)(3): Court can also sanction attorney, law firm, or party on its own initiative
        • ■ Can apply to law firm or atty
      • Rule 11(c)(4): Monetary sanctions: compensation for attorney’s fees can only be ordered for sanctions imposed by motion –
        • ■ Goal is to give sanctions that suffice to deter repetition of conduct in future
        • ■ Possible sanctions: nonmonetary directives, penalty in ct, an order directing payment to the movant of part or all of the reasonable atty’s fees & other expenses directly resulting from violation
          • 1) 2 types of mo\netary sanctions: penalty paid into the court, or it could be paying the other side’s attys fees that were used in responding to that frivolous motion
          • 2) Party can recover attorney’s fees when it filed a motion for sanctions and the attorney fees were in response to the conduct in question
        • Rule 11(c)(5)(A-B): can’t impose monetary sanctions against a represented party for violating 11(b)(2)
          • ■ Or on its own, unless it issued the show-cause order under Rule 11(c)(3)
        • Rule 11(c)(6): order imposing sanction must describe sanctioned conduct & explain basis for
      • Verified pleadings are signed under oath (under penalty of perjury) and were once quite common--today has option to file a verified complaint, but hardly ever used
        • ○ Use: can be used as evidence
        • ○ Especially important w/ summary judgment

Other Sanctions

  • 28 U.S.C. § 1927: any lawyer in federal ct who multiplies the proceeding in any case unreasonably should be required by the ct to satisfy the excess costs, expenses, and attys fees reasonably incurred bc of such conduct
    • ○ Used to be hardly ever invoked
    • ○ Applies to all proceedings in federal court, including proceedings that are entirely oral
    • ○ Applies only to attorneys, not to parties
    • ○ 6th Cir held only applies to individual attorneys, not even the law firm
    • Split among circuits as to whether a showing of bad faith must be made in addition to a showing of objective unreasonableness
  • Rule 38 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1912 can also be used to sanction frivolous appeals (in addition to 1927)
  • In the absence of a statute or rule, cts have inherent power to sanction bad faith conduct by litigants or counsel--typically reluctant to extend it much & still need to give notice and opportunity to be heard

Unit 6: Discovery[edit | edit source]

  • Gather and exchange facts about issues that are in dispute (decided in pleadings)
  • Rule 26(f): parties supposed to get together for a discovery planning conference and decide whether they’re going to change any of the rules (instead of X interrogatories, going to do Y)
    • ○ Then will present this to a judge
    • ○ Judge will issue a scheduling order that will tell you how long it’s going to last (Rule 16(b))
    • ○ Set a trial date and date things were due
    • ○ Length will depend on how complex the case is and where you are
  • Rule 26(a): each party has to disclose certain info to other parties (mandatory disclosures)
    • Rule 26(a)(1): initial disclosures
      • ■ Requires each party to disclose certain info (incl ESI) w/o any request by another party
        • Must identify people with names and contact information holding discoverable info which the disclosing party may use to SUPPORT your case
        • Copies or descriptions of things that you may use to SUPPORT your case
        • P give calculation of damages and D give any insurance information
      • Rule 26(a)(1)(C): requires party to produce initial disclosures no later than 14 days after Rule 26(f) conference --typically 2-3 months after D served w/ process
    • Rule 26(a)(2): disclosures about experts
      • ■ 90 days before the trial date
      • ■ Expert testimony: Qualified by knowledge, skill, experience, training, or education
        • Lay witnesses: only permitted to testify about matters observed, may not offer opinions
      • ■ req detailed info about the expert & a report of her findings, conclusions, opinions to avoid surprises at trial
    • Rule 26(a)(3): pretrial disclosures
      • ■ Required no more than 30 days before trial
      • ■ Must set forth detailed info about witnesses and evidence they intend to present at trial
      • ■ Will have honed the issues remaining to be adjudicated
    • Rule 26(g): all discovery docs must be signed by counsel--certification that doc is basically correct & not interposed for an improper cause (delay, harassment)
      • ○ No safe harbor provisions and can be sanctions if rule is violated
      • ○ Rule 11 doesn’t apply to discovery, only Rule 26(g) / R.37
    • Rule 26(e)(1)(a): party must supplement discovery responses if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or correct info hasn’t otherwise been made known to the other parties
      • ○ Each party has a duty to police itself to ensure that previous responses are still accurate
    • In response to discovery (required), party can assert objections
      • ○ Ex: beyond the scope of discoverability (Rule 26(b)(1))
    • Protective order (Rule 26(c)): party can seek to limit discovery - something is sensitive or private
      • ○ Judge could also say it needs to be disclosed but under protection, maybe only certain ppl can see


  • Deposition (Rules 30, 31) (party and nonparty subpoena)
    • ○ Witness (deponent) placed under oath & responds to ?s
      • ■ No judge, only witness, lawyers, and a court officer designated to administer oaths (Rule 28)
      • ■ Testifies based upon current recollection, doesn’t need to do hw to prepare
      • ■ Anyone w/ discoverable info can be deposed
    • ○ Time limit: no longer than single day of hours unless agreed otherwise or court order – Rule 30(d)(1)
    • ○ If party seeks info from a corporation but doesn’t know person to ask, can name company as deponent and describe the matters on which info is sought- Rule 30(b)(6)
    • Rule 30(a)(2)(A)(i): up to 10 depositions per side, each one limited to one day of 7 hrs (Rule 30(d)(1))
      • ■ Unless modified under 26(f) conf
    • Rule 31: party can serve on the other parties a set of ?s to ask a witness
      • ■ Court officer then swears in the witness & asks ?s to witness
    • ○ To take someone’s deposition, must give reasonable notice to every other party (Rule 30(b)(1))
    • ○ Applies to party or non-party
      • ■ But need to get a subpoena to compel a non-party to show up because they are not required to show (but a party is required to show)
      • ■ Failure to get subpoena for non-party could result in sanctions if the non-party doesn’t show
      • Subpoena duces tecum: requires nonparty bring doc/tangible thing to the deposition – 30b2
      • Rule 45(c)(1)(A): deposition can be taken w/in 100 miles of where empl, lives, or reg goes
        • R.45 is for subpeonas
      • Interrogatories (Rule 33) (party-only)
        • ○ written ?s that require a written response under oath
        • ○ required to provide facts that are reasonably available, even if it includes reviewing files of docs (but not required to conduct new test supply info they don’t have)
        • ○ Good to get objective info, incl names, dates, and lists of docs
        • ○ clarify allegations set forth in pleading--could ask P in what respect D’s conduct was negligent 33a2
        • ○ Limit of 25 interrogatories/party --limit on # depositions can be modified by stipulation or court order
        • ○ When answer can be found in business record Rule 33(d)--permits responding party to specify the records in which the answer can be found
        • ○ responding party has 30 days to respond (Rule 33(b)(2)) unless authorized by the court
        • ○ If recipient considers some ?s burdensome or irrelevant--can object rule 33(b)(4)
      • Production of Documents and Things (Rule 34) (party and nonparty) (see Zublake case – proportionality)
        • ○ produce for inspection, copying, or testing all relevant docs or tangible things - typically used w/ ESI
        • Rule 34(b)(2)(A): 30 days to respond, either stating objections or agreeing to request
        • ○ Can secure things from a nonparty by (Rule 34(c))--45(c)(2)(A): through subpoena--can request docs, ESI, or tangible things at a place w/in 100 mi of person’s residence, employment, or reg bus transactions
        • ○ If party responds and indicates that it will produce some info, but not all--Rule 37(a)(4) incomplete disclosure must be treated as failure to disclose--motion to compel a discovery response--if motion granted, ct must, after giving opp to be heard, require to pay reasonable fees, including atty’s fees
      • Medical Examination (Rule 35) (party-only w/ a few exceptions)
        • ○ Requires a ct order; when health, phys, or mental condition of a party is in controversy
        • ○ Party requesting will choose the med professional
        • Rule 35 requires a court order--appropriate only when movant shows good cause and mental/physical condition is in controversy--req by SC
        • ○ Non-party may be ordered to undergo a med exam if in custody or legal control of a party (narrow standard) (Ex: parent suing on behalf of child--child isn’t technically a party)
        • Rule 37(b)(2)(B) sanctions for violating a court order to submit to a medical exam
        • Rule 35(b)(1): person examined is entitled to request a copy of examiner’s report
        • Rule 45: can’t order a nonparty to obtain a med exam (not in subpoena list)
      • Requests for Admission (Rule 36) (party only)
        • ○ Used to determine which issues are/aren’t in dispute
        • ○ If recipient doesn’t respond w/in 30 days, a matter is admitted Rule 36(a)(3)
          • ■ if recipient denies a fact later established at trial, it’s okay if harmless, BUT court may:
            • Order payment of reasonable expenses
            • May inform jury of party’s failure; and
          • Motion to compel discovery has to include certification that movant had conferred in good faith or attempted to with the person refusing to provide the info before bringing it to the court—Rule 37(a)(1)
            • Specific motions listed in R.37a3-compel discovery response, failing to answer ?s, produce docs, etc.
            • Not available for requests of admission or medical exams
            • R.37a4: evasive/incomplete disclosure/answer/response is treated as failure to disclose
            • Available sanctions—Rule 37(b)
          • Rule 38(b)(2)(B): sanctions if party denies a fact later proven in court

The Scope of Discovery: Nonprivileged, Relevant, and Proportional

  • Rule 26(b)(1): “Parties may obtain discovery regarding any 'nonprivileged' matter that is 'relevant' to any party’s claim or defense and 'proportional' to the needs of the case . . . .”
    • ○ Exception: Court has authority to issue a protective order placing conditions on the disclosure or protecting against disclosure altogether (ex: only viewable by parties in case)
  • 'Relevant' – loose standard. Doesn’t need to be admissible at trial, just has to appear reasonably calculated to lead to the discovery of admissible evidence
    • ■ Is the information relevant?
    • ■ What is it relevant to?
  • ○ Requesting party must meet low standard of “threshold relevance”
  • ○ Resisting party must prove irrelevance prior to the trial
  • 'Proportional': shouldn’t put undue burden or expense on party
    • ○ Can make a difference in some of those close calls
    • Rule 26(b)(1): consider 6 factors:
      • ■ importance of the issues at stake in the action
      • ■ amount in controversy
      • ■ parties’ relative access to relevant information
      • ■ parties’ resources
      • ■ importance of the discovery in resolving the issues
      • ■ whether the burden or expense of the proposed discovery outweighs its likely benefit.
    • ○ Information within this scope of discovery need not be admissible in evidence to be discoverable.
    • ○ Bard IVC Filters Products Liability Litigation: P seeking damages for injuries caused by filter. Seeking injuries about D’s discussion w/ foreign safety boards - hoping to contradict what D told the US FDA.
      • ■ Held: not entirely relevant AND not proportional when you weigh the costs & benefits
      • ■ Searching 18 foreign entities over a 13-yr pd for emails not entirely relevant to the suit (not US company) is NOT proportional (potential costs outweigh benefits)
    • Rulw 26b2: specific limitations on ESI
      • Cost Shifting in Discovery'
        • ■ Zubulake v. UBS Warburg LLC: did cost-shifting before FRCP rule change (still cited today)
          • Rule 26(c)(1)(b): court can specify terms of disclosure in terms of time and place and in terms of costs and expenses
          • Rule today: look at Rule 26(b)(1) factors (listed above) to see if it’s discoverable
Majority Exception Rarely
Discoverable, disclosing party pays Discoverable if requesting party pays (Zubulake) Discoverable and requester pays or non-discoverable because nonproportional
Relevant, low cost (most stuff) Costly, uncertain benefit Low benefit, very costly
  • 'Privileged': privileged communications (esp atty-client priv) not discoverable
    • ○ Not all communications w/ lawyers atty-client priv
    • ○ What’s privileged is:
      • confidential
        • As long as taking reasonable steps to stop inadvertent waivers, privilege still exists if a few documents slip through (but can’t go telling everyone or not priv); but can be waived
      • communications '
      • between the atty and client '
        • Privilege doesn’t protect interviews between atty and witness (witness is not the client)
        • Sometimes a 3rd person could be in the privilege: like a translator or a forensic accountant (necessary intermediaries)
      • for purposes of legal advice'
        • main problem that tends to come up is business advice (general counsel weighing in on bus decisions IS NOT legal advice)
      • Rule 26(b)(5): party has to expressly claim privilege w/ some detail in privilege log
        • ■ If inadvertently reveal privileged info, notify other party so they can return/ destroy it

Work Product Doctrine: protects material one party has generated in preparation of litigation from discovery (NOT atty-client privilege info--that’s privileged)--Rule 26(b)(3): called “trial preparation materials” in rule

  • Hickman v. Taylor: created the common law work product doctrine (not codified in FRCP yet)
    • ○ Wrote memos about witness interview (he writes notes to himself about what he says)
    • ○ Not privileged bc not w/ client
    • ○ SC holds he doesn’t have to turn over his notes bc Ps could talk to witnesses himself; don’t want to put lawyers on trial
  • Rule 26(b)(3): Largely includes Hickman information
    • ○ To get them, must show a substantial need and inability to get the info through other means
    • ○ (A) Documents and tangible things: in Hickman also had intangible things--rule doesn’t address that, but it’s understood that the mental impressions are protected as well
      • ■ “in anticipation of litigation”
        • Something like an accident report that’s done every time there’s an accident, probably wouldn’t be considered “in anticipation of litigation” if it’s something that’s done every time or done for some type of business reason as well
      • ■ Isn’t just stuff that the lawyer prepares. It can be an insurer or agent investigating as well. Doesn’t just need to be an attorney.
      • ■ Some exceptions:
        • Party has a substantial need for materials and can’t get through other means
          • ○ Ex: if witness is dead, might not be another way to get that information
        • ○ (B) Even when material needs to be turned over, must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney concerning the litigation

Unit 7: Adjudication: Summary Judgment, Trial, and Post-Trial[edit | edit source]

With SJ, don’t forget that partial SJ is an option!!!

  • Rule 56 (a): no genuine disputes of material fact → shouldn’t go to trial
    • ○ Material fact: relevant
    • ○ Genuinely disputed fact: enough such that a reasonable factfinder could find for either party
      • ■ If P has no evidence on some point, and D has 20 witnesses. So in this case all reasonable juries would have to find for D and so would have to find for the defendant.
      • ■ *allegations in pleadings is not evidence - unless affidavit (so evidence for D vs. pleadings → grant SJ for D)
        • Rule 11: need some factual basis
        • Scott v. Harris: When opposing parties tell different stories, one of which is blatantly contradicted by the record (VIDEO), so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for SJ.
        • BUT SEE Coble: audio recording in this case not enough for SJ bc could have missed key statements/parts of the incident
        • BUT just bc statistically more likely, doesn’t provide evidence about THIS case
        • As long as they’re inferences a reasonable person could make, okay to go to trial for the factfinder to decide
  • Standard for SJ: whether reas jury could find
    • ■ If 3 witnesses vs. 1 witness, still no SJ bc juries determine credibility
    • ■ BUT if P presents no admissible evidence, even if D has shitty evidence/not believed, should rule for D bc P has burden of persuasion - that’s why Ds motion more for SJ
      • OR if it’s 50-50 and no more evidence available, should find for D (remember cow case)
    • ■ Judge views the evidence in the light most favorable to party opposing the motion
  • ○ Anderson v. Liberty Lobby, Inc: if there’s a heightened burden at trial (more than preponderance of the evidence) → should be a heightened standard at the summary judgment phase
    • ■ If the evidentiary stnd at trial moves over, then the SJ stnd moves over
    • ■ P needed to find “clear and convincing proof” of malice SO “the mere existence of a scintilla of evidence” in support of P’s position is not enough at SJ phase
  • ○ 2 ways for moving party to discharge its initial burden:
    • ■ have affirmative evidence negating an element
    • Rule 56: show the absence of P’s evidence on some element
  • ○ Can have partial summary judgment, narrowing of the issues for trial – 56g
  • ○ How to make:
    • Time to File a Motion: party may file a motion for SJ at any time' until 30 days after the close of discovery. 56b'
    • ■ If motion is granted, then it’s a final judgment entered without trial or jury
    • ■ Party moves for SJ, must be properly supported by documentation – Rule 56(c)(1)
    • ■ Opposing party must present affirmative evidence to defeat properly supported motion – 56c
      • Has to be actual evidence and pleadings don’t count (but can rely on the other side’s allegations and admissions) & ct may consider other materials in the record (R.56c3)
    • Rule 56(d): if non-moving party shows for specified reasons why it can’t present essential facts, court can delay ruling on the motion or allow discovery
    • 56f: must give nonmoving notice & reas time to respond to motion
  • ○ Distinguishing SJ from other forms:
    • Judgment as a matter of law (JMOL): occurs during trial – Rule 50
      • Whereas summary judgment has to happen before trial
Rule 12 Motions Motions for Summary Judgment
Determines... Whether alleged facts state a claim that the law recognizes Whether there’s a genuine dispute of material fact for the factfinder to determine at trial
Standard Plausibility Whether a reasonable jury could find for either side by a preponderance of the evidence (51%)
Relies on... Pleadings Evidence (in written form); (pleadings ARE NOT evidence)Doesn’t assess credibility of witnesses
Assumes... That all plausible facts alleged in the complaint are true Views evidence in light most favorable to the non-moving partyAKA should assume jury will believe nonmoving party’s evidence and will disbelieve moving party’s evidence
Stage of the case... Beginning; determines whether case belongs in litigation at all Later; various points (at some point before trial) (directed verdict/judgments of law come after hearing evidence at trial)


  • When is there a right to a jury?
    • 7th Amdt TEST for civil cases: suit at CL or equity?
      • Generally, if P wants $ à jury (not 100% correct, but 95% correct)
      • P wants injunction à judge
      • If P wants both, jury can make its factual findings/damages, and judge would provide injunctive relief based on the jury’s findings (give both to the jury trial)
    • ■ Someone has to ask for it — invoke that right
      • Typically done in complaint: JURY DEMAND: P requests a jury trial of all issues so triable.
      • If you didn’t ask for a jury, have 21 days to file an amended complaint OR
        • Rule 38: Don’t need to put it in the complaint or answer.
          • ■ On any issue triable of right by a jury, a party may demand a jury trial by:
          • ■ serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served
        • ○ 7th Amdt has not been applied to states. States sometimes give more than the federal government.
  • Limits on peremptory strikes:
    • ○ Batson: can’t strike bc of race
      • ■ Creates a 3-step process for peremptory challenges:
        • Other side will say — based on what we see, looks like there’s discrimination
        • Other side will have to give some sort of explanation to this
        • Judge decides on what the truth is
      • ○ E.B. v. Alabama: can’t strike on the basis of sex
JUDGMENT AS A MATTER OF LAW (Rule 50)[edit | edit source]


  • May be motioned for by any party before the case is submitted to the jury but after the non-moving party has been heard on the issueRule 50(a)(2)
    • ○ D can file at close of P’s case and P files at close of all the evidence (after D’s case)
    • ○ Requires looking at the burden of production again
  • Standard: no reasonable jury could find for non-moving party (same as for SJ) – Rule 50(a)(1)
    • ○ Judge considers all evidence & reasonable inferences in light most favorable to the non-moving party
    • ○ Inferences must be reasonable
      • ■ Lavender v. Kurn: whenever facts are in dispute or the evidence is such that fair-minded men may draw diff inferences, a measure of speculation & conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to be most reasonable inference
        • Haney hit by a mailhook case. Strong evidence against P, but enough facts were there to deny JMOL & give it to the jury
      • ○ Safest to think of JMOL as operating only on insufficient evidence
        • ■ Even if a party has overwhelming evidence JMOL isn’t assured, but if so overwhelming that a reasonable jury couldn’t find for the other side then JMOL is proper
      • ○ If there is substantial evidence on both sides: court denies motion for JMOL and let’s jury decide
      • ○ If 50-50 chance that P is liable (2 equal options; no credibility issues), D has to win as a matter of law bc burden is on P to prove (Reid)
        • ■ cow got onto a RR and killed by a train. If the cow got onto the right of way through an open gate, RR wasn’t liable. But if it came through a break in the fence it was liable.
Renewed Judgment as a Matter of Law (judgment notwithstanding the verdict/JNOV) – Rule 50(b)[edit | edit source]
  • If granted, the basic result is the court ignoring the jury’s verdict
    • o Saying that the jury wasn’t reasonable as no reasonable jury could decide that way
  • Party must make motion for JMOL before case went to jury (or else they waived their chance)
  • Time limit: must be filed w/in 28 days after entry of judgment
    • o This limit cannot be extended – Rule 6(b)
  • Why can the judge grant JNOV when he didn’t grant the original JMOL?
    • o JNOV is treated as a delayed ruling on the original JMOL because the judge wanted to give the jury a chance to come to the right decision because juries are important
    • o That way if the JNOV is reversed, the parties don’t have to redo the whole trial either
  • Rule 50(c)(1) judge granting renewed motion for JMOL must also make a conditional ruling on whether a new trial is needed if JMOL is overturned
New Trials[edit | edit source]
  • Rule 59: allows the ct to order new trial if the ct strongly disagrees w/ jury’s verdict and thinks it was against the heavy weight of evidence
    • ○ Limited to 28 days after final judgement
      • Rule 60(b)(2): If a party discovers new evidence more than 28 days after judgment, may move for relief provided the motion is filed < yr after judgment
    • Rule 59(d) allows trial ct to grant a new trial on its own, w/o a motion by a party (can’t do this for JMOL)
    • ○ Don’t have to file for JMOL first
    • ○ Decision to grant a new trial isn’t considered a final judgment so typically it’s not appealable
  • Party could get a new trial for…
    • ○ Jury misconduct
    • ○ Judge decides there was a mistake in letting in certain evidence
    • ○ Procedural error: error must prejudice the party, cannot be a harmless error, and a party must make a timely objection to the error or else it is waived
    • ○ Verdict “wrong”...see below
  • Standard: against the clear weight of the evidence (lower than “a reasonable jury could not find)
    • Appellate stnd for reversal higher: abuse of discretion (HIGH standard)
    • ○ Not as high of a stnd as JMOL (not as drastic)
    • ○ Dadurian v. Underwriters at Lloyd’s of London: CoA judge thinks testimony about where the $$ came from is knowingly false so they said we need a new trial
      • ■ New trial preferable to JMOL, allows courts to avoid making credibility determinations
    • When verdict is excessive, district ct may use remititur as an alternative to ordering a new trial
      • ○ Can give an alternative amdt to P as an alternative to trial — P doesn’t have to accept, but if P doesn’t the ct will order a new trial
      • ○ Additur: opposite — verdict is too low and gives the D the choice of a specified higher verdict or a new trial — THIS IS UNCONST IN FED CT (7th amdt) — many states still allow though
    • Rule 50(c) is use it or lose it — if you don’t also request a new trial if the JMOL is overturned, you forfeit your right to seek a new trial after appeal
Appeals[edit | edit source]
  • General rule: no appeals until final judgment (different places where final judgment would occur)
    • ○ EXCEPT (very small exceptions):
      • ■ interlocutory appeal
      • ■ Mandamus
    • ○ Standards of review for appeals
      • ■ De novo: from new, no deference to what the lower ct said
        • Use this stnd for questions of law -- think they’ll do a better job on the law
      • ■ Clear error - deference
        • Abuse of discretion - only if it’s clearly incorrect
      • ■ No reas jury
        • Same as renewed JMOL standard (no reas jury could find…)

Unit 8: Erie Doctrine[edit | edit source]

  • Horizontal choice of law problem: which state’s law applies in Diversity cases
  • **Vertical choice of law problem**: whether fed or state law governs a decision in diversity cases (not fed ?!!!)
  • Erie Railroad Co. v. Tompkins: got rid of fed CL; BUT still use federal procedure
  • How to Apply…
    • ○ (1) Rules Enabling Act / Hannah Prong: Is there a federal positive directive (usually a FRCP, but it could be a federal statute that governs procedure like sec. 1404) that is on point and valid? (See Hanna)
      • If yes to both→ Hanna tells the FC to apply federal directive, overriding any conflicting state law. (SUPREMACY CLAUSE)
      • on point: Does the federal directive actually govern the matter at issue?
        • Hanna: the dispute involved how to serve process. FRCP tells us how to serve process in federal court, so the federal court follows that rule instead of the state rule.
        • Approach
          • ○ (1) does the fed statute talk about the same thing?
            • ■ More of the Scalia approach in Shady Grove (Majority)
          • ○ (2) Also check the whether it’s possible the 2 can coexist – if so, apply the twin aims of Erie (Ginsburg dissent in Shady Grove & Walker approach)
            • ■ Walker: FRCP 3, which governs when a federal case “commences,” was held not to govern the question of when an action commences for purposes of satisfying a state statute of limitations.
          • Valid: if it complies w/ the Rules Enabling Act
            • Test: Rule is valid if it’s rationally capable of being characterized as procedure; it’s a lenient test
              • REA permits the federal courts to promulgate rules of practice and procedure, so long as such rules do not modify substantive rights
              • ○ (1) Is the fed rule arguably procedural?
                • ■ Hanna: Rule 4 easily characterized as procedural
                • ■ Scalia approach in Shady Grove – R.23 is valid no matter what if it’s valid
                • ■ ***if it’s in FRCP, it’s valid (practically)
              • ○ (2) Mention Stevens approach…AND (step 2) does it modify or enlarge the rights given under state law? (Shady Grove)
                • ■ Although some rules can have both substantive & procedural aspects, a FRCP will almost certainly be deemed valid in borderline cases. See Shady Grove, in which Scalia and Stevens disagree over how to apply the REA but agree that Rule 23 is valid.
              • ○ If no valid statute or rule on point...apply Unguided Erie Analysis / Rules of Decision Act Prong
                • ■ Consider “twin aims of Erie”...
                  • prevent forum-shopping
                  • preventing the inequitable administration of the laws
                  • **Sometimes the FCs will tolerate some forum-shopping if there is a strong federal interest OR state int in following federal practices. See, e.g., Byrd.
                    • ○ Byrd: Should issue be decided by judge (state law) or jury (fed law)?
                      • Looked at state substantive interest - not a clear reason for rule
                      • Fed interest: w/ 7th amdt, prefer jury trials
                    • ■ So putting all these things together, should follow the federal practice
                  • Erie Guess: when state law governs, but state law unclear, FC determines what state’s highest ct would do
                    • ○ Deweerth v. Baldinger: FC did that here, then state ct said it was wrong...
                    • ○ 2d Cir. says no, already lost, not redoing the decision now unless there was actual error
                      • ■ Pits accuracy against finality (want a case decided)
                    • Certification: FC can send ? to state SC to see what it would do instead of making an Erie guess
                    • What procedures to the state cts need to use when handling fed cases? (Reverse Erie)
                      • ○ Need to follow fed procedures essential to effectuate the purposes behind the fed law
                        • ■ Most procedures aren’t essential to effectuate…
                        • ■ Important procedures that do change in state cts: right to a jury trial in federal law

Unit 9: Preclusion – MAKE SURE TO MENTION CHOICE OF LAW[edit | edit source]

Remember: preclusion rules stick to case 1!!! (see last bullet) MAKE SURE TO MENTION THISPreclusive effect of a fed diversity judgment' is a matter of fed CL, the fed CL will ordinarily borrow the preclusion law of the state where the judgment was rendered in a diversity case. (Fed CL in fed ? cases)'Res judicta AKA claim preclusion: Claimant (incl counterclaims) may only sue on a “cause of action” once

  • Forces plaintiffs to join all claims arising from a single basic event into one case
  • (1) Same claim as case 1 (or “cause of action”)…walk through each, but go w/ transactional on exam
    • Primary Rights Test (min view): allowed to have different claims for different rights (right to property, right to bodily integrity)
      • Still have issue preclusion so wouldn’t relitigate issues
      • Different evidence for the different issues (some overlap)
      • Carter v. Hinkle: car accident btwn P & D. Prop damage to P’s car & personal injury to P.
        • ○ Held (minority approach): 2 claims; personal injuries and prop damage.
      • Single Wrongful Act test: stems claim from a single wrongful act and second case is barred if it stems from the same unlawful act as the first
        • ■ Similar to transactional, but there can be multiple wrongful acts within the same transaction/occurrence so they don’t always overlap or reach the same answer
      • Transactional Test (MAJ) party has to join all claims stemming from the same transaction or occurrence in the same case or else will be precluded from bringing further claims stemming from that same transaction/occurrence
        • ■ Some claim that is based on the “shared nucleus of operative facts”
          • Closely related facts
          • If taken together it forms a convenient unit for trial
          • If treating it as a single transaction squares with parties’ expectations
        • ■ Ex: multiple contracts on similar subject/time/topic
      • (2) Same parties as case 1
        • ○ OR persons “in privity” / other nonparty preclusion scenarios
          • ■ Taylor v. Sturgell: Case 1: Herrick v. FAA. wanted FAA docs. FAA said no. sued for docs. loses. Case 2: Taylor v. FAA. friend of Herrick, wanted same plans. Sued for the docs. Same plane. Represented by the same attorney.
            • Held: No such thing as virtual representation, instead gave 6 exceptions for when different parties can be in privity:
              • ○ By agreement
              • ○ Substantive legal relationship
              • ○ Representative suits (e.g. class action, estates, etc.)
              • ○ Party in present case “assumed control” over prior case (e.g. hired lawyers)
              • ○ Litigation by proxy
              • ○ Special statutory scheme inconsistent with due process- bankruptcy and probate proceedings
            • Principle: everyone gets their day in court
          • (3) Parties in same posture as in case 1
          • (4) Case 1 ended in valid final judgment “on the merits”
            • ○ Valid: with jurisdiction (PJ & SMJ)
              • ■ not the same thing as correct
              • ■ NOTE: even if there’s a clear procedural error in case 1, still valid as long as there’s jurisdiction. Up to parties in case 1 to appeal.
            • ○ Final: final in the trial ct.
              • ■ Case that’s pending on appeal is final in this purpose.
              • ■ If decision is then reversed on appeal…
                • Party can reopen a judgment if the decision is based on the first case that was overturned (Rule 60(b)(5))
              • ○ On the merits: not decided on certain jurisdictional or procedural grounds that would prevent the ct from getting to the merits.
                • ■ Dismissal for lack of jurisdiction, improper venue, or failure to properly join a party under Rule 19 are not under preclusive effect – Rule 41(b)
                • ■ Failure to prosecute, default, SJ, failure to state a claim etc. is still “on the merits”
                • ■ Settlement: not judgment on the merits but the settlement will usually have clause saying P can’t sue again
              • Exceptions: Victor in first case is not barred from suing on judgment to collect judgment
                • ○ Claim preclusion doesn’t apply if the first court lacked SMJ
                • ○ Parties agree to allow further suits later
                • ○ For overwhelming concerns for fairness to be able to bring up again later (really rare)
              • Issue Preclusion (Collateral Estoppel): narrower; some particular issue treated as resolved; but a claim often has multiple issues IF YOU’RE USING THIS CHECK CHOICE OF LAW (sticks to case 1; FCs usually apply state preclusion law in div cases)
              • Ex: P v. D for battery - P wins
                • ○ Then D says that P is a liar and that he never touched P
                • ○ P sues D for slander in case 2
                  • ■ Not claim preclusion, but there’s some overlap
                  • ■ D touched P w/o consent - that was settled in case #1 so wouldn’t be an issue in case#2
                • (1) Case 1 was valid final judgment on the merits - see above, same requirements
                • (2) Same issue in case 1 + case 2
                  • (a) Cromwell v. County of Sac: no issue preclusion bc the bonds at issue were different (but both were related to the fraudulent issuance of the bonds
                  • (b) Consider how narrow “issue” is and the influence of which party asserts it
                  • (c) S v. J for negligence; S wins (general verdict); J v. S —> issue preclusion on J’s negligence, issue preclusion on S’s freedom from negligence (because they would have had to determine both to reach that verdict)
                  • (d) S v. J for negligence; J wins; J v. S for negligence —> NO issue preclusion on J’s negligence, NO issue preclusion on S’s negligence (could have been negligent in the first place OR it could have been contributory negligence on the part of S, we don’t actually know)
                • (3) Issue essential to the judgment in case 1
                  • (a) preclusive effect if changing it affects outcome of the case w/ all other issues held constant (Rios)
                    • (i) Prof’s on/off switch trick: hold one constant & flip the other to see if it changes the outcome, if it does then it’s essential
                    • (ii) In orig case D was found negligent but P was also found negligent so went in D’s favor. Issue of P’s negligence is precluded, but D’s isn’t. If you make it to where P was not negligent but D still was, then the outcome would change to P winning. If you switch it to where D was not negligent, but P still was, then the outcome of P losing would stay the same.
                  • (b) S sues J for negligence. J raises contributory negligence def. Jury returns special verdict finds S negligent and J not negligent. Ct enters verdict for J. THEN J sues S to recover damages arising from same accident. Can J assert issue preclusion against S as to (1) his freedom from negligence or (2) S’s negligence?
                    • (i) Findings here are alternative determinations...AKA neither finding was essential…
                      • 1) S neg
                        1. a) If you flip S, not J → S not neg, J not neg → J wins
                        2. b) SO S’s finding of negligence not essential
                      • 2) J not negligent
                        1. a) If you flip J, not S → S neg, J neg → J wins
                        2. b) So J’s finding of not negligence is NOT essential either
                      • (ii) 2 restatements take different approaches:
                        • 1) Alternative findings restatement: even though 1st one wasn’t essential to the case, give preclusion to both
                        • 2) Restatement 2: don’t give preclusion to either unless affirmed on appeal
                      • (iii) Cts disagree on which approach to use
                    • (4) Against whom may preclusion be asserted?
                      • (a) only parties of case 1 can be estopped (or privity exceptions - Taylor)
                        • (i) Everyone has their day in court
                      • (5) Who can assert estoppel?
                        • (a) Only parties (mutuality) - old view
                        • (b) Only stranger D (nonmutual defensive)
                          • (i) Stranger D can assert estoppel to DEFEND THEMSELVES from being sued
                          • (ii) Bernard v. Bank of America Nat’l Trust & Savings Assn: first family tried to sue Cooks for getting family member’s money, then family tried to sue bank for giving money to the Cooks
                            • 1) Bank (not in case 1) allowed to assert estoppel to defend themselves
                          • (c) Both P and D (nonmutual offensive)
                            • (i) Allows stranger P to assert issue preclusion...already litigated so I should also win here
                            • (ii) Parkland Hosiery Co. v. Shore (SC, but only applies to FCs): Allows nonmutual offensive collateral estoppel at the discretion of the trial court…consider rejecting if following factors…
                              • 1) P could have easily joined in the earlier action (Easy joinder)
                                1. a) Don’t want to create an incentive for P to wait and see
                              • 2) OR where the application of offensive estoppel would be unfair to D
                                1. a) Foreseeability of litigation/incentive to litigate
                                  1. i) Ex: if case 1 for small damages, less incentive to defend vigorously
                                2. b) If basis for estoppel is inconsistent w/ one or more previous judgments in favor of D (ex: large accident case)
                                3. c) If 2nd action affords D procedural opportunities unavailable in 1st action that could cause a different result
                                  1. i) Ex: if D had to litigate in an inconvenient forum
  • (iii) cts don’t like to allow it because it creates incentive to ‘wait and see’ how other’s litigation goes and it creates a risk of inconsistent judgments
    • 1) g. train case w/ 100 Ps, 1st 20 trains loses, 21 P wins, 22-100 could use preclusion to ride the wave
  • (6) Exception: May not apply if there was an intervening change of law
  • Which Preclusion Rules Apply if Jurisdiction Differs?
    • ○ State to State: first state’s preclusion rules
    • ○ State to federal: Law of preclusion that applies in case 2 is the law from the rendering court (preclusion law “sticks” to the judgment)
    • ○ Fed to Fed (different states):
      • ■ Fed question case: federal CL of preclusion (Parkland Hosiery)
      • ■ Diversity: applies federal law BUT the fed law will = state law

Joinder and Supplemental Jur (mention 1367c if in an essay ?)[edit | edit source]

Step 1: What picture / rule applies? Step 2: Follows the rule? Step 3: SMJ / Supplemental JurisdictionFor R.18 (& others), make sure to check aggregation rules in SMJ section! (P may aggregate claims even if unrelated)Impleader – R.14

    • o 14a(1) D MAY serve a nonparty who is liable for all or part of the claim against it; has 14 days after serving the answer to serve TPD; OR if late, D needs the court’s leave to implead the TPD (IMPLEAD)
      • MAY serve; not same parties so would not be claim preclusion
      • AKA can join a third-party to get…
        • Indemnity (full) (insurance; vicarious liability) OR
        • Contribution (partial) - typically for joint tortfeasors
      • Marvicka: Child inj using a jointer machine made by D. D filed 3rd party complaint alleging right to indemnity from school district for negligent maintenance of machine
        • Indemnity: enables tort-feaser to shift entire burden of judgment to another
        • Contribution: 2+ actors liable; each required to pay his own proportion of damages
      • o (2) TPD…
        • must assert any def against TPP’s claim under R.12
        • must assert any counterclaim against P under R.13a; may assert others under 13b; or any crossclaim against a TPD under R.13g
        • may assert any defense that TPP has to P’s claim, and
        • may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the TPP (DOWNSLOPING)
          • if it had any others would use R.18
        • o (3) P may also assert claims against TPD if it arises out of the same transaction/occurrence (UPSLOPING). If It does, TPD must assert defense, counterclaim, or crossclaim
        • o (4) Any party may move to strike the third-party claim, to sever it, or to try it separately.
        • o (5) TPD may proceed against a nonparty who is or may be liable for all/part of claim against it
      • R.14b When a claim is asserted against a plaintiff, the P may bring in a 3d party if this rule would allow a D to SMJ – READ 1367 LITERALLY
        • o Check if any of the suits have SMJ independently
        • o No SMJ? → §1367(a); whether it satisfies Gibbs (common nucleus of oper fact w/ the underlying action)
          • Impleader: YES; requires TPD to be liable to D for all/part of P’s claim (underlying dispute)
          • Downsloping: meets test; can only be asserted if they arise from same transaction or occurrence as underlying dispute
            • TPD does not equal P under 1367, so DOES NOT APPLY
            • Federal claim → ok
            • Same state → ❌ (See Owen)
            • Owen Equipment & Erection Co. v. Kroger: OPPD impleaded Owen, then P filed upsloping claim against Owen; OPPD got SJ. W/ Owen and Kroger – not diverse.
              • o Holding: a plaintiff cannot bring a cause of action against a citizen of the same state in a diversity case
                • EVEN under supplemental jurisdiction
              • Note: If P asserts a compulsory counterclaim (13a) against TPD, there’s no supp jur (if there’s a complete diversity problem)
                • o Bc it’s a claim by a plaintiff, by a person made a party under R.13
                • o This one is unclear what the plaintiff would do in this situation