Subject Matter Jurisdiction? Art III generally, statute

Subject Matter Jurisdiction? Art III generally, statute specifically • 1331 federal question • 1332 diverse domiciliaries, amount in controversy, class axn • 1367 a) same case/controversy b) 1332 exceptions for

persons made parties by plaintiffs under 14, 19, 20, 24 Personal jurisdiction?

• Consent • Property • Presence • Long-arm Rule 4(k) fed juris where state would have juris

o Continuous and systematic? Arises out of contacts? o Constitutional? min contacts/FPSJ

Venue?

• 1391(a) diversity cases, 1) all defs reside 2) sub events/occurrences or property 3) def subject to personal jurisdiction

• 1391(b) fed question 1) all defs reside 2) sub events/occur or property 3) any def found if no other place it can be brought

• 1391(c) corporation is anywhere subject to personal juris • 1392 in any district in state w/ property involved in action

Remove?

• 1441 remove to any case where court could have been • 1453 remove class actions w/o regard to citizenship of def in

state of action, any def can remove w/o consent of all def Transfer?

• 1404 convenience of parties and witnesses, interest of justice, where it might have been brought

• 1406 where venue improperly laid, transfer or dismiss, interest of justice?

Motion to dismiss?

• 12 at pleading stage

• 50 before submitted to jury, judgment as a matter of law; renewed motion after trial/motion for new trial

• 55 default judgment • 56 summary judgment • 59 new trial

Should we have discovery and what does it include?

• 26(a) initial disclosures, 30/31 depositions, 33 interrogatories, 34/45 document requests, 35(a) physical exams, 36 admissions, 45 subpoena, 26(c)/37(a) protective order, compel, 26(g)/37/11 signing/sanctions

Join claims or parties?

• Permissive? 14 (indemnify), 18 (claims), 20 (parties), 24 (intervene), 22 (interplead), 42 (join or separate for convenience and justice)

• Required? 13 (cross and counter), 19 (necessary parties) Representative litigation? Rule 23

• Who should represent? A) all of 1) numerosity 2) commonality 3) typicality 4) adequacy

• When should we have a class action? B) one of 1) inconsistency or impaired interests, eg, limited funds 2) injunctions 3) predominance and superiority

Appealable?

• 54(b) final jdmt for 1 of many claims when no just delay • 1291: appeals cts have juris over final decisions of dst cts • 1292 a) injunctions b) controlling question of law aided

by immediate appeal • 1651 writ of mandamus

Preclusive effect?

• Final judgment? On the merits? Same claims? Same parties? • Same issues? Full and fair opp to litigate? Actually litigated?

Actually decided? Necessary to judgment?

complaint & answer

$ in controversy citizens

I. A Survey of the Civil Action JOINDER OF CLAIMS AND PARTIES (13-‐25)

Jurisdiction Pleading (1-11) Discovery (26-37) Trial Judgment |-----------------------------------------------------|-----------------------------------------------|---------------------------------------------------| Motion to dismiss (12) Summary Judgment (56)

Jurisdiction: Are the right parties in the right place?

II. Personal Jurisdiction: Does the court have power over the defendant? a. Traditional basis for personal jurisdiction (Pennoyer v. Neff)

i. Physical Presence (Tickle v. Barton, Burnham) 1. Domicile (Mas v. Perry)

ii. Property iii. Consent (Hess v. Paulowski, Carnival Cruise Lines) iv. Long-‐arm statute

1. General/continuous and substantial contacts with forum (Burger King v. Rudzewicz, Helicopteros) 2. Minimum contacts for specific jurisdiction (Ashai Metal)

b. Expansion of personal jurisdiction: due process requires minimum contacts + fair play/substantial justice i. Minimum contacts (International Shoe, World-‐Wide Volkswagen v. Woodson) are required

1. Quality and nature of contact must be more than casual or isolated a. Def purposefully availed himself of benefits and protections of forum (Hanson v. Denckla) b. Placing product into stream of commerce may or may not suffice (Asahi)

2. Cause of action arises out of contacts with forum for specific jurisdiction

Fed Personal

Venue Remedy Appeal Preclusion

Fed ? Diversity

State

SMJ

Supp.

§1391 §1404 FNC

Subst. Need Undue Hard.

Issue Claim

DUE PROCESS

Notice

Opportunity to be heard

ii. Fair Play and Substantial Justice once min contacts established: (1) interests of defendant (2) interests of plaintiff (3) interest of forum state (4) efficient judicial resolution interstate (5) shared policy interests of several states

iii. FRCP 4(k): Long-arm statutes (Gray v. American Radiator) authorize state to exercise the right of jurisdiction c. Jurisdiction over Property

i. Rem (Shaffer v. Heitner) ii. Quasi-‐in-‐rem (Pennoyer)

d. Due process (Pennoyer v. Neff) Do we value finality and efficiency over accuracy? i. Notice (Mullane v. Central Hanover Bank, Jones v. Flowers) should be reasonably calculated to reach defendant ii. Opportunity to be heard (Fuentes v. Shevin, Goldberg v. Kelly, Connecticut v. Doehr)

III. Subject Matter Jurisdiction (Capron v. Van Noorden): Is the court competent to hear this case? a. Federal SMJ is limited by Article 3 of Constitution: controversies arising under federal law/involving diversity

i. 1332: Diversity of parties (Mas v. Perry) and amount in controversy > $75,000 (AFA Tours v. Whitechurch) 1. Domicile in state where reside and intend to stay indef. No new domicile until abandon the previous one.

ii. 1331: Federal question arising out of federal laws or Constitution (Merrell Dow, Grable, Mattley, Smith, Harms) 1. Original ingredient (Osborn), well-‐pleaded complaint rule (Mottley), Holmes’ creation test, not nec if no

private fed remedy (Merrel Dow) state claim depends on subs and question of fed law (Grable) iii. 1367: Supplemental jurisdiction: a) when federal ct has original jurisdiction it also has jurisdiction over any claim

arising out of the same case or controversy; b) except over defendants joined by plaintiffs under rules 14, 19, 20, or 24 when original jurisdiction came only from 1332 (Gibbs, Finley, Aldinger) c) and should exercise as in Gibbs

IV. Venue: What’s the most convenient place to have a lawsuit? a. Transfer and removal

i. 1441: removal to district court when case could have originally been brought there ii. 1446: to remove, file w/ grounds for removal, notice w/in 30 days to ct and all parties iii. 1447: remand back to state ct on lack of smj grounds at time; remand based on any other defect w/in 30 days iv. 1453: class action removable w/o regard to whether any def is a citizen of the state where the action is except that

the action may be removed by any def w/o consent of all def v. 1369: incomplete jurisdiction and citizenship of corporations where inc or principal place of business vi. 1391: a) where juris on 1332, venue where any def resides (jud dsrct) if all in one state, sub events/ omissions or

where def can be found; b) where juris solely on 1331, venue proper where any def resides (jud dsrct) if all in one state, sub events/omissions occurred giving rise to claim or c) where def may be subject to personal juris

vii. 1392: Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts.

viii. 1404: for convenience and interest of justice, can transfer to any other dist where case could have been brought ix. 1406: dismiss or when in interest of justice transfer to proper venue any case with improper venue laid

b. Forum Shopping i. Choice of Law (VanDusen, Erie R. Co v. Tompkins, Swift v. Tyson,)

1. Choice of law travels from transferor forum to transferee forum (VanDusen) 2. (Ferens) extends Van Dusen rule that transferor choice of law rules travel to transferee court to transfers made on

the plaintiff’s motion ii. Choice of Forum: (Hoffman v. Blaski, Bates)

c. Forum non conveniens (Gulf Oil v. Gilbert, Piper Aircraft) V. Party and Claim Joinder (Temple v Synthes; Mullane v. Central Hanover Bank, Buffalo Creek Disaster, M.K. v. Tenet, Lasa v.

Alexander, Castano, Falcon, Hansberry v. Lee, Phillips v. Shutts, Exxon Mobil) Who can and should join the case? What’s oru nomenclature, is there a rule that lets me join claim or party, SMJ over each claim and PJ over each party?, what are the preclusive effects, why join? a. FRCP 13: (a) compulsory counterclaim arising out of same transaction/occurrence where jurisdiction is proper; (b)

permissive joinders are those claims that aren’t compulsory (g) may crossclaim a coparty if out of same transaction/occurrence, including claims that the coparty indemnifies you (h) rules 19 and 20 govern party joinder

b. FRCP 18: party with a claim, counterclaim, crossclaim or 3rd party claim may join as many claims it has against opponent i. Only authorizes any (including unrelated) claim joinder when one related claim has been joined per other rules

c. FRCP 19a): party must be joined if joinder wouldn’t destroy smj/venue and person can be served if the court can’t grant complete relief without the party, they claim an interest in the claim such that adjudicating w/o them would impede or impair their ability to protect their interest or leave another party subject to risk of double, multiple, inconsistent obligations

i. 19b) if can’t be joined consider prejudice to parties, protective provisions, adequacy of jdmt, adequate remedy if dismissed due to inability to join absentee.

d. FRCP 14: party may bring in 3rd party nonparty to indemnify who must then assert any defense under rule 12, counterclaim under 13(a) and may assert claims under 13(b) and 13(g), defenses or claims against π that 3rd party π has; original π may assert any claim from same transaction or occurrence against the 3rd party ∆; anyone can move to sever

e. FRCP: 20 permissive joinder of parties where right arises out of same transaction/occurrence or any question of law or fact is common to all parties

f. FRCP 22: party with the property can interplead other parties to force litigation about the property

g. FRCP 23 Class actions i. (a) Who can represent class? (1) numerosity (2) commonality (3) typicality (4) adequacy ii. (b) When should we have rep. litigation? (1) limited funds (2) injunctive relief (3) predominance (4) superiority

h. FRCP 24: nonparty must be allowed to intervene when allowed unconditionally by statute or claims an interest relating to subject of action so that disposing of action would impair/impede ability to protect interest; may intervene if conditional right by statute or has a claim/defense that shares a common question of law or fact with the main action

VI. Motions to Dismiss (Temple v. Synthes, Case v. State Farm, Pruitt v. U.S., Buffalo Creek Disaster) Is there sufficient factual evidence to find for the plaintiff? a. Pleadings:

i. FRCP 8(a)(2): pleading must contain a short and plain claim that pleader is entitled to relief in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests” (Dioguardi)

ii. FRCP 11: sanctions against pleaders who misrepresent to the court that pleading is to the best of the person’s knowledge, information and belief formed after an inquiry reasonable to the circumstances; signed pleadings

iii. FRCP 12(b)(6): motion to dismiss on grounds that plaintiff failed to state a claim upon which relief can be granted iv. FRCP 15: a party may amend a pleading before the other side issues a response or 20 days if response not allowed v. FRCP 56: motion for summary judgment vi. FRCP 50: at trial, before question submitted to the jury, the court finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on that issue, the court may grant dismissal as matter of law vii. FRCP 55: judgment in default when defendant fails to plead or defend viii. FRCP 59: new trial ix. Twombly: pleading has to state more than legal conclusions, a formulaic recitation of the elements of a cause of

action will not do; obliges a pleader to amplify a claim with factual allegations where necessary to render it plausible, taken as true

x. Iqbal: legal conclusory statements are not entitled to be assumed true; factual allegations must support the legal conclusions, and when taken to be true, allow for a plausible inference that the plaintiff is entitled to relief

b. Sanctions (Garr v. US Health Care) FRCP 11: sanctions permitted if attny fails to make truthful representations to court VII. Discovery (DiMichel v. South Buffalo) Should we send a case to the jury? (26-‐37)

a. FRCP 26(a) describes required disclosures; 26(b): court can order discovery of any matter relevant to action, non-‐privileged; need not be admissible at trial if it can lead to admissible evidence; limits on ESI w/ undue burden/cost

b. FRCP 30(b): gives judge discretion as to written statements from witnesses VIII. Settlement

IX. Preclusion (Lavender v. Kurn, Rush v. Ohio, Hicks v. U.S. ) a. FRCP 52(a): a trial judge’s findings of fact are not to be disturbed unless clearly erroneous b. Merger and bar rule only applies when the original court had subject matter jurisdiction over the claim c. Issue preclusion: same issues of fact or law in one case may not be relitigated in another d. Claim preclusion: one day in court for all legal claims arising out of the same transactions and occurrences and same parties or

those in privity (another person with a legal interest in the claim) X. Remedy: (a) Declaratory (b) injunctive (c) compensatory damages (d) punitive damages XI. Appeals:

a. Common law/canon: a judge’s legal conclusions are reviewable but not the facts upon which he bases the conclusion b. FRCP 52(a): a trial judge’s findings of fact are not to be disturbed unless clearly erroneous and reviewing ct must give due

regard to trial court’s opportunity to judge the witnesses’ credibility c. ß1291: courts of appeals have juris over appeals from all final decisions of dist cts except where direct review in Sup Ct d. ß1292: appellate cts have jurisdiction over injunctions, receiverships, admiralty cases, …. e. ß1292(B): district judge must state in written order when order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that immediate appeal may materially advance termination of litigation; appellate ct may permit an appeal if application made w/in 10 days of order.

f. 56(d)(2): an interlocutory sum jdgmt may be rendered on liability alone even if there is a genuine issue re damages g. 54(b): court can only direct final judgment of one or more claim in a multiple-‐claim suit if it expressly determines that

there’s no just reason for delay; otherwise, no final judgment until all claims are fully adjudicated. h. ß1651(a) Supreme Ct and fed cts can issue writs necessary to help in juris and agreeable to usages and principles of law i. ß1652: federal law, except where Constitution or Congress otherwise requires, shall be regarded as rules of decision in civil

actions in US in cases where they may apply XII. Policy:

a. Costs and benefits of adversarial/adjudicative justice versus alternative dispute resolution; b. Repeat players/one-shotters; c. Personal jurisdiction and the internet/alternative forums

How can an adjudicatory system balance fairness, accuracy and efficiency? Definitions:

• Adversary system: parties in dispute have almost total responsibility for initiating, developing and pursuing a case • Inquisitorial system: court conducts an active and independent inquiry including fact finding by the judge • Participation principle: each interested party has right to participation • Accuracy principle: structure so chances of legally correct outcome increases • Goals of courts: conflict/dispute resolution and behavior modification • Questions a lawyer asks: is the grievance one that has legal relief? What’s the probability of winning a lawsuit? Will winning be

worth the time, effort and cost of a lawsuit? Values of Adjudication

• Due process of law is at the heart of the Constitution—our first guarantee is the right not to be deprived of life, liberty or property without due process of law

o Notice: o Opportunity to be heard: o We let Capron get away with getting around preclusion by arguing no federal SMJ because we value consistency>fairness o The court properly had jurisdiction in Tickle but choose not to exercise it because it was unfairly obtained.

• Litigation is a form of norm generation and rule making—substantive rules of property, tort, contracts are made in litigation itself • Implied powers for states over powers not assigned to federal courts; early on preference for limited federal powers • Fee incentives: contingent fees cause successful clients to pay the cost of litigation for unsuccessful litigants; insurance against

losing; taken when it is likely the client would be unable to afford the attorney’s fees if they lost; attorneys pay for lawsuits as they go along in the contingency fee scheme; main expense is time and betting that they’ll win and portion of remedy>costs; when the other side’s attorney is being paid by the hour more incentive to settle; if insurance pays, attorney has incentive to continue

• Is it fair for the outcome of a dispute to turn on the wits of the lawyer? Normative Questions

• Why let justices as opposed to legislators give meaning to the Constitution? • When do we value finality and efficiency over accuracy? • What is the concern about the amount in controversy in diversity cases in federal courts? Cases should be sufficiently important to

be used in our federal court system. • Alternative dispute resolution: + litigation is timely and costly, invites strategy, removes parties from direct control of process ,

incentivizes hiding facts, polarizes parties, disconncects parties’ interests in resolving dispute. -‐ conditions for ideal dispute resolution are rarely met b/c unequal resources, bias of decisionmaker, there may be a finding of fact only adversary testing can reveal

VALUES OF AN ADJUDICATORY SYSTEM

Jurisdiction comports with due process (only applies to states) when the court has power over the defendant and is competent to hear the case. Makes sure the lawsuit is in the right place.

Personal Jurisdiction: Does the court have power over the defendant?

extent of contacts: none . . . . . . . . . . casual/isolated . . . . . . . . . . . single . . . . . continuous but limited . . . substantial jurisdictional G

consequence: no jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . specific jurisdiction . . . . . . . . . . general jurisdiction

decreasing contacts increasing contacts

• Judgments against non-‐residents without due process would become instruments of oppression and fraud (Pennoyer); minimum contacts standard meant to protect defendant and check states from overreaching into sovereign authority of other states

• The validity of every judgment depends on the jurisdiction of the court before it is rendered, not what happens later • To take property at the outset of the case is to establish judgment over the defendant on the basis of an allegation alone; we say

this is fair in accordance with due process only in emergent circumstances like drug cases • Property owners should view seizure of property as a signal that they are being litigated against • Quasi-‐in-‐rem might be preferable to in personam for a plaintiff if you think the defendant will destroy/lose rem; can freeze rem • Notice by publication for an out-‐of-‐state defendant isn’t due process; but what about service over internet? • Full faith and credit as to the judgments of other courts as long as personal and subject matter jurisdiction were proper • Incentives to allow for default judgment and then attack judgment collaterally; issue preclusion if you litigate jurisdiction and lose

JURISDICTION AND VENUE

Traditional Basis Expansion of PJ

Physical Presence of person/domicile

Consent Continuous & sub contacts

Minimum Contacts

Long-arm Statutes

Fair Play Substantial Justice DUE PROCESS

Opportunity to be heard Notice

QUESTIONS TO ASK ABOUT JURIS. • Is there § authority to pull me into juris? • Is statute granting authority

constitutional? HOW TO EVALUATE DEFENDANT • Consented to jurisdiction? • Present in jurisdiction? Resident? • Has property in the jurisdiction? • Continuous and systematic contacts? • Is there a long-arm statute? • Is it constitutional? • Minimum contacts consistent w/ FPSJ? • Does the defendant’s conduct involve the

benefits and protections of the law?

Violated by lack of

Property

Subject Matter Jurisdiction: Is the court competent to hear this case? • State court is always competent except for exclusive fed juris; fed ct the default is no and Const has to enable Congress to grant • Federal SMJ is limited to controversies arising under federal law or involving diversity and amount in controversy

o Article 3 of Constitution establishes the Supreme Ct and federal courts as Congress authorizes; fed question or diversity o Ask: (1) does Article 3 give fed ct power to hear this case? (2) has Congress authorized this smj in a fed § like §1331/1332? o 1332: Diversity of parties (Mas v. Perry) and amount in controversy > $75,000 (AFA Tours v. Whitechurch)

A person’s domicile is the state where he resides and intends to stay indef. No new domicile until abandon old one. Corporation domiciled in state of principal place of business or state where incorporated (§1332) Under ß1332(d) and 1453 CAFA, federal smj for any class of > 100 plaintiffs, min diversity, > $5M in controversy §1332 is narrower than Art III which doesn’t have amount in controversy requirement; all diversity cases constit.

o 1331: Federal question arising out of federal laws or Constitution (Merrell Dow, Grable, Mattley, Smith, Harms) Article III is viewed as broadly allowing smj for cases arising under when fed law is an ingredient of original cause Mottley well-‐pleaded complaint: a federal claim must arise under the cause of action that the plaintiff brings.

Mottley tells you where to look but once you’re on the face of the complaint, what arises out of fed law? • Presence of the US as a party (Osborne) and original ingredient test: is fed law an ingredient of og claim? • Case arises out of federal statute and right to sue is in fed law (fed torts, civil rights act)

o Holmes creation test: if cause of action is created by federal law, then the case arises under fed law • Looks like case arises under federal law (Harms) but actual cause is about state cause of action (eg

adjudicating tort claims in response to a right created by federal law) • State claim turns out to be a federal claim (Grable)

o Fed cts should be able, but not req, to hear state law claims that turn sub & sign on fed law (Grable) 3 part test: 1) nec raises fed issue 2) actually disputed and sub 3) fed forum won’t upset

fed/state balance o Smith: 1) substantial disputed question of fed law is nec element of well-‐pleaded state claim 2) fed

forum warranted to ensure uniform § interp 3) “special circumstances” warrant federal forum • State claim turns on federal law but is still a state claim

o Lack of federal right to sue indicates that cause of action doesn’t arise out of federal law; expressio unis, lack of a welcome mat means keep out here, but isn’t a general rule, just an ex of why not sub fed interest (Merrell Dow)

o 1367: Supplemental jurisdiction: when federal ct has original jurisdiction it also has jurisdiction over any claim arising out of the same case or controversy; except over defendants joined by plaintiffs when original jurisdiction came only from 1332

Zahn: every plaintiff has to satisfy amount in controversy; overruled by Exxon-Mobil and ß1367

Reasons NOT to favor Federal SMJ Reasons to favor Federal SMJ Congestion of federal courts Prejudice against out-of-staters still exists Apply state law anyways Constitutional guarantee to privileges and

immunities of several states’ citizens Shouldn’t interpret cases under state law/nationalize autonomous state concerns

Institutional superiority to federal courts

Retards development of state law by unelected federal judges

Race to top between state and federal courts/cross-pollination of ideas

Diminishes incentives for state court reform by parties who can avoid state ct Forum shopping to take advantage

Fear of unfair local prejudice on part of businesses will cut willingness to enter markets across country and invest

Venue, Transfer and Removal: • Venue based on individual residence (reside where domiciled); sub part of events/omissions giving rise to claim occurred or sub part of

property subject of action is situated; fallback provisions additional basis for venue in judicial district o 1391a: where def subject to personal juris at time action starts if no other district action can otherwise be brought anywhere in US o 1391b: where def may be found if no district in which action may otherwise be brought anywhere in US o 1391c: corporation resides any district where it may be subject to personal juris on claim; in multi-state district, resides in district

where it has sufficient contacts • Transfer displaces the plaintiff’s geographical choice for litigation • Removal displaces the plaintiff’s choice of the state court system in favor of a federal ct in the same geographical area

o Can remove to federal court any case that could have originally been brought there o Defendant can’t remove when he’s sued in his own home state o Can only remove within jud sys to a fed court for the district embracing the place where the action is pending in state ct §1441 o Must file notice of removal w/ all pleadings, process and other papers on file in state action w/in 30 days of receiving P’s pleading

in state suit • Forum Shopping: fed cts apply choice of law rules and substantive law of state they sit in (Erie, Klaxon); do what state ct would

o Combination of Klaxon and Erie produces vertical uniformity b/w state and fed cts but destroys horizontal uniformity among fed cts in different states; consequently, forum shopping still possible if P can choose b/w courts in different states

o §1652: After Erie, we’re going to use state law. Klaxon says use choice of law rules of forum where fed ct sits. o Van Dusen: transferee court applies the choice of law rules of the transferor court; otherwise, defendants could forum shop o Erie, Van Dusen, Klaxon make fed cts apply subs law, choice of law of state ct the cause was transferred from—why remove?

SMJ PJ Venue

Power of court

Yes Yes No

Constitutional dimension

Yes Yes No

Can be waived?

No Yes Yes

Considers convenience?

N/A Yes Yes

SMJ PJ Venue Individual Domicile Min contacts Resides Corp Princ place Min contacts 1391(c) + incorp

Pleading should set up the contours of the litigation: What are we litigating?

• Plaintiff is master of her complaint • FRCP 8(a) short and plain showing statement entitled to relief • Pleading must be clear enough to give defendant meaningful notice and an opp to be heard on the issues being litigated • Can be used to harrass the defendant • What is the proper role of the judge: When should the court allow the plaintiff to amend the complaint? When should the court

help a plaintiff who has a claim with merit but hasn’t plead it properly • FRCP 15 allows a plaintiff to amend their pleading

What standard for pleadings?

• Twombly and Iqbal heighten pleading standard for cases with extremely important issues or high burdens of discovery; hasn’t yet been applied to ordinary casesplausibility standard

• Need to state a claim for which even if all the factual allegations were in the plaintiff’s favor, there would be legal remedy What safeguards are there to ensure truthful allegations? Rule 11 sanctions

3 General situations where the motion to dismiss might be granted:

1. Complaint shows injury that has no legal redress 2. Plaintiff failed to alleged a necessary part of the case 3. Complaint may be so vauge/confused that the court doesn’t know what the complaint is

• Do motions to dismiss adequately weed out invalid legal claims? No, only claims which are prima facie unfounded • Summary judgments weed out untenable claims at the end of discovery phase • Stronger pleading standard could avoid costs of needless discovery but will make it harder for plaintiffs to sue • Directed verdict and renewed motion for judgment as matter of law during and following presentation of evidence at trial

Merits Good?

Yes No Yes No

sanction No sanction

Reasonable inquiry?

No ? sanction

PLEADING (1-‐11)

MOTION TO DISMISS (12)

Test for Joinder:

a. What’s the right nomenclature (cross or counter complaint)? b. Is there a rule that lets me join claim or party? c. SMJ over each claim and PJ over each party? d. Are there any preclusive effects? e. Why join?

Vocabulary Interpleader: a defendant has multiple liabilities and says to the interested parties, figure out who gets it (holds rem and forces litigation) Impleader: if I pay, you pay Intervener: Can I come to the party too? Also has an interest in the case being adjudicated Necessary party: It’s your own party; can’t settle suit without you Permissive party: You can come if you’re also interested but we can go on without you Policy Questions:

• Why is joinder of parties always permissive but joinder of claims can be mandatory? • Is adjudication without specific parties fair? • When is it prejudicial to the defendants to have separate litigations? • Joinder may force co-‐defendants to unearth discovery materials or bring strong evidentiary claims against a co-‐defendant in order

to free themselves from blame. • What is the plaintiff’s strategy in bringing two lawsuits or joining? Defendant’s strategy in seeking joinder of another party? • Judicial economy to not let multiple lawsuits run out of the same transaction and occurrence; jurisdictional dismissals don’t

preclude you from litigating the merits of the case as other dismissals would

Managing information exchange between the parties: What are the goals of discovery? • Only relevant information is discoverable; cannot discover privileged information • Privileged information is discoverable upon a showing of substantial need and undue hardship to discover materials otherwise.

o Substantial need: the other side’s attorneys cannot access the info themselves (witness availability) o Undue hardship: no other way to get the information exists

Falcon 23(a)(2)-‐(3)

Common, typical

Castano 23(b)(3) Predominance/ superiority

Hansberry 23(a)(4) Adequacy of representation

Shutts Personal juris

Exxon SMJ

DISCOVERY AND TRIAL

JOINDER OF PARTIES AND CLAIMS (13-‐25, 42)

• Court created the work-‐product privilege in Hickman v. Taylor. Objective statements & notes v. subjective mental impressions • Trial only when a case isn’t already resolved through pleading, motions to dismiss and discovery phases • Main question: can the other party have the documents? If it’s relevant and non-‐privileged. • What are the goals of discovery?

o Preserve information that might not be available at trial o Isolate the issues that are actually in controversy o Find out what testimony is available on disputed facts

• What are the tools of discovery? o Initial disclosures, depositions, interrogatories, document requests, physical exams, requires for admissions, subpoena,

protective order/order to compel, signing/sanctions o Happens outside of the court itself and the judge has no role

• What are the values of the exchange of information in the discovery process? o Remedies information asymmetry o Promotes private attorney generals o Eliminates trial by ambush o Professional competition in adversary system—why should I have to share my hard work with the other party? o Wildly overdiscover in US cases; with final judgment rule we could discovery everything and the case could be thrown out o Whole idea of discovery is non-‐adversarialness but adversarial nature builds up here…only to result in settlement usually o Discovery is a wealth equalizer but there’s a tradeoff between free market of claims and efficiency

• When does discovery give one side the upper hand? Who has what advantages and incentives? o Defendant has privileged access to information/better control of info because the plaintiff needs time to get an attorney o Defendant has access to the witnesses and facts the plaintiff would use to plead her case o Incentive to keep quiet what you know the other side won’t find out—trading info could dissuade accuracy

• When considering fairness of information exchange, when is it appropriate to consider the pressures/burdens on witnesses? Esp in class action suits where they may be called to testify for their employers in a worker’s compensation/personal injury case?

Are there material facts in genuine dispute such that we need to have a trial?

• Only if there’s a complete absence of probative facts to support a conclusion does reversible error appear o FRCP 56: is there evidence of a factual dispute such that you need a factfinder? If so, let the jury weigh it

SUMMARY JUDGMENT (56)

o FRCP 50: before jury settles case, defendant moves for judgment as matter of law because the plaintiff has failed to show that there are any material facts in dispute; judge can either grant or hold rule 50 motion in abeyance

o FRCP 59: within 10 days, judge or either party can motion for new trial, judge can amend judgment after non-‐jury trial; std is that jury’s verdict is against the weight of the evidence

• Burden of persuasion by a preponderance of the evidence • What burden should the original plaintiff meet to prove their case has enough evidentiary support to go to a jury? What burden

should the defendant have to demonstrate that there is insufficient material evidence in dispute of a genuine issue? • (1) No plaintiffi’s evidence • (2) 50-‐51% trial preponderance of evidence • (3) 100% plaintiff’s evidence • (4) Defendant has killer evidence which plaintiff can’t possibly overcome to move for summary judgment

SETTLEMENT Fiss, (R 459), “Against Settlement” Overall: Fiss addresses concerns with the trend towards out-of-court settlement and the public view that settlement is “good,” despite interests in judicial efficiency. The problem is that the judicial system is not simply for resolving disputes. Imbalance of power: ADR assumes equality between the contending parties, but this is not realistic. Settlement is a function of available resources, and unequal bargaining power in settlement can influence settlement in different ways:

• Poorer party is less able to amass and analyze the information needed to predict the outcome of litigation – they don’t know, realistically, what their chances would be in court

• Poorer party may be induced to settle prematurely because of an immediate financial need – even though he may get more at trial (could border on coercion, for indigent parties)

• Poorer party might be forced to settle because of a lack of resources to finance litigation (again, coercion) • On the other hand, the “guiding hand of the judge” can employ measures to lessen the impact of unbalanced resources.

Absence of authority: ADR assumes the contestants are individuals; reality is that many are organizations or groups, so there is the problem of (not) being able to identify who really speaks for the whole. • Procedures of identification are faulty because the “authorized party” is usually the one who makes business decisions, not settlement

decisions on behalf of everyone in the organization. • With broader groups, like minorities, problem is exacerbated. • The problem of consent weakens the idea of settlement – when parties agree, it’s not clear who is agreeing to what … does everyone in the

organization or group agree? How does the representative communicate and get consent from all group members?

SETTLEMENT

Issue Preclusion Identical Issue Actually litigated Necessary to jdmt same parties (full & fair opp) (final jdmt)

• In class actions – no clear Rule structure for approving settlements: left to judge – and his idea turns on how he thinks it would come out at court; uses different standards.

• No definite agreement at the end of the day, so no safeguard for the parties actually involved.

Lack of judicial involvement: ADR minimizes the remedial aspects of lawsuits, and assumes judicial action stops when one party is declared the winner – when in fact the lawsuit could be one phase of a continuing struggle • Social reform cases (like school desegregation) require judicial supervision for years after the judgment – parties to settlement are denied this • Idea of efficiency is kind of lost: a judge faced with a request for a consent decree must spend time putting the pieces together to consider the

fairness • Settlements do not inspire vigorous enforcement by the courts, because they are seen as private bargains

Justice, rather than peace: settlement appears to achieve peace between the parties without the intervention of courts – but judicial decisions have a broader effect because they involved statutory interpretation that may have wider-reaching consequences. Settlement may therefore preclude justice from being done.

• The satisfaction that judges (and perhaps society) feels when a case is settled is not a reflection that justice has been done, but rather that another case has been “moved along” or that the work required by making a judgment is avoided.

The real divide is not between cases that “should” settle and cases that “should” go to court, but rather that adjudication is publicly oriented rather than privately oriented: “civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals.” The American view of law in public terms may be unique, and what is unique about it is that we DO something about the problems. “Adjudication American-style is not a reflection of our combatitiveness but rather a tribute to our inventiveness and perhaps even more to out commitment.” What effect with judges give an earlier lawsuit? Who should be able to come in lawsuit? Final judgment

Claim Preclusion same parties same transaction and occurrence • Claim preclusion/Res judicata, a thing decided; one chance to litigate a claim, factual issue, one full & fair chance, waived unless

claimed @ onset; one day in court for all legal claims arising out of the same transactions and occurrences and same parties or those in privity (another person w/ legal interest in the claim)

o Preclusion is judge-‐made common law—always at mercy of the second court; rendering ct can’t determine preclusive effect but writes terms of the judgment a

PRECLUSION

o Only runs against someone who was part of 1st lawsuit; none against someone who hasn’t had day in court o if the plaintiff splits claims into a small claim and a larger one, the defendant has less incentive to properly defend the

minor claim; wildly different incentives to defend o Groundhog’s day, same plaintiff different claim same transaction (Rush), compulsory counterclaim

• Merger and bar rule: claimed or should have; only applies when the original court had subject matter jurisdiction over the claim • Issue preclusion/Collateral Estoppel: same issues of fact or law actually litigated in one case may not be relitigated in another

o Rule of mutuality: judgment binding only on parties in privity and can only be invoked by parties and their privies; modern erosion in rule with indemnification and rethinking.

o Non-mutual offensive collateral estoppel: stops a def who lost to another P from trying to relitigate against new adversary Wait and see incentive increases total amount of litigation (wait until D loses and then sue) When def loses, other Ps can use judgment against D, but when D wins, he still has to litigate for all other Ps Unfair where def didn’t have incentive to try hard in an earlier litigation or had procedural disadvantages in 1st but

not 2nd trial—forever precluded from defending myself General rule: unfair to apply offensive estoppel where P could have easily joined in earlier action

o Non-mutual defensive collateral estoppel: defendant raises issue preclusion on plaintiff from relitigating an issue previously decided against the plaintiff; stops plaintiff from relitigating identical issues by switching defendants

Plaintiff has strong incentive to join all potential defendants • What are the values of preclusion?

o Relieves cost and burden of multiple trials, saving judicial resources o Prevents inconsistent decisions; hard to say whether second iteration is better or worse o Encourages reliance on adjudication o Plaintiff is master of own complaint (Temple) but no flexibility when suing one defendant (Rush) o Have to bring up before discovery; if repeat issue comes up in course of discovery, can’t raise preclusion in middle of case

• Types of relief: declarative (court defines the rights and duties of the parties), specific (order directing conduct), compensatory (defendant pays plaintiff a sum of $)

o How much of the remedy will be consumed by the cost of the litigation? • Appeal: a judge/jury’s finding of facts can’t be overruled unless clearly erroneous; can only rule we should have never sent the

case to the jury; o Common law/canon: a judge’s legal conclusions are reviewable but not the facts upon which he bases the conclusion o FRCP 52(a): a trial judge’s findings of fact are not to be disturbed unless clearly erroneous and reviewing ct must give due

regard to trial court’s opportunity to judge the witnesses’ credibility

APPEALS

RECOVERY

o ß1291: courts of appeals have juris over appeals from all final decisions of dist cts except where direct review in Sup Ct o ß1292: appellate cts have jurisdiction over injunctions, receiverships, admiralty cases…. o ß1292(B): district judge must state in written order when order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that immediate appeal may materially advance termination of litigation; appellate ct may permit an appeal if application made w/in 10 days of order.

o 56(d)(2): an interlocutory sum jdgmt may be rendered on liability alone even if there is a genuine issue re damages o 54(b): court can only direct final judgment of one or more claim in a multiple-‐claim suit if it expressly determines that

there’s no just reason for delay; otherwise, no final judgment until all claims are fully adjudicated. o ß1651(a): Supreme Ct and fed cts can issue writs necessary to help in juris and agreeable to usages and principles of law o ß1652: federal law, except where Constitution or Congress otherwise requires, shall be regarded as rules of decision in

civil actions in US in cases where they may apply How close to P’s burden can evidence be such that reasonable juror could find in their favor? • Requirements for issues subject to review

o Appears in trial record o Properly objected to o Not harmless error o Brought to court’s attention in pleading along with court record

• What adjudicatory values does the final judgment rule promote?

o Appellate courts rarely re-‐examine questions of fact; can only appear judgments and orders in the course of litigation that are deemed so important that immediate review is needed; absence of interlocutory appeals will strengthen the hand of the trial judge who will have wider discretion as any review of judgment will be on final judgment and not interlocutory rulings

o avoids unnecessary delays, cost, harassment of adversary, impractical to hear all appeals during case; many exceptions o Most cases don’t have reversible error; consequences serious when a judge’s mistake forces litigants to pay to do whole

thing again o NY makes final and interlocutory orders appealable as long as involves some part of the merits or affect a substantial right.

“Facts” takes facts found by jury to be true unless clearly erroneous; deferential standard of review because we trust the expertise of the judge listening to the facts

Appeals-----------------Trial court

“Law” Did the judge apply the rule of law correctly? Review standard of law de novo; specialty of appellate judges is to apply the law so they don’t need to defer to the trial court

0 50 100 Directed against weight no reasonable juror verdict of evidence could find against P

50

• Replevina court may require a defendant to return specific goods to the plaintiff at the outset of the action (i.e. before judgment) • Respondent/Appellee/defendant in error opposing party in an appeal or defendant • Petitioner/Appellant/Plaintiff/plaintiff in error a person who pleads with governmental institution for a legal remedy or a redress of

grievances

1. Why wouldn’t all states adopt long-arms that extend their power to the constitutional limits? (9/20) a. Race to the bottom concern b. Maybe states don’t want jurisdiction over everything, flood system c. Inertia: stick with the statutes they had already

2. What’s the difference between federal and state courts? (9/20, 10/11 Mas) a. Can only transfer to diff venue if you’re in a fed ct b. Jury from slightly wider pool c. Judge in fed ct will have more expertise on federal questions d. Fed cts better for defendants and state courts better for plaintiffs maybe?

3. Who will decision help in long-run, the big guy or the little guy? (9/20 Burger King) a. Plaintiff friendly when plaintiffs are typically individuals and not big corporations

4. Impact of civil procedure on international relations (9/25, 9/26 Asahi, 9/27 Bremen) a. Forum non conveniens (Asahi)

5. Why file suit for small change? (not that much $) (9/25 Snowney, 9/26 Shaffer v. Heitner) a. Security class actions b. Ionic Breeze c. Private attorneys generals—behavior modification of companies

6. Why might people still use quasi-in-rem after Shaffer v. Heitner? (9/27) a. If you think they’ll lose/destroy property before it ends

7. Why doesn’t owning property in state nec establish min contacts? (9/26-27) a. Still need min contacts over property owner if the claim isn’t about the rem itself b. Can’t pretend that claim against property isn’t also a claim against property owner

8. What can/can’t people consent around & why (personal juris)? a. Why can you waive personal jurisdiction and venue but not smj? b. SMJ is in constitution, PJ and Venue are statutory over non-state defendants

9. Why not more regulation instead of adversarial process? (10/3) a. Private attorney generals b. Takes a long time to get regulation c. Fees for attorneys; can increase chance you get more cases

VOCABULARY

POLICY QUESTIONS

10. When is our system not adversary? More adversarial even in discovery (11/14 Hickman) a. In theory, discovery is supposed to be equalizer. Information asymmetry reducer.

o Can overwhelm people with electronic data o Partly depends on how smart lawyer is which isn’t discoverable o Sanctions under rule 32 for not complying in discovery, can have case dismissed

b. Langbein 11. What if system is never wrong or only once a yr, do we still need pre-term’n hearing in Goldberg? (10/4)

a. Risk of error b. What are the values (supp article by Mashaw)

12. Search warrants are 1-sided w/o notice, why not attachments? (10/10 Doehr, Fuentes p. 226, 10/11) a. What incentives of plaintiff to destroy property?

13. Is purpose of bond to deter false claims or protect def? Does the ability of P to pay & amount they have to pay matter? (10/10 Doehr) 14. Pre-jmnt attachments (Mitchell) 15. Why do we need diversity jurisdiction? (10/11, 10/16)

a. Protect out of state defendant 16. Why is there not too much of a connection b/w purpose & rules of diversity jurisdiction? (10/16) 17. Why do we have federal question jurisdiction? (10/16)

a. Judges have expertise b. Consistent application of federal law across states c. Part of jurisdiction constitutionally granted d. Sympathy of judges towards federal law

18. Why do we only look at complaint for federal question? What else could we do? (10/16 Mottley) a. Defendant might not use fed question defense b. Would make everyone want to go to fed cts so you’d take away state sovereignity

19. Why can’t in-state def’s remove to federal ct? (10/16) a. No local bias; can remove on fed question

20. Why can’t removal go from federal to state ct? a. No statute to let you remove from fed to state b. No such thing as destroying diversity b/c you can use 42(b)

21. Diff b/w complaint & demurrer? (10/25 DioGuardi) 22. How much should you put in complaint? (10/25 Buffalo Creek)

a. Heighten pleading std for different values? Iqbal and Twombly. 23. Difference between Rules 14 & 19? (9/6)

a. 19 necessary parties b. 14 indemnify

24. How legal realism impacts judicial decision-making? (9/12 Lavender)

25. Legal fiction of Rules 50a&b not re-examining jury decision (9/12 Lavender) a. Not that jury made a bad decision, but that we shouldn’t have given case to jury

26. Def turned plaintiff for declaratory relief (9/27 Beacon) a. Sue someone first! And in Hooters.

27. Diff b/w legal claims & equitable claims a. Legal: jury unless waive

28. Why would someone want a jury or not? (11/27 Beacon, Terry) a. If you’re the plaintiff b. If you’re a defendant if you think you’re really innocent

29. In preclusion why do/don’t we care if parties are mutual or not? (12/5) a. One-sided preclusiveness b. Sideline sitting c. Probabilistic/game theory advantages of winning case being one out of many losers d. 2 days in court

30. Is it better for cts in same state to use same law & fed cts in diff states to have diff law or for fed cts to use same law while fed/state cts in same state use diff law?

31. How does ct’s vision of it’s role affect pleading req’s/12 b 6 motion? (Case, Pruitt) 9/11 a. Interpret 12(b)(6) narrowly or broadly?

32. Notice pleading vs writ pleading? Why is our notice the way it is? What is it?(10/4, 10/30) 33. Rules 21 & 42- why might you want same case w/diff trials? (11/1)

a. 21 misjoinder is never a reason for dismissal b. 42: sever cases in joinder that need to be

34. What does our discovery system tell us about our legal process/instns? (11/13) 35. How/where is discovery still adversarial? (11/13, 20) 36. How broad should discovery request be? (11/13) 37. Law vs equity (11/27) 38. Benefits of potential D running a reversal suit (11/27) 39. Summary jmnt as compared to demurrer?

a. Timing; sum jdgmt is after discovery, demurrer is before 40. Interlocutory appeal system vs final judgment appeal system? (11/29)

a. Want a final jdmt so no clogging system with pointless or excessive interlocutory appeals b. Interlocutory system so you don’t waste system when there’s a clear error. NY has this.

41. Does mutuality matter? (12/5)

SUPPLEMENTAL ARTICLES

Galanter. (R 482), “Why the ‘Haves’ Come Out Ahead” Overall: repeat player parties in the litigation process have advantages derived from a seemingly neutral system, by playing the rules. The most dramatic and effective method of reforming the imbalance comes from the attorney’s role in the system, by propagating change and restructuring the profession to provide better legal services to occasional litigants. Terminology – the players: RPs = repeat players, engaged in many similar litigations over time; usually larger organizations and corporations, insurance companies, etc.; stakes in the game are usually small. OSs = one-shotters, claimants with occasional recourse to the courts; smaller units; stakes represented are high relative to total worth Two ends of a spectrum rather than a dichotomous pair Differences between how each uses the judicial system: RPs’ advantages

• Advance intelligence – can build a record and structure the next transaction • Develop expertise and have ready access to specialists • Develop relationships with institutional incumbents (judges, etc.) • Can bargain better because of established reputation • RPs can play the odds – maximizing gains in the long run by making small sacrifices here and there (tobacco companies) • RPs play for rules as well as gains: help to develop new rules, since statutes come from legislators lobbied by big interests • RPs play for rules within the litigation (the ACLU searching for the “right” case to help establish a new legal rule) – and can concentrate

on rules that will make a tangible difference • Larger resources available to invest in the process • Essentially RPs are able, through these devices and advantages, to work a facially and formally neutral judicial system to their own

advantage. Types of litigation: most often, P/RP vs. D/OS (with the notable exceptions of personal injury cases, and divorce cases). Almost always favor the RP.

• Even OS v. RP tend to favor RP, simply because RP watches the law applied – sacrifice now = gain later • RP v. RP – usually avoided by bilateral contracts • Other aspects of the system (besides the parties)

• Introducing lawyers into the playing field may seem initially to even things out a bit, but for many reasons lawyers are attracted to RPs, further enhancing their advantageous positions.

• Institutional facilities are reactive rather than active; so often don’t take a crucial role in ameliorating the imbalance. Moreover, case overload in courts pressures claimants to settle rather than to litigate.

• The rules in play – typically thought of to be traditional, but even so, RPs get to know how to use them, and even change them.

Strategies for reform – improving the strategic position of OSs

• Aggregation into groups, which may become RPs, in terms of unions or interest-group sponsors (like the ACLU) • Can enhance to weight of suits by aggregating claims • Greater ability to change rules, but also to see rule changes implemented • “Public-interest” law: class action suits, community organization, test-case strategies

The role of lawyers – since changing the rules and reliance on the insulated court system will likely not change much between the parties who litigate, the legal profession can (and should):

• Lawyers can help change rules relating to organization, increasing the supply and availability of legal services, and increasing the costs to opponents (in terms of awards of legal fees and costs, and provisional remedies)

• Dependent upon the organization and culture of the legal profession. Focus should not be as courtroom advocates, but rather as client advocates and ensuring an equal system for all comers. Ironically though, legal professions aligning themselves with the “haves” are more likely to be able to become agents of change, because there’s more license for identification with clients and their causes, and a less strict definition of “what lawyers do.”

Documents

Subject Matter Jurisdiction? Art III generally, statute