Civil Procedure (plaintiff ∏ / defendant ∆ / contract K)Personal Jurisdiction – people over whom court is permitted to exercise control – in US – limited to transactions that in some way connect to the state’s territory← The factors the court must balance in addressing reasonableness in an analysis of personal jurisdiction are: ← (1) the extent of a ∆’s purposeful interjection in the forum state;← (2) the burden on the ∆ in defending in the forum;← (3) the extent of conflict with the sovereignty of the ∆’s state;← (4) the forum state’s interest in adjudicating the dispute;← (5) the most efficient judicial resolution of the controversy;← (6) the importance of the forum to the ∏’s interest in convenient and effective relief; and← (7) the existence of an alternative forum.For a court to have authority, there must be:1. Personal jurisdiction (where service is necessary to establish)2. Reasonable notice3. Opportunity to be heard←

A. Personal Jurisdiction= the territorial reach of a court (state or federal) granting authority to make determinations that are binding on particular parties* service is the means by which a state “perfects” its jurisdiction/authority over an individual.

B. Limitations on Personal Jurisdictiona. Constitutional

i. Due Process Clause of the 14th Amendment provides “no state shall deprive any person of life, liberty or property without due process of law” – right to sue is matter of life, liberty, property (extension of fifth amendment: nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.).

1. Fair and reasonable jurisdiction based on the ∆’s contact with the forum

2. Appropriate notice and opportunity to be heard3. Identical to requirements of Full Faith and Credit Clause

ii. Full Faith and Credit Clause – Article IV, Section 1- requires a federal court (or another state’s court) to enforce a lower court judgment so long as the court had jurisdiction to rule and the ruling was valid – States must honor other state courts’ rulings (unless they can find a legal reason not to!)

b. Statutory i. Long arm statutes are used to exercise jurisdiction outside of a state’s

bordersii. This legislation is bound by the constitutional limitations but does not have to

go to its full extent (Many state courts will extend reach to limits to gain personal jurisdiction; conversely Federal Courts tend to narrow their constitutional parameters – they do not want more cases on the docket, nor do they want to be seen as infringing on the state courts’ rights/powers.)

iii. Note: CA statute on p.140 grants up to the limit which Constitution allows (West Va. Too??) Rhode Island

c. Federal Courti. Federal court has personal jurisdiction only if the state in which it sits does

Federal Rule 4(k)(1)(A) ii. Service of process is affective to establish personal jurisdiction over ∆ if: (any

element1. Courts of state in which the federal court sits has personal jurisdiction2. Over an impleaded party that is served within 100 miles of the

courthouse3. Over parties subject to interpleader jurisdiction4. Authorized by a federal statute for a particular case - Some statutes

allow for nation-wide service of process - securities5. In a federal question case with sufficient U.S. contacts but not

sufficient contacts with any state Rule 4(k)(2)

C. Personal Jurisdiction is a two part analysisa. Has a statute been satisfied? Weisburd will provide state(s)b. If so, is due process satisfied? Constitutional Analysis : see following sections!

D. Three Kinds/Aspects of Personal Jurisdictiona. In personam = jurisdiction over a person

i. For personal obligation to pay money or perform an act : State’s attempt to claim authority to adjudicate against a non-res for some reason – contacts, tort in state, tort arising from activities in the state, property owned in state, service made in state – LOTS of ways to try to get in personam jurisdiction

ii. Judgment can be enforced by attaching and selling property or ordering some act to be performed

b. In rem = a court has a power over property; judgment is limited to the value of the property

i. Pure in rem = with respect to the whole world and within the physical borders of the jurisdiction (ie. condemnation). Litigation is centered on the property itself.

c. Quasi in rem i. Of the first type = the court has power over property, but only b/t two

litigantsii. Of the second type = suit does not have to do with the property itself;

instead land is attached to pay damages; judgment limited to the value of property: Pennoyer, Schaffer v. Heitner - Greyhound (Stocks),

E. Scope of Personal Jurisdictiona. General Jurisdiction = ∆ can be sued in the forum state despite the lack of

connection b/t the state and the action bringing forth the lawsuiti. Domicile in a forum state allows for general jurisdictionii. Presence (in-state service) allows for general jurisdiction – “tag jurisdiction”iii. Continuous and Systematic contacts allow for general jurisdiction – Shoe

b. Specific Jurisdiction = A court has power to hear only those claims arising from their contacts with the forum state

i. If ∆ has “minimum contacts” with a forum state, ∆ can be sued in that state1. BUT, ∆ can only be sued over claims relating to those contacts; hence

jurisdiction is specific – claim “arises from” incident(s)/action(s)

within the forum state or perhaps via commerce with the forum state.

F. A court can serve personal jurisdiction in two ways:a. Serve process anywhere within the stateb. Long arm statutes permit jurisdiction over individuals not within the state’s

boundaries, by reaching out of the state to call a nonresident ∆ back into the state to defend a lawsuit. These statutes are subject to the Constitution, and thus, one application of a statute may be Constitutional, while another application may not be.

i. Unlimited: A few states, such as CA, have long arm statutes that exercise personal jurisdiction to the maximal extent allowed by the Constitution.

ii. Limited / Specific: Most states authorize personal jurisdiction based on specific types of contacts with the forum state.

G. Ways to get Personal Jurisdictiona. Presence within the forum state (receive service there)

i. Individuals: general jurisdiction regardless of any contacts with the state at the time of the events giving rise to the suit or if the individual was transient

1. Burnham v Superior Court of CA – Out of State Divorce Case, p.113-124 (divorce suit; non-resident husband served within the state; general jurisdiction upheld)

ii. Partnerships – service of process on any partner confers jurisdiction over business itself, as partnership is seen as an aggregation of partners who form it

iii. Corporations1. Non-Transient corporations “consent” to jurisdiction if they have an

in-state agent for service of process in the statea. General or Specific Jurisdiction depending on court

2. EXCEPTION: Transient corporations are not subject to jurisdiction merely by service of process upon an executive officer temporarily within. (but See Shoe - continuous and systematic contacts – not REQUIRED for specific SMJ– Hess v. Paw Claims can arise from specific and LIMITED contact w/ the state) In Shoe – USSC recharacterized cases previously decided, like Hess – relabeled analysis

iv. Exceptions1. Service by Fraud or Force Invalid: Most courts will find service

invalid if PL brings DF into state by fraud or force2. Immunity of parties and witnesses: Most courts grant immunity to

non-residents in state for judicial proceedingv. Old Law: Pennoyer v. Neff – Oregon Land Sale Case, p.22-29 - No longer

good law!1. No state can exercise jurisdiction over persons or property outside its

borders2. Presence in the state is both sufficient and necessary for personal

jurisdictionb. Consent

i. Express Consent1. By K: Entering into choice of forum clause can consent in advance

a. Carnival Cruise Lines v. Shute – Selection Clause on Back of Ticket, p.97 – forum selection clause is sufficient consent –

Professor Kelly buying the car and refusing to complete the purchase b/c fine print required he submit to arbitration!)

b. Consent can override presence (Rule 12 (g) and (h)) (exam)2. By Appointment of Agent: Appointment of an agent in a particular

state to receive service in that state can suffice for jurisdiction. Non-resident corporations may be required to make such an appointment before doing business in that state

ii. Implied ConsentA state may provide a statute that by engaging in certain activity in the state, a nonresident thereby appoints a designated state official as an agent for service of process for proceedings arising out of that activity

a. Driving in the state – Hess v Pawloski – Nonresident Motorist Case, p.34-35

b. ∆ received benefits from driving on state’s roads and the state had an interest in hearing cases that had a state interest

c. ANY OTHER COMMON?? – Consent implied in fact – we think a person “actually” consents. Implied in law – being there is one’s “consent” – subject to the authority of the law - of that forum

2. Voluntary AppearanceConsent to jurisdiction may be by a voluntary appearance by contesting the case without challenging personal jurisdiction. (waiver)

a. Special Appearances (Outdated) – used to have to choose b/t contesting jurisdiction or the merits, but now you can show up and argue both

3. Failing to raise the defense of personal jurisdiction amounts to consent

4. Bringing a lawsuita. A ∏, upon a counterclaim by the ∆, cannot raise the defense of

lack of personal jurisdiction: CHOSE the forum (?)b. The act of being ∏ is consent to jurisdiction

c. Waiver- Rules 12(h) and 12(g)- if a ∆ doesn’t raise a lack of personal jurisdiction argument in the first piece of paper then it is assumed he waived personal jurisdiction

i. If you DO argue lack of personal jurisdiction, you can argue it at the same time that you make other defenses and not consent to personal jurisdiction.

d. Domicilei. Individual: the place of “his true, fixed, and permanent home and principal

establishment, and to which he had the intention of returning whenever he is absent from there”

ii. Corporation1. Domicile is place(s) of incorporation AND2. Its principal place of business determined by: Must explicitly state

both! (Randazzo)a. Where operations are far flung, principal place of business is

“sole nerve center” where officers direct, control, and coordinate all activities without regard to locale (Where decisions are made, not merely where meetings are held. Now seems to be ALWAYS “decision place”as opposed to mfg. location. Bright Lines) City of Winona

iii. Property within the state by itself insufficientMere presence of property, real(??) or intangible, within a state is insufficient to confer jurisdiction on a court absent independent contacts within the meaning of International Shoe, which would make acceptance constitutional.(Shaffer v Heitner – Greyhound Shareholder Case, p,98-110)

e. Minimum Contacts = Minimum contacts constitutionally exist if a court can establish (all elements):

i. Contacts that are of sufficient “Quantity and Nature” to support jurisdiction; the “Quantity and Nature” of contacts are evaluated measuring

1. Purposeful Availment with the forum (Hanson v. Dencklar – DE trust)

a. A ∆ must make a voluntary choice to have meaningful contacts with the forum before being expected to defend there

b. Purposeful availment is met when (at least one)i. Activities are conducted within the state: ∆ must

have (all elements) Foreseeability1. understood activities will “impact” the forum2. anticipated activities may lead to lawsuits3. Either

a. Taken advantage of the benefits and protection

b. Made contact by his own activityc. Solicited business (Shoe)

ii. Goods are placed in the Stream of Commerce (at least one)

1. Awareness of goods in forum (Two Rules)Courts have split on the issue of whether mere awareness that goods may end up in the forum are sufficient to establish purposeful availment (Asahi said not enough – Gray said enough)

a. Mere awareness sufficientSending goods into the stream of commerce, at least in substantial quantities, sufficient, regardless of awareness that goods will be sold in forum (knowledge is enough for purposeful availment)Asahi Metal Industry Co v Sup. Ct. of CA – Case said no, but Brennan argued yes in his dissentJapanese Tire Valve Maker Case, p.77-85

i. This is Brennan’s opinionii. Gray v. American Radiator p.45, 52, 54

fits under this b. Mere Awareness Insufficient

requires clear evidence that the ∆ sought to serve the market in forum (targeted), such as designing the product for the market in forum or advertising in forum. The maker both foresees and benefits from sale in forum, whether (1) it distributes them there directly or (2) simply takes advantage of the

fact that another entity conveniently does so in its place

i. This is O’Connor’s opinion (majority opinion)

2. Benefit economically from forumPurposeful availment may be established if its business is directly affected by the transactions occurring in the forum state, such that it enjoys the benefits from the laws of the state (but ? of amount v. %age of sales – would matter for general personal jurisdiction, but not specific.)(Gray v. American Radiator, p.45, 52, 54)

iii. Harmful effects directed toward stateActivities outside of the state that result in foreseeable harm in the state constitute purposeful availmentCalder v. Jones – National Enquirer Article Case (where writer and editor were from FL, but suit was brought in CA by CA citizen)

1. If an act is committed outside of the state with knowledge that it will cause harmful effects within the state, purposeful availment is sufficiently established for claims arising out of that act.

iv. Personal Jurisdiction and the Internet1. Revell v. Lidov – Online Defamation Case, p.129-

134a. Revell sues Lidov for defamation for a critical

article posted on Internet bulletin board b. Rule : An absent nonresident ∆ cannot be

subjected to personal jurisdiction in forum state where only activity with the state via internet message board is not directed of focused on the state, thus no reasonable expectation of being haled into crt there

2. The “Sliding Scale” Testa. Cases involving Internet activity=“sliding

scale” testi. Passive websites (such as the bulletin

board in Revell) on which owners merely post information are not sufficient 2 establish PJ

ii. Major issue w/ Zippo test: Almost no passive websites left – must now look at type of activity – question whether site targets or benefits from forum viewers or customers (General Jurisdiction)

iii. Active sites in which owners “reach out” through repeated online contacts might be enough to establish specific J

ii. Extent of Contacts: The scope of jurisdiction permissible depends on the extent of contacts (International Shoe Co. v. Washington – Shoe Co. Salesman Case, p.36-41)

Extent of Contact Jurisdiction

No Contact No Jurisdiction Casual/Isolated Contacts No Jurisdiction (WWVW(no

purposeful)/Asahi) Single, Specific Acts Specific Jurisdiction (Hess, Jones)

Continuous, but Limited Acts Specific Jurisdiction (Shoe, BK) Substantial Contacts General Jurisdiction

Domicile, doing significant business, present, owing property interests

1. General Jurisdiction: jurisdiction can be held in state for ∆ on any matter regardless of where the claim arose (if one of the below)

1. Consent2. Domicile 3. Presence (in-state service) 4. Substantial or pervasive contacts

i. Continuous and Systematicii. Helicopteros Nacionales v. Hall – Peruvian Pipeline Project

Case, p.85-92 (NOT general personal jurisdiction)1. The mere purchase of goods, even at regular

intervals, is not enough to establish general jurisdiction (Although Weisburd doesn’t find this convincing and thinks that there may be general pj if there are a ton of purchases)

2. Specific Jurisdiction: A court has power to hear only those claims arising from their contacts with the forum state

1. Single, Specific Contacti. Even brief contacts with the forum state may give rise to

personal jurisdiction with respect to suits arising out of those contacts. McGee v International Life Ins. Co. p.44 (TX life ins. co. sent single mailing to CA policy holder; claim arose out of policy)

ii. Tortious Act in the State: Hess v. Pavlowski (car accident)

2. Continuous but Limited Contactsi. Where circumstances establish a substantial and

continuing relationship with a forum state and indicate that there was a fair notice that a nonresident might be subject to suit in the forum state, the assertion of personal jurisdiction over the nonresident by the forum state does not offend due process; No physical presence in the state is needed

1. K significant toward creating continuing relationships and obligations with citizens of forum state

2. Choice of Law provision deciding the forum state’s law in dispute (can be applied in a different forum)

3. Payment Stream toward forum state (TX life ins.)4. Q to Ask: Should Franchisee reasonably

anticipate out-of-state litigation? (With corp forum!)

ii. Burger King v Rudzewicz – Franchise Case, p.64-76 (Michigan franchise breaches Florida Burger King K)

1. Foreseeability of being haled into court in the forum (∆ realizes (or should realize) his connection with that forum) WWVW (VW and Seaway did NOT) Conduct and connection with the forum state must be such to yield a reasonable anticipation of being haled into court there

a. (Keeton v Hustler– Hustler Mag Defamation Article)∆ could reasonably anticipate causing injury in every state in which the mag was sold, thus should reasonably anticipate being haled into court in each state

2. Foreseeable= predictable, not merely possible/extraordinary (WWVW)

3. EXCEPTION: Unilateral Act of ∏ is InsufficientUnilateral act of the ∏ in bringing a product to the forum or relocating in the forum is insufficient to establish requisite connection. (WWVW)

a. Relocating to forumUnilateral act of ∏ moving to forum doesn’t justify ∏’s assertion of jurisdiction even though unilateral act was foreseeable

i. Hanson v Denckla - Florida Trust, p.45 No personal jurisdiction because the trustee did not reach out to purposefully seek to do business with forum – Customer merely moved there

ii. Worldwide Volkswagen v Woodson (Seaway) iii. Fairness/Convenience iv. Jurisdiction must not offend “traditional notions of fairplay and

substantial justice” (International Shoe Shoe Co. v. Washington – Shoe Co. Salesman Case)

1. A court may prevent jurisdiction even with min. contacts, if so inconvenient. A court must consider ( all elements ) : Must follow up with constitutional analysis

2. Convenience analysis requires balancing the interests II, ∆, and forum

a. Inconvenience to ∆The forum must not be so grossly unfair that it would put ∆ at a severe disadvantage in the litigation

i. Asahi Metal Industry Co v Sup. Ct. of CA – Japanese Tire Valve Manufacturer Case - ∆ would have to transport evidence across ocean, in foreign language (translation of documents and individuals), foreign legal system, ∏’s interest was trivial, contribution claim, forum had little interest

ii. Forum Non Conveniens hard to prove unless a foreign ∆b. Forum State’s Interest (is a state citizen affected? Is state law

governing? Justice Neely wants the case.)c. ∏’s interest in obtaining relief – Justice Neely aims to

please)d. Shared interests of several states

i. Efficient Resolution of Controversiesii. Social Policies

H. Jurisdiction in In Rem & Quasi In Rema. Need Minimum Contacts for In Rem- Shaffer v. Heitner – Greyhound Shrhldr

Case, p.98-110i. Rule : Actions in rem and quasi-in rem are actions against a person’s interests

and require a showing of minimum contactsii. Having personal or real property within a state is a contact, but if that is the

only contact then it is only sufficient for specific jurisdiction (only actions concerning the property) (even if the judgment is limited to the in-state property)

1. Suggests that pure in rem and quasi in rem (type 1) are OK, since these actions are about the property

2. Quasi in rem (type 2) is problematic, since attachment of property is used to settle a judgment or compel an appearance (as in Shaffer)

iii. Shareholder’s Derivative Suit – a suit brought on behalf of a corporation by a shareholder

iv. Limited Appearance – D appears specially to contest the merits of the caseb. Quasi In Rem (Type 2) Lives – despite the Supreme Court’s ruling in Shaffer,

quasi in rem (type 2) might survive but is very rare:i. Must be minimum contacts. Because contacts sufficient to exercise in

personam jurisdiction under a long arm statute make it unnecessary to resort to quasi in rem jurisdiction, and given that in personam jurisdiction is preferable because it doesn’t limit the source of the remedy to DF’s in-state property, use is rare.

Notice and Opportunity to be HeardA. Notice

1. Accomplished through service of process:a. Service = the formal means by which the process is delivered to a ∆b. Process = consists of:

i. a summons directing ∆ to respond or appear in court on penalty of default and

ii. a complaint detailing the claims2. Constitutional Requirements (Due Process Clause)

a. Const. reqs. a statutory power to serve and the best service practical under the circmstncs

i. What one would do if really interested in getting something to a person

b. Mullane v. Central Hanover Bank and Trust Co. – Common Trust Case, p.143-149

i. Holding: Notice must be reasonably calculated to inform parties of the suit and give them an opportunity to be heard

ii. Actual notice not necessary iii. If the sending party is aware that service was never received and does

not act to attempt service, it is a violation of due process.iv. The right to notice and a hearing are waive-able personal rightsv. Notice by Publication (or Constructive Notice) – Almost ALWAYS no

good under this definition of constitutional standard, but Mullane indicates that there may be circumstances where service by publication is OK

c. Tighter standards with respect to posting notice on real property – if you know address, communicate by registered mail, do not post

d. Constitutional standard sets the minimum standards, but states can set more specific forms but not LESS specific

3. Statutory Requirementsa. State courts have rules that spell out in detail the mechanics and form in

giving notice (usually more strict than constitutional requirements, many adopt some version of Rule 4)

b. The service must be according to a constitutional statute (no smoke signals!)4. Rule 4 – Procedure for Service of Process – Satisfy State statue AND Due

Processa. Only applies in federal courtsb. 4(a) – Complaint must include name of court and parties, be directed to ∆,

state name and address of ∏’s attorney, state time within which ∆ must appear and defend, consequences for failure to appear (default judgment), signed by clerk and bear court’s seal

c. 4(b) – properly completed with signature and seald. 4(e) – Serving an Individual - – Satisfy State statue AND Due Process

i. Service can be accomplished through one of three options:a. Following state procedures for service of state where the fed

court sitsb. Following state procedure for service where process is being

servedc. Using federal procedures set forth under Rule 4

ii. Note: if serving process in VA for federal court proceeding in NC, can follow NC procedure, follow VA procedure, or use Rule 4 procedure

iii. Methods of Service - 4(e)(2)a. Personal service – walk up to ∆ and hand him both the summons

and complaint anywhere (unless using service to create personal jurisdiction, then must be served in forum state)

b. Substitute service – two requirements:i. Leave at individual’s dwelling or usual place of abode ii. Leave with someone of suitable age and discretion who

resides there (doorman, resident manager – ok; house guest - possibly)

iii. In National Dev. Co. v. Triad Holding Corp. (Second Home Notice Case, p.154-157), the court held that an individual can have more than one “dwelling house or usual place of abode” and can be served at any of these locations so long as there is sufficient indication of permanence and current dwelling therein (had ∆ not been actually living there at time, court does not know whether service would be upheld – Koshoggi case)

c. Service on ∆’s agent – leave with agent authorized by appointment or law to receive service of process for ∆

e. 4(h) – Serving a Corporationi. In a judicial district of the US:

a. In manner prescribed by Rule 4(e)(1) for serving individual state law, or

b. By delivering to an officer (president, secretary, etc.), a “managing or general agent” (someone with sufficient importance) of that corp, or any other agent authorized by appointment or law to receive service

ii. Not within any judicial district of the US: careful not to p.o. other country

a. In any manner prescribed under Rule 4(f) for serving an individual

f. 4(d) – Waiving Service of Processi. May use: if service would be cumbersome and would rather avoid

expense, can give ∆ opportunity to waive serviceii. Requirements: have to serve copy of complaint by first class mail, two

copies of waiver form, prepaid method of returning, indicate time to return answer

iii. ∆ has 30 days (60 if outside any U.S. judicial district) to respond to the waiver request

iv. 4(d)(2) – if ∆ fails to waive, expenses incurred for making service and attorney’s fees must be imposed on him

v. 4(d)(3) – For incentive to accept the waiver, ∆ doesn’t have to submit response of the complaint for 60 days (instead of 30 days) if they agree to the waiver 9extra 30 days for foreign D)

g. 4(k)(1)(A) – Where Service of Process Can Take Placei. Process can be served throughout the forum state, regardless of

districtii. Federal court can only reach out of the state if the state courts could

do that (long-arm statues)iii. Exceptions

a. Bulge Rule – 4(k)(1)(B) allows service absent a long-arm statute within 100 miles of the courthouse where summons was issued; only applies to parties joined under Rules 14 or 19

b. Additional Jurisdiction – may be provided under federal statute – 4(k)(1)(c)

h. 4(m) – When Service of Process is Allowedi. Last possible day is 120th day after complaint is filed

a. If you did not file until the last day of SOL and have “good cause”, last possible day for service would be 120 days later

b. Important: A few states require that summons and complaint be served within SOL period, so if he files complaint on the last day, service must occur on that day as well

i. Rule 60(b)(1) claims that a judgment (DEFAULT?) may be reopened if it can be shown that a party did not actually receive notice

5. Immunitya. State and fed courts recognize common law and statutory immunity from

service under certain circumstances:i. Witnesses in one suit may be immune from process for other suitsii. Immunity granted if one is induced to enter the state through fraud or

deceitiii. Some states prohibit service on Sunday (Connecticut – but only b/4

sundown)b. Creative service – as part of flower delivery, in wedding receiving line, etc.c. Sewer service – certifying service when it was not really done

B.

B. Opportunity to be Heard1. Required by Due Process Clause of the 5th and 14th Amendment2. Formal trial is not required – less formal procedures ok (hearings – chance to reply /

appeal)3. Exceptions:

a. Repossessioni. Where there is clear documentation and risk losing item (ie. ∆ could

report it “stolen” – i.e. hide it) if you do not act, a hearing is not required first

ii. Ex. repossession of TViii. Requirements: post bond, prove to judge need for repossession w/o

hearing, immediate right to hearing following seizure, burden of proof on seizer.

b. Provisional relief – injunction to prevent permanent / irreparable damagei. Provisional relief - before a permanent decision on the merits, provides

some instant relief for ∏ (ie from cutting trees, building on disputed property)

ii. Posting of security, though it seems to be required under Rule 65(c), has been interpreted by courts not to be req’ed when there is no risk of $$ loss to the ∆ OR when there is a risk of loss but the case advances important public policy

iii. Temporary restraining order (TRO) – available where party demonstrates irreparable harm if not granted – potential for violence

o Must show likely success of cmplnt (tendency to be more forgiving is potential harm great – recent efforts to “reign in” this tendency)

o ∏ must show he has attempted to inform D, or TRO will not be granted ex parte (Can be if D is informed but does not show)

o ∏ must post a bond.If ∆ wins and is done monetary harm via the TRO

o Within 10 days, must show for a hearing; can then get a preliminary injunction to last until resolution.

iv. Connecticut v. Doehr – Attachment for Assault Casea. Rule: prejudgment attachment of real estate without notice or a

hearing violates due process unless in extreme circumstances.

b. Garnishment of wages will typically not work – MUST notifyv. Matthews standard – 3 factor test: (Matthews v. Eldridge)

a. How significant is private interest that would be affected against person

b. How likely that mistake will be made and how helpful it would be to add other procedures to avoid mistake

c. the probable value of additional or alternative safeguards; andd. Interest in property of party who wants seizure to take place

Subject Matter Jurisdiction A. Introduction

a. Subject matter jurisdiction = independent of PJ; to protect political and societal interests, not an individual

b. Possible jurisdiction:a. Limited subject matter jurisdiction – federal district courts (can only hear certain

types of cases as prescribed by Constitution and federal statutes)b. General subject matter jurisdiction – trial courts of each state collectively hold

general subject matter jurisdiction (any case unless forbidden)c. Concurrent subject matter jurisdiction – frequently state and federal where case

satisfies requirements of bothd. Exclusive jurisdiction – where Congress has specifically given federal courts

exclusive jurisdiction over particular issues (Securities, interstate commerce, admiralty)

B. State Courtsa. General Subject Matter Jurisdictionb. States are free to divide subject matter jurisdiction among whatever courts they

establishc. Within each state, some court should be able to hear case except where Congress

gives the federal courts exclusive jurisdictionC. Federal Courts and Limited Subject Matter Jurisdiction

a. Source of Authority - US Constitution, Article III i. Section 1 – “The judicial Power of the United States shall be vested in one

Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

ii. Section 2 – “The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority”

1. Cases involving constitutional issues, federal statutes, treaties2. Cases affecting ambassadors, ministers, and consuls3. Admiralty cases4. Cases where US is a party5. Cases b/t two states6. Cases b/t a state and citizens of another state7. Cases b/t citizens of different states8. Cases b/t citizens of the same state claiming land under grant of

different state(s) 9. Cases b/t a state or citizens of, and foreign states, citizens, or subjects

b. 28 U.S.C. § 1257(a) - certiorarii. Supreme Court can review final judgments by highest court of a state where:

1. Validity of US treaty or statute is in question2. Validity of state statute is in question due to potential violation of

Constitution, treaties or federal statutes of US3. Right claimed under Constitution, treaties, federal statutes or

commissions of USc. Establishing Subject Matter Jurisdiction

i. Parties cannot consent to jurisdictionii. Defense of jurisdiction is never waived

1. If federal jurisdictional problem is not discovered until after SOL has run to initiate state action, ∏ may be without remedy

iii. Presumption against federal jurisdiction – ∏ must plead that jurisdiction exists (Federal Form 7 on p.138 of Rule Book demonstrates how to be pleaded) burden on P to demonstrate that jurisdiction exists.

d. Diversity of Citizenship and Alienage Jurisdiction (restatement of black-letter law on p.185)

i. Alienage is not controversial due to underlying reasons ii. Diversity jurisdiction changes the judge that applies but not law appliediii. Statutory authority: 28 U.S.C. § 1332 – Diversity of Citizenship

1. (a) original jurisdiction where amount in controversy exceeds sum of $75,000, exclusive of costs and interest, and it b/t

a. Citizens of different statesb. Citizens of a state and citizens of a foreign statec. Citizens of different state and in which citizens or subject of a

foreign state are additional partiesd. Π is foreign state and citizens of a state or different statese. Alien admitted to US for perm residence is citizen of st in which

domiciledNOTE: Not covered: American citizen that is not a citizen of any state or American citizen that is domiciled in another country

2. (b) Where judged that ∏ who filed case is entitled to less than $75,000 court may deny costs and may impose costs on ∏a. Note that all unrelated claims of one ∏ against one ∆ can be

lumped together to reach the $75,000 minimum; not available where there are two SEPARATE claims against two ∆sConstitution satisfied by minimal diversity, but section 1332 requires complete diversity – ∏ can lump all claims against one D, can lump to satisfy AinC. Not two claims against two D’s – but Allopata has put in doubt. (Single claim can have more than one owner – house that burns. Suits in equity – courts ask, How

much will the relief cost the D or mean to the P – IF either makes the AinC, ∏ is OK. (c)(2) Legal representative of estate of a decedent, infant, or incompetent is deemed citizen of same state of decedent, infant, or incompetent

3. (d) Class action info (SEE STATUTES)a. Does not affect requirements for personal jurisdiction

4. NOTE: cases with domestic relations and probate are excluded diversity citizshp

iv. Complete diversity rule – established by Strawbridge v. Curtiss in 1806; held that diversity jurisdiction only exists if all ∏ are of diverse citizenship from all ∆s (§ 1332 interpretation : minimal diversity is ok under Constitution)

v. Determining Citizenship1. Domicile determines citizenship

a. At birth – determined by that of your motherb. As a minor – stays same unless parents movec. Acquiring new domicile requires:

i. Physical presence in locationii. Intention to stay

d. Mental state and physical presence must coincidee. Determined at time of filingf. If representative is filing, look to person matter deals with

2. Mas v. Perry – Two-Way Mirror Case, p.184-187a. Previous domicile is your domicile until you acquire a new

domicile (not when you leave, travel, etc.)b. Domicile of woman is not changed by marriage to alienc. Federal jurisdiction is not lost where damages awarded ends up

being less than required amount in controversy so long as amount in controversy pleaded is in line with requirement (unless not to legal cert)

d. Rare case (not case here): individual has no status; American citizen living abroad has no domicile in US

3. Randazzo v. Eagle Picher Industries, Inc. – Moron Counsel Case, 191-193

a. Must allege explicitly tracking the language of the statute the ground for jurisdiction, and if not done properly, the court must dismiss the case

b. Dismissed with prejudice for counsel’s failure to properly determine and explicitly state the “domicile/citizenship”

4. Corporation Domicilea. Under § 1332(c)(1), corporation is citizen of state in which:

i. Incorporated, ANDii. Where principal place of business iniii. J.A. Olson Co. v. City of Winona – Total Activity Test,

p.194-198 SUPERSEDED by Hertz Corp - “best read as place where corporations officers direct/decide (“direct, control and coordinate”) – nerve center – of the corporation (not merely an office where the officers hold meetings.)

iv. Principal place of business is determined by:

1. Operations are far flung, principal place of business is “sole nerve center” where officers direct, control, and coordinate all activities without regard to locale

2. Operations in one state and executive offices in another, principal place of business is place of activity except when activity is passive and the “brain” in another state

v. Preference to place where physical presence is most significant

vi. Criticism: some corps may have more than one nerve center

b. Non-incorporated Businesses (partnership / LLC)i. Citizenship includes citizenship of each of its members

vi. 28 U.S.C. § 1359 – No jurisd where parties are joined improperly to invoke jurisdiction

vii. 28 U.S.C. § 1335 – Interpleader1. District courts shall have original jurisdiction of interpleader actions for

$500 or more if (1) two or more claimants of diverse citizenship claim AND (2) ∏ deposited money or bond into registry of court

2. Minimal diversity – under the Federal Interpleader Act and the Multiparty, Multiforum Trial Jurisdiction Act, allows for jurisdiction under diversity of citizenship where ONE adverse claimant is of diverse citizenship

3. Statutory almost ALWAYS preferable to Rule Interpleader

D. Federal Question Jurisdiction - §1331i. Source of Authority

1. Authority granted under US Constitution, Article III §§ 1-2 – see above2. Actions against foreign states: 28 U.S.C. § 1330 3. 28 U.S.C. § 1331 – Federal question

a. Provides original jurisdiction for all actions arising under the Constitution, laws, or treaties of the US

ii. Louisville & Nashville Railroad Co. v. Motley – Reversed Railroad Pass Case, p.211-213

1. Well-Pleaded Complaint Rule: A proper complaint must set forth only a claim -not anticipated defenses or extraneous material which, if present, will not be considered as part of claim and will not allow federal subject matter jurisdiction based on that alone (Is ∏’s claim for relief based on Fed Stat?)

2. If claim is in no sense fed, does not matter that fed law will arise in the ∆se

3. Federal aspect must appear on face of complaint (nec. but not sufficient)

4. Distinguish from: Under 28 U.S.C. §§ 1256-1257, if a federal issue comes into court, even if not by valid means, the Supreme Court CAN address the issue

5. Declaratory judgment = dec from a judge on issue outside of a case; cannot extend further than JD – so only if the ct would have authority to hear the action

a. Dec judgment can be in federal court regardless of which party brings it

iii. Centrality of Federal Issue 1. To invoke federal question JD, issues must be part of a well-pleaded

complaint AND must also be a sufficiently central part of the dispute to justify jurisdiction

2. Supreme Ct held that where it appears that right to relief depends upon construction or application of the Constitution or laws of the US, JD exists

3. Where no private right of action is created: Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing – Insufficient Seizure Case, p.220-226

a. To determine whether claim can be brought under federal statute without explicit creation of private right of action:

1) Does state claim “necessarily raise (dep. upon) a federal issue?” 2) FEDERAL ISSUE actually disputed?3) FEDERAL ISSUE substantial?4) Will hearing the case in federal court “upset any balance of state v. fed judicial responsibilities” b/t state and fed cts?

Does the fed law need interpreting?? Or merely applying to a new fact set.

b. No requirement generally that provision of federal law must create a private right of action

c. Two ways federal statute can create private right:i. Language in statute providesii. Court recognizes that statute implicitly creates

4. USSC said that although there was no expressed language of a private right of action in this fed state (nor implied) the court DID have SMJ: The case “clearly turned” upon fed law. (USSC said fed court DID have SMJ under 1331. USSC can always under 1252 grant certiorari to appeals from state court)

5. Look in notes – KC Title and Trust Bank – good law - BAD Merrell Dow decision!! Grable was important as it cleared up the mess made by MD!)

6. * This is a way to see if an exception can be made when a Fed Q is NOT on the face of a P’s claim

But after Grable – HOW does the court apply these tests to a different fact set? - Especially problematic would be an important issue never addressed and needing clarification, BUT in a situation that, if heard in fed court – would invite MANY more cases into federal fora.

E. Supplemental Jurisdiction - §1367a. Discussed with joinder – occasions when case in federal court with jurisdiction

awards supplemental jurisdiction to separate claim that would not have jurisdiction on its own

F. Removal Jurisdictiona. Removal jurisdiction = where a case brought originally in state court can

be removed to federal court – ∆ initiatesb. Removable to federal district court in which state court originally filed in

sits

c. 28 U.S.C. § 1441 – Actions removable generallyi. (a) Provides removal from any state court to the district court for that division

by ∆ or ∆sii. (b) Provides removal from state court for any claim or right arising under

Constitution, treaties or laws of the US w/o regard to citizenship of parties; any other action removable only if none of ∆s is citizen of state in which action is brought (WWVW)

d. 28 U.S.C. § 1446 – Procedure for removali. ∆ files signed notice of removal in district court containing statement of

grounds and copies of documents served on ∆ within 30 days after receipt of initial pleading or service of summons (or amended pleading if case in original pleading is nonremovable), provide written notice to all parties, and file notice with state court where action was commenced

1. Though not stated, courts have upheld that all ∆s must sign

Claim that starts in state court that could have been brought in fed ct. MAY be removed to Fed court by D’d IF no D is citizen of the forum state. All ∆s must join the petition to remove.

1446 and 1447 – procedural requirements – petition for removal must be filed w/in 30 days of the first complaint indicating that removal is available. P can, for example, amend to add another D that is diverse. Will D2 lose the right to remove? No…if D2 wants to remove, he has 30 days but must get D1 to remove. (There is a flat prohibition against removal beyond one year after the case was first filed) – In WWVW – when the non-diverse Ds were removed – the case could no longer be removed b/c of this deadline.

e. 28 U.S.C. § 1447 – Procedure after removal generallyi. District court issues orders and process to bring parties before court which

may require removing party to file all pertinent documents with clerkii. Motion to remand other than for lack of subject matter jurisdiction

(b/c court can always address SMJ sua sponte) must be made within 30 days after filing notice of removal, if remanded, may require costs to be paid; can be remanded for lack of subject matter jurisdiction at any time

iii. Order to remand not reviewable on appeal unless under 1443 grounds (civil rights case)

iv. Court may deny joinder of additional ∆s if it would destroy Fed. subject matter jurisdiction; can permit and remand to state

f. Circumstances may change and allow case to be removed after initial 30 days - cannot remove if case has been in court for 12+ months even if diversity is just satisfied

g. If ∏ elects to drop non-diverse party (and not court who drops claim against party), case can be removed

h. Not available to local ∆ who wants to remove from state court to federal court

i. 1441 – 1446 – 1447 – “play with them”Venue

A. State Venue Provisionsa. Each state has venue statutes

b. Local actions = actions involving land

i. Must state statutes say that venue is where land is located

j. Three Types (all involve notion

ii. of who has title):

1. In rem or quasi in rem cases in which real property is the basis of jurisdiction

2. Cases in which the ∏ seeks a remedy in or to realty, such as a claim for quiet title, ejectment, foreclosure of a mortgage, enforcement or removal of a lien

3. Claims for damages for injury to land, such as trespassiii. Precedent indicated that in personam actions for damages to realty were

local actionsc. Transitory actions = any case that is not a local actiond. Sample provision – Maryland state venue statute (p.240-243)

B. Venue in Federal Court - §1391a. Not judged by courts to be as important (ie. if ∆ appeals that venue was improper,

court is unlikely to grant retrial – not so for personal jurisdiction and subject matter jurisdiction)

b. Congress has divided US into 94 federal districts my mapc. 28 U.S.C. § 1391 – Venue statute

i. (a) Action founded on diversity of citizenship can be brought in district where (1) any ∆ resides if all ∆s are in state, (2) a substantial part of events giving rise to claim occurred or where property that is subject to action is located, or (3) any ∆ is subject to personal jurisdiction at time action is commenced if no other location to be brought

1. For purposes of statute, “residence” has been read to mean the same as it does under § 1331 (synonymous with domicile)

ii. (b) Action not founded on diversity of citizenship can be brought in a district where (1) any ∆ resides if all ∆s are in state, (2) a substantial part of events giving rise to claim occurred or where property that is subject to action is located, or (3) any ∆ may be found if no other location to be brought SAME? YES!!

iii. (c) FALLBACK - ∆ CORPORATION deemed to reside in judicial district where it is subject to PJ; if more than one in the state, ∆ residing in state will be deemed to reside in any district where contacts are sufficient to subject it to

PJ if district were a separate state; if no such district, will be deemed to reside in district with most significant contact

1. For corporations, personal jurisdiction equates to residence here2. could be a situation where there is PJ as to whole state but not to any

one districtiv. “Except as otherwise provided by law” – federal law may provide particular

venue provisions for certain actions (ie. cases involving collection of federal taxes)

v. (a)(3) and (b)(3) are “fall back” provisions – not many decisions related to their use

d. 28 U.S.C. § 1392 – if property is in different districts in same state, civil action involving property can be brought in any such districts

e. Bates v. C & S Adjusters, Inc. – Distressed Debtor Case, p.247-250i. Case arising under Fair Debt Collection Practices Act – Fed Statuteii. A ∏ with a federal jurisdiction claim can seek venue for his claim in a district

where “a substantial part of the events or omissions giving raise to the claim occurred” and where personal jurisdiction can be asserted over ∆ regardless of ∆’s intent to avail himself to court

1. More than one venue may be plausible2. Substantial = having substance3. Direct communication with judicial district does not have to occur (ie.

mailing letter to one place which is then forwarded to district chosen)iii. Note: by filing an answer, ∆ waived personal jurisdiction defense, but if they

had not, it is possible court would have found that personal jurisdiction was lacking

f. But 1391 (c) does get complicated: residency of corporation – wherever a corp would face PJ at the time the action commenced. (Corp might be seen as a resident of one lawsuit but not of another! – Corp would be subject to PJ where a truck driver employee had an accident even if not incorporated or having the nerve center in that state. – not synonymous with citizenship! Broadens PJ for corps in such a case and subjects them to more venues. IF only subject to specific jurisdiction in a state, then only subject to venue for claims arising from the specific circumstances. …see notes) Citizen AT TIME CLAIM is FILED –

g. Federal Venue – Case is removed to the fed court sitting in the district where the original state court sits. (PJ = STATE, but Fed Venue = district – 1391 is incomprehensible on this issue! Hard to say – initially yes, any district, but then have to do the contacts analysis, etc! Might be limited to district where specific events giving rise to the claim occurred.) great

C. Change of Venue - §1404 and §1406a. Transfer of Civil Cases in State Courts

i. Permitted where ∆ is unlikely to get a fair trialii. Order on a motion or sua sponte (judge acts without motion)iii. Occur within the state

b. Transfer of Civil Actions in Federal Courti. Federal Transfer Statutes

1. 28 U.S.C. § 1404 – where transferor court is proper SEE WEISBURD notes

a. Must be to a district where venue and jurisdiction are proper

b. Open to ∏s and ∆sc. Is not a dismissald. ∆ cannot consent to waiving jurisdiction – must be proper in new

venuee. Transferee applies law of transferor court

i. If federal question, will be the sameii. If diversity case, federal court applies whatever law would

be applied by state-level court of state in which it sitsiii. If involving more than one state, look at choice of law

rules for transferor court (complicated)f. (a) District CAN transfer to any other district where action may

have been brought “in the interest of justice” and for convenience of witnesses and parties (Gulf Oil v. Gilbert)

g. (b) By motion, consent, or stipulation of the parties, any action, suit, or proceeding can be transferred to another division in same district in the discretion of the court

h. (c) District court may order any action to be tried at any place in division which it is pending

2. 28 U.S.C. § 1406 – where transferor court is improper Goldlawr Transfera. District court SHALL dismiss or transfer case if in wrong venue to

new division or districtb. If objection to venue not raised in timely manner, jur. will not be

impairedc. Permissive – judge can choose to dismiss rather than transfer

(Bates v. C & S Adjusters, Inc. – Distressed Debtor Case)d. Even if personal jurisdiction is also incorrect in transferor court,

transfer under this statute IS PERMITTED.e. Law of transferor is irrelevant as venue was improper to begin

withii. forum non conveniens (FORUM NON) – Change of venue outside a

judicial system1. Can be invoked to decline case as a matter of discretion where despite

meeting venue, PJ, and SMJ requirements, the case has little connection to the forum

a. Example: Keeton v. Hustler Magazine could have invoked2. Available only to ∆s3. Dismissed in original forum and started again in new forum4. ∆ often waives certain defenses (lack of personal jurisdiction, SOL, etc.)

as part of forum non conveniens dismissal in event that ∏ re-files in new venue

5. Favored in federal court6. Solid argument that case is better litigated somewhere else. ONLY a ∆

is allowed to make a forum non motion. Basic Standard: Gulf Oil v. Gilbert p.256, footnote 6. See Piper notes in outline Gilbert test – Same KIND of inquiry when considering removal from one state to

another! Prerequisite is the availability of another valid forum (so P is not left without

remedy) – Shah case. (NY decided this case before Ashahi – Shah’s position may have violated Due Process – he would have been so tremendously disadvantaged)

7. Piper Aircraft Co. v. Reyno – Scottish Plane Passengers Case, p. 257-267

a. Forum nonconveniens dismissal is not automatically barred if new forum’s law will be less favorable – favorability of law not a relevant factor

b. Where an alternative forum does not give a remedy for harm which ∏ seeks, forum non conveniens cannot be applied

i. Some remedy (even very small) is still a remedyc. Balancing factors that should be considered and can allow court

to dismiss if there is an alternative forum and hosting in current forum would be either unfair to a ∆ proportional to convenience for ∏ or simply inappropriate given administrative and legal burdens

i. Public policy: local interest in having controversy decided at home, court congestion, interest in having “at home” for governing law, avoidance of unnecessary conflict of laws problems, unfairness of burdening citizens in an unrelated forum with jury duty

ii. Private interest: relative ease of access to sources of proof, availability of compulsory process for attendance, cost of obtaining witnesses, possibility to view premises

iii. GILBERT TEST (suggested – not complete list. EX: Ds in Piper added that they would like to bring third party claims – remedy of interpleader to bring in all parties potentially indemnifiable– against other Ds not subject to PJ in the US.)

The private factors are:1.     Relative ease of access to proof2.     Availability of witness subpoenas3.     Cost of getting witnesses4.     Possibility of view of premises if called for The public factors are:1.     Administrative difficulties flowing from court congestion2.     Local interest in having local controversies decided at “home”3.     Forum familiarity with substantive law – problem/burden of court applying foreign law.4.     Unfairness of burdening citizens with jury duty for case unrelated to forum

Court of Appeals had refused b/c Scottish Law less favorable to ∏s! USSC said the “favorability” of law was not dispositive/not relevant ONLY care of this type: ∏would have to be left with NO forum PAGE 265: Often – ∏s get ∆s to agree to American discovery rules – to get evidence from ∆s themselves! DEALS are made…The real parties of interest in Reyno not Americans – court says Am law not designed for foreign ∏s get bigger awards frm Am. co.s!!

Extra Venue Notes

← §1404 transfer – from PROPER venue – so the transfer of Piper was a 1404 transfer and brought CA law.← §1406 transfer – from an IMPROPER venue – CA had no PJ over Hartzell, so improper (proper remove) in CA(so can’t use 1404) ; therefore the transferee court (PA) would have to apply Pennsylvania law. !!What a mess for the PA court!! Then what if the court decides that the Scottish law will govern? Then why not let Scottish courts apply Scottish law? What is the court determines under CA choice of law rules dictate that one ∆ gets CA law and the other gets Scottish law…and these to be administered by a PA judge. SERIOUSLY? The Gilbert test is precisely to help avoid this mess! Actual outcome – PA ct. would need to apply PA law to Piper and Scottish law to Hartzell.

← 1404 and 1406 – Fed court to a different fed court TRANSFER. Not a dismissal and re-do. (available to ∏ and ∆) §1404 - Only where the case could have originally been brought (“might have originally been brought” = where PJ and Venue would have been proper)

∆ can consent to “improper” venue or PJ, HOWEVER – ∆’s consent is irrelevant in case of a venue transfer (This is to avoid/prevent a ∆ from forum shopping)

§1406 a court without PJ CAN transfer to a proper venue – (or else the ∏ is totally screwed.) This is why we seldom see a dismissal. (Only exception is when ∏ has been underhanded in bringing the suit in the particular forum chosen.) (the Ferens case; Choice of law - per Van Dusen case - (MS law) comes with the case)

Forum selection clauses – some states disfavor – In FEDERAL court – such a clause gets “weighted”/considered, but is NOT dispositive (And any state law on this topic is “simply irrelevant.”)

d. Home forum given greater deferencee. Allowable: in plane crash occurring off NY shores, French citizens

litigated in NY courts with US citizens against plane companyiii. Choice of forum clauses

1. Often found in business Ks2. In a few states they are void, but most states apply3. In US District Court, federal authority has been acknowledged –

typically do not ignore but are not required to defer to the clauseiv. Choice of law

1. Allows for application of one state’s law in a courtroom of another district

2. Federal court should apply the choice of law rules of the state in which it sits

3. If ∆ seeks a 1404(a) transfer, change of law is not appliedv. Multidistrict litigation

1. For mass torts, § 1407 permits all federal cases to be transferred to one district, consolidated for pretrial proceedings, and remanded for completion to transferor

2. Often, transferee will end up handling trial phase

What Law Applies in Federal Court – Choice of Law§ 1652 – Rules of Decision Act - ONLY FOR DIVERSITY CASES: federal courts must apply state law except where otherwise required by the United States Constitution, the laws of the United States, or treaties. Cases tried in federal court based on a federal question are decided by federal law. However, the issue of whether state or federal law applies in diversity cases may be less clear.

A. Determining What Law Appliesa. Horizontal choice of law problem – determine which of several states’ laws appliesb. Vertical choice of law problem – determine whether to apply federal or state lawc. Constitutional Provision

i. Article VI Supremacy Clause – makes federal law “the supreme law of the land”

d. Statutory Provisionsi. 28 U.S.C. § 1652 – Rules of Decision Act (originally passed in 1789)

1. The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply.

2. No difficulty in applying as it relates to state statutes3. In alienage or diversity case, apply law of state where court hearing

sits4. In federal question cases, relevant federal matter on law would control

but there may be important state laws relevant to resolving dispute5. Does not require use of state law on all matters

ii. 28 U.S.C. § 2071 – Rule-making power generally1. (a) USSC shall prescribe rules for the conduct of business, consistent

with 20722. (b) Any rule prescribed by court other than USSC shall be prescribed

only after giving appropriate public notice and opportunity for comment; shall affect pending proceedings

3. (c) Rule under (a) by any court other than Supreme Court shall remain in effect unless modified by Judicial Council (for district court) orJudicial Conference (for other courts)

4. (d) Copies of rules shall be furnished to Judicial Council (for district court rules) or Director of Administrative Office of US Courts (for all other courts)

5. (e) If an immediate need for a rule, court can proceed without public notice and opportunity for comment, but shall allow for both shortly thereafter

6. (f) No rule can be prescribed by district court other than under this section

iii. 28 U.S.C. § 2072 – Rules of procedure and evidence; power to prescribe1. (a) Supreme Court shall have power to prescribe general rules of

practice and procedure for cases in the US district courts (including those before magistrate judges) and courts of appeals

2. (b) Rules shall not abridge, enlarge, or modify any substantive right; all laws in conflict with such rules shall be of no further force or effect after such rules have taken effect

3. (c) Such rules may define when a ruling of a district court is final for purposes of appeal under §1291

e. Swift v. Tyson, p.534i. Held that Rules of Decision Act requires statutory laws of states and court-

made doctrine on local law to be used in all matters but federal court did not have to apply common law of states, even in diversity cases

f. Erie Railroad Co. v. Tompkins – The Erie Doctrine, p.535-540i. Where a man walking around railroad track was hit by a door protruding from

passing train, PA law (required a duty of not wantonly or willfully harming) would have favored ∆ RR and “general law” (imposing a stricter duty) would have favored ∏

ii. Under traditional approach, common law equals reason iii. Under Swift v. Tyson, “general law” (common law devised by federal courts)

would applyiv. Erie overturned Swift stating that it was unconstitutional to allow federal

judges to “make law” in an area where they had no authority to do so1. Erie forces confronting conflicting notions of law and justice

v. Supreme Court reinterprets § 34 as requiring federal court not only to defer to state statutes and constitutions but also to state common law

g. Hinderlider v. La Plata River Co. – Water Allocation Case, p.587i. Decided same day Erieii. Creation of federal law is Congress’s job – courts should only create law when

they have to decide case and no federal statute controlsiii. There is a category of federal common law for purposes of § 1331 that fills

the gap (provides rules in cases that court must decide but where nothing in Constitution or federal statute provides rule)

iv. Statutes always trump federal common lawh. Guaranty Trust Co. v. York – p.543, 546 state SoL

i. Doctrine of laches – in courts of equity, when there was no statute of limitations, required ∆ to show the prejudice/inequity of allowing ∏ to bring case after such delay

ii. Issue: whether in a diversity case in federal court, the federal court is required to apply the state statute of limitations

iii. Though statutes of limitations are procedural, if consequences of such state law would “so intimately affect recovery or non-recovery” than the federal court in a diversity case should apply state law (but any rule difference can affect the outcome!)

iv. Instances following where state law had to be applied:1. Ragan v. Merchants Transfer – must follow state law where π had filed complaint but not served process within SOL period and state law required both to occur within period: since there is no fed rule on point, we will use STATE LAW

2. Woods v. Interstate Realty Co. – state law requiring corporation to register under rules of incorporation to be able to sue upheld3. Cohen v. Beneficial Industrial Loan Corp. – must follow state law

requiring bond before shareholder derivative suit4. Klaxon – In diversity w/events that took place in multiple states, must

follow forum state’s choice of law rules i. Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. – SC Worker’s Comp Case

i. Required three-part analysis for analyzing choice of law1. Is state way in some way a part of the underlying substantive scheme?

(ie. malpractice panel example)2. Is there a risk that there may be a difference in outcome?

3. If there is a difference in outcome, would priorities of the federal court as an independent system be marginalized by applying the state rule? #3 – What is the strength of the federal interest, and how does this factor compare with the risk of a different outcome?? THIS IS THE BIGGIE: Federal courts elevate the importance of giving matters of law to the judge but MATTERS of FACT to a JURY. Such is essential to the federal judiciary - 7th amendment!! Normally a fed court could NOT ignore a state constitutional provision (unless in conflict with a federal const. issue!), so…we in federal court leave this issue (of fact) to a jury – see 551 – Herron – as “we” (fed courts) do this as a system, we will NOT need to change this in deference to SC’s “way of doing things”**Brennan concludes that the major change of federal principle (jury decision) outweighs a relatively small chance that the change will effect the outcome!

ii. An “easy case” in that there was not a real risk of difference in outcome b/t judges and juries and the strength of the federal interest in preserving the use of juries

iii. Difficult approach to applyB. ERIE – now well settled – in diversity cases, federal courts CANNOT have/apply their own

case law/common law! Will use not only the STATUTES of the state law they are using but ALSO the COMMON LAW of the state! Must derive rules of law from state cases rather than previous federal cases.

Additional Erie noteso New Q: What do we mean by “substantive” and “procedural”??

o NY court: state’s use of SoL and equitable remedy – doctrine of latches: Guaranty Trust Co. v. York – USSC ruled that a federal court cannot ignore a time limit imposed by state law! The state right of action no longer exists after the SoL ends, so there is nothing to litigate – would violate Erie.

o ANY difference of rules can be dispositive to outcome (like procedural rule about paper size)

Byrd first assumes no Federal Rule or Statute on point, but there remains a “difference in doing things” in non-codified custom b/t state and fed courts. Are Fed courts bound to follow state custom? Brennan test above… (Court had never dealt with whether right to a jury trial applied to diversity cases – ruled LATER that it does.)

If federal statute is constitutional, then follow the statute (may be on patents or securities) OR statute may arguably be classified as regulating procedure in the fed courts (As justified by the rules enabling act!) Hanna v. Plumer (see below)

IF we talk about Rules Enabling Act? Rather than a statute on point? (IF we have a statute, then we need only ask, “Is the statue arguably procedural?”

Requires the rule NOT enlarge, abridge, or modify any substantive right! As long as the rule is arguably procedural, there is no problem applying a Federal Rule!

Federal courts DO HAVE the constitutional authority via Federal statute establishing procedure

How to reconcile w/ 2072 (b) : b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

o Ex: making one have a physical can be procedural; of course, others argued that forcing an exam can be substantive. Weisburd: “simply isn’t true that the “either / or” notion applies”

Shady Grove v. Allstate – 130 S.Ct. 1431 State law said – class actions seeking statutory penalties for all members

of a class were forbidden, but this was brought in Federal Court – Fed Rule 23 has NO rule against class action penalties. So do we respect state or think this is substantive – thus a conflict?

4-1-4 split – 4 – “we must consider state law, but …we’ll just use an old precedent and disregard the state law”

Stevens – Not sure state statute was substantive, and if procedural, no reason for federal court to set aside the federal procedural rule

4-justice minority – saw purpose of rule (state) as substantive and protecting entities from exposure to class action damages – Wanted to err to the side of care and use the state prohibition b/c it could be seen as substantive

Ely of Stanford: Procedural Rule – intended to address “fairness of efficiency of litigation” – “substantive rule – anything intended to effect anything else!”

So if we take 2072 (b) seriously (p. 218) – Ely’s definition about the most helpful thing we have.

ALL of these issues are to prevent federal courts from assuming any powers not expressly granted – Federal Courts cannot make common law, but may apply federal statutesHanna’s – “twin aims of Erie” – to prevent forum shopping and inequitable administration of the law

If state not bound with substantive law – just balance: Danger of difference in outcome with importance of federal interests

But Brandeis in Erie said he wanted to stop the federal courts from making fed. common law which he said was unconstitutional!

a. Hanna v. Plumer – Conflicting Service of Process Rules Case, p.553-562i. As long as a federal rule of civil procedure, it is within authority of federal

government to generateii. If there is a federal rule, not necessary to apply Byrd balancing test

C. Choice of Law Testsa. Simple Erie-like case where there is a state rule on subject – apply state lawb. No Federal Statute - no federal statute bears no problem at all, but courts have a

practice used that is not codified in any wayi. Question to ask : Is federal practice bound up with rights and obligations of

the parties (ie. a part of substantive scheme that relates to state’s intent in regulation)?

1. If answer is yes, apply the state practice2. If answer is no, necessary to weigh the importance of federal interest

against the likelihood of a different outcome (use Byrd balancing test)

ii. Example: Gasprini case – under the Constitution, federal judges have little authority to do anything about jury verdicts (if too low or high); if there is no federal enactment, you use balancing test

c. Federal Statute Other than Rules Enabling Act i. Question to ask : Is the statute constitutional?

1. If answer is yes, federal statute applies2. If answer is no, federal statute does not apply go to next question

ii. Question to ask : What if there is a state law which conflicts?1. Federal law trumps state law, so federal law applies

iii. Why: Congress has authority to establish federal courts and the operation of the courts

d. Rule under Rules Enabling Act (codified in Federal Rules of Civil i. Question to ask : Is the rule arguably procedural?

1. If answer is yes, go to next question2. If answer is no, the rule violates the statute and is not applied

ii. Question to ask : Does the rule enlarge, abridge or modify any substantive right? (this applies only to Rules Enabling Act)

1. Definition of substantive: one that is intended to do anything not aimed at fairness or efficiency of litigation

2. If answer is yes, the rule violates the statute and is not applied3. If answer is no, the rule applies

e. Example: Federal rule that said one does not need to attach a bond in securities – would run into trouble

f. Example: Discovery rule which requires physical examination in case relating to medical malpractice to determine injury; it is arguably procedural; if under state law, exam hurts right to privacy, the rule would be seen as abridging right so it could be argued that federal rule would not apply

D. Federal Common Lawa. Erie held that there is no general federal common law, but in limited areas,

there is federal common law

E. Federal Law in State Courta. A state court adjudicating claim required to apply federal law (for example, for claim

under Federal Employees’ Liability Act – FELA)b. Extent – state courts must follow federal procedures “essential to effectuate” the

purposes behind the law, including right to a jury, burden of proof on contributory negligence, sufficiency of evidence to sustain a verdict

Chapter 7 – Pleadings - Purpose of Modern Pleadings - give notice of claims and defenses adequate for the opposing party to make discovery requests and prepare for trialRule 84 says “forms suffice under these rules”

A. Introductiona. Pleadings = formal document whereby a party to a lawsuit requests a court to give

him judgmenti. Complaint = ∏’s pleadingii. Answer = ∆’s pleading (response – must raise PJ or lose it – FIRST piece of

paper)

iii. Reply = only required if ∆ raises counterclaim against the ∏ in his answer (now ∏ must raise Jur. arguments or lose it )

b. Function: record of lawsuit, source of information about position of opposing party, source of information to the court – lets opposing party know what legal issues will be raised – to avoid surprise and facilitate discovery

c. Current system, pleadings indicate what suit is about; more information will follow in discovery

d. Issues to look for: i. Legal insufficiency = failing to state claim under the law - if all in pleading

true, ∆ must be entitled to recovery by law - If not, Δ can dismiss under Rule 12(b)(6)

ii. Factual insufficiency = failing to state facts of the claimiii. Lack of factual specificity = where there is an issue with legal sufficiency but

lack of factual evidence (often an issue with state of mind claims) - Iqbal

B. Requirements in the Complaint – action commences w/ the filing – Rule 3Serve on ∆ w/in 120 days of filing (Rule 4)“What is meant by a short and plain statement?” Until Bell Atlantic – most believed that

general, conclusory pleading was OK. But in Bell Atlantic, the accusation that companies did the same thing (logical thing that was basically not “shooting themselves in the foot”) was tantamount to collusion and conspiracy! Justice Souter said the claim was not good enough –

a. Rule 8(a) – complaint must contain:i. (1) Short and plain statement on jurisdictionii. (2) Short and plain statement showing pleader is entitled to reliefiii. (3) Demand for relief sought (injunction, money damages, etc. 10, 17, 18, 20)

1. Does not limit recovery – ∏ entitled to whatever relief she proves at trial, even if is more or of a different type than requested – 54(c) – sets relief if default

iv. Form 10 provides a sample of a complaint – this is sufficient even though a lot

v. Forms 17, 18 and 20 show different forms of reliefvi. Diogaurdi v. Durning – Customs Incompetent Claim Case, p.293-295

1. ∏’s statement was difficult to understand (foreigner without legal representation), but there was no absence of factual specificity, so the claim met Rule 8(a) requirements – ENOUGH to GIVE NOTICE

vii. McCormick v. Koppman – Alternative Accident Theories Case, p.317-3201. Where a ∏ has genuine doubt over state of facts in good faith (for

example, key witness is dead), ∏ can plead inconsistent alternatives theories without risking directed verdict or JNOV

viii. Ashcroft v Iqbal – Unconstitutional 9/11 Detention Case, supplement1. Claim did not survive 12(b)(6) motion to dismiss because it did not

allege all elements of the action as more plausible than not (ie. that ∆s purposefully adopted a policy to classify detainees based on race, religion, or national origin

2. Conclusory legal allegations, unlike the rest of the pleading, are not presumed to be true

3. Language which amounts to a rephrasing of the relevant standard does not count as an allegation (How can one get a discrimination case past discovery??)

Real problem came with Iqbal –

Continued to talk about “plausible” - problem was that the ∏ was expected to plead evidence for a “state of mind” claim - SCOTUS said “mere conclusory statements of allegations to not count as fact and cannot constitute a valid pleading” (but rule 8 says “Assuming everything the P says is true.”). Iqbal disregards restatements of legal standard. What about the other content? Court said, “assuming all these things are true, does the ∏ win?” (And will be “NO” once you chuck the allegations of discrimination as “conclusory” Court assumes, in fact, the innocence of the ∆s unless the P can plead with evidence. This is contrary to RULE 8!!Iqbal court’s labeling of allegations of discrimination as “mere conclusory statements of a legal standard” – makes pleading harder than Rule 8 language. How to reconcile this the federal forms? (Not to mention numerous cases that have survived pleadings with exactly this type of allegation!) Iqbal really screws up rule 8 and rule 9(b). 9(b) undone “Not final b/c infallible, infallible b/c final.”

Rule 9 – Special Pleading Rules – Claims not anticipated by adversaryAlleging fraud: Specify false statement and how false, where, when - 9(f) and by whom it was made. ALSO – that the ∆ knew the statement was false and made the statements to deceive

the ∏. 9(g) special damage important. Must specify special damages – those not direct result

of the ∆’s actions. Must allege “lost wages” “medical expense” and other justifications of damages (form 9)

∆ MUST PLEAD affirmative defense – Rule 9b. Rule 10 – Form of Pleadings

i. Includes requirements: name of court, title of case, file number, etc.ii. Body sets claims of defenses in numbered paragraphsiii. Can reference allegations so at to avoid repeating factsiv. Can attach documents (K, for example)

C. Remember that pleadings FRAME the proof – define the scope of admissible evidence. Evidence not framed by the pleadings is irrelevant.

a. Rule 9 – Pleading Special Matters: requires heightened specificityi. (a)(1) Need not allege capacity to sue or be sued, authority to sue or be sued

in representative capacity, legal existence of associationii. (b) Must state with particularity circumstances constituting fraud or mistake

where malice, intent, knowledge and other state of mind claims can be alleged generally

1. Ie. specification of what fraudulent statement was, when it was said, who said it, why it was false

2. As referenced in Ashcroft v. Iqbal, courts have more work to do to determine what satisfies “allege generally”

iii. (f) Must allege time and placeiv. (h) Admiralty or Maritime Claims

b. Amended Pleadings – ONE free amendment – only oncei. Rule 15 (a) – Before trial, pleading can be amended once before being served

with a responsive pleading or within 21 days after serving the pleading if a responsive pleading is not allowed; all other amendments must be allowed with opposing party’s written consent or court’s leave; must respond if

required within time remaining or 14 days after service of amended (whichever is later)

ii. Amendments liberally allowed w/ burden on opposition to say why amendment should NOT be allowed. (Exception, 15(C)) Rule 15(b) – permits amendment of pleading at trial or after judgment to reflect all issues settled at trial (question will be, has issue to be added actually been tried- must guard against prejudice, so “Did everyone realize and just never amended?” Then OK – but if the amendment is a shock to the other party, unlikely to be allowed.

iii. More generally, court will allow amendment unless there is a reason from opposing party why amendment should not be allowed

1. Possible reasons not to amend: undue delay, bad faith, repeated failure to cure deficiencies, under prejudice to opposing party

iv. Consent of other parties: determined by whether they understood issue was part of the case

v. Rule 15(c) – Relation Back of Amendment (SEE ABOVE)1. untimely claim addition – even if it would have been timely at original date. TEST: 15(d) – may relate back IF arose from stuff attempted to be set out in the first place. (The subject matter of the amendment is something which in the course of investigating the original complaint the other party would encounter it.) 2. Amendment relates back to original pleading if:

a. Law provides the particular SOL b. Amendment asserts a claim or defense that arose out of

the conduct, transaction or occurrence set out in original pleading

c. Amendment changes the party ifi. Party received notice of the action within periodii. Knew or should have known that action would be brought

but for a mistake concerning identity of party 15cCiivi. Marsh v. Coleman – Employment Age Case

1. Under Rule 15(c)(1)(B), ∏ can amend complaint even if statute of limitations has expired if the amendments relate back to those claims in original complaint by adding factual details, changing the legal theory, or adding another claims arising from the same transaction, occurrence or conduct.

a. In this case, new charges of fraud did not relate back to original claim because they occurred at separate times (earlier) and were not deemed to be relevant to original claim (Can’t insert new legal theory that was not pleaded; But wrongly decided – misapplied the standard in 15(C)- both claims mean investigating WHY the ∏ was fired– Weisburd thinks adequately related)

2. Rule 15(c)(1)(B) is built on concept that notice has been provided to ∆ for purpose of satisfying SOL

D. Dismissala. Dismissal = result of motion to dismiss; can be with prejudice (cannot bring claim

again, operates as adjudication) or without prejudice (can bring again – usually several attempts allowed))

b. Rule 41 – Dismissal of Actionsi. (a) Voluntary Dismissal – ∏ may dismiss two ways:

1. 41 (a)(1)(A)(i) – notice of dismissal before the opposing party services either an answer or a motion for summary judgment

a. Motion to dismiss could occur – this would not affect ∏’s ability to give notice of dismissal

2. 41 (a)(1)(A)(ii) – stipulation of dismissal signed by all parties who have appeared – ie. case settles (theoretically, could have many stipulations of dismissal)

3. This occurs without prejudice (unless stated otherwise) except where ∏ previously dismissed on same claim, and then notice of dismissal operates as an adjudication on the merits

4. Doctrine of preclusion – prohibited in certain situations from bringing claim again

ii. (b) Involuntary Dismissal 1. Rule 41 (b) – if π fails to prosecute or comply with these rules or a

court order, ∆ may move to dismiss action or claims OR ct do it sua sponte

2. Every involuntary dismissal of the case whatever the reason – unless dismissal order states otherwise, dismissal operates as an adjudication on the merits: W/prejudice unless for lack of JD, venue, OR failure to join under Rule 19.

3. Norm: dism order will give reason not w/ prej (i.e. dismissal with leave to amend)

iii. (c) Dismissal of Counterclaim, Crossclaim, or Third-Party Claimiv. (d) ∏ may be ordered to pay court costs or proceeding may be stayed until

costs are paid if they previously dismissed an action on same claim against same ∆

E. Responsea. Answer 8(b)(c)(d) = admit or deny truth of allegations, plead lack of knowledge,

give defensesb. Responsive pleading is required in response to a complaint unless 12(b) motion is

pendingc. Answer is also required in response to a counterclaimd. Negative pregnant with admission = denial in such a way that court treats you as

having admitted something (ie. ∏ claims item was worth $10,000 and ∆ denies it was worth $10,000 –this is considered an admission that it was worth some value – under OR ABOVE 10K)

e. Rule 8(b) – Defenses; Admissions and Denialsi. (1) Party must state in short and plain terms its defenses to each claim

asserted and admit or denyii. Denials must respond to substance; can be general (to all claims including

jurisdiction) or specific; must admit what is true where only denying in partiii. Must note lack of information where applicable; effectually deniediv. Failure to deny/silence = admission

f. Rule 8(c) – Affirmative Defenses = when a ∆ injects a new factual issue into case which if shown to be correct will limit or completely cancel liability

i. Must affirmatively stateii. Common defenses: self-defense, fraud, contributory negligence,

assumption of risk, statute of frauds, statute of limitations, duress, no JD (see list on p.35-36 of FRB);

iii. Risk of waiving whatever you fail to plead…except no SMJ!iv. Issues:

1. Is particular fact issue one that should have been raised as an affirmative defense or brought in as an essential element of ∏’s case?

2. Is a particular fact issue something that ∆ must raise by an affirmative defense or is it something necessarily in case because ∆ denies π’s allegation?

a. If injecting a new factual issue, should be an affirmative defense esp if π could not have known it would arise, but there are gray areas

g. Rule 12 – Defenses and Objectionsi. Note: Rule 12 motion stops 21-day limit for responding (60 if service waived)

1. If granted, case is closed, no need to respond2. If dismissed, 14 days from the denial to answer

ii. (b) Must assert defenses in responsive pleading; party may assert the following by motion before pleading if required or at trial if not:

1. Lack of subject-matter jurisdiction2. Lack of personal jurisdiction3. Improper venue4. Insufficient process5. Insufficient service of process6. Failure to state a claim 12(b)(6) – Motion can be filed at any time.7. Failure to join a party under Rule 19 (compulsory joinder)

iii. (c) Party may move for motion for summary judgment on pleadings after pleadings are closed but early enough not to delay trial

1. Available only when pleadings are closed – typically ∏’s motioniv. (d) If on motion for 12(b)(6) (failure to state a claim) or 12(c) (motion for

judgment) other matters are presented, motion must be treated as motion for summary judgment under Rule 56

v. (f) Motion to strike - (f)1. Allows striking from a pleading “any insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter” prior to responding to a pleading, or if no responsive pleading is permitted, within 20 days after service of the pleading.

vi. Motion for More Definite Statement 12(e)1. Pleading to which a responsive pleading is permitted is so vague or

ambiguous that a party cannot reasonably be required to frame a responsive pleading

2. If the motion is granted and the pleading is not corrected within 10 days after notice of the order, the court may strike the pleading

h. Rule 54(c) – Demand for Judgment; Relief to Be Grantedi. Default judgment must not differ in kind or amount from what is demanded in

pleadings; other final jdgmnts should grant the relief to which each is entitled even if not demanded

i. Rule 55 – Default; Default Judgmenti. Default = if a defending party fails to respond in an appropriate and timely

way, they are in the condition of default1. If ∆ ignores the complaint altogether2. If ∆’s motion to dismiss is denied and ∆ does not continue to plead

(answer) 3. To get a clerk to put a ∆ in default

a. ∏ needs a return of service to show case had gotten startedb. ∏ needs an affidavit by their lawyer showing service had been

given and no answer has been served

c. Proof that ∆ was aware of the suit & failed to meet obligation to respond

4. Having default is necessary but not sufficient for default judgmentii. Default judgment = is enforced like any other judgment and can only

happen when defending party is in default (does not happen every time)1. ∏ has no absolute right to default judgment

iii. Courts tend not to like default judgmentiv. Allows court to set aside entry of default for good cause

1. Use 60(b) to get relief where entry of default is not a default judgment2. Easy example: where process was never served

F. Veracity in Pleading – Professional Responsibilitya. Fundamental issues: behavior in litigation, disclosure of confidential information,

other rules addressed by ABA or state barb. Rule 11

i. (c) Imposes sanctions for violation: bar sanctions, court sanctions, criminal prosecution (ie. for obstruction of justice)

1. After notice and chance to fix, court may sanction attorney, law firm, or party

2. Absent exceptional circumstances, law firm jointly responsible w/ attorney

3. Motion must be served under Rule 5, giving opponent 21 days to fix before filing

4. On own, court may order to show cause why conduct has not violated5. Sanction must be limited to what will deter repetition, include:

a. Nonmonetary directives – Striking evidence/censuring/education programs

b. Order to pay penalty to courtc. Payment of all attorney fees resulting from violation

6. CANNOT impose monetary sanctiona. Against represented party for violating frivolous argumentb. On own unless show-cause order before voluntary dismissal by

sanctioned7. Does not apply to discovery/disclosure

ii. Must sign pleadings to certify truth “to best of knowledge, information, and belief” - By signing, attorney/party certifies “to best of knowledge after reasonable inquiry”:

1. Not for improper purpose2. Claims are warranted by existing law or for establishing new law3. Has evidentiary support or will likely have evidentiary support4. Denials are warranted on evidence or based on belief or lack of

information5. Violated by “signing, filing, submitting, or later advocating” a

paper when the litigant knows that it is no longer well-groundedc. Model Rules present another standard for conduct (p.345-346)

i. 3.1 cannot bring or defend suit on frivolous basisii. 3.2 resist temptation to slow litigationiii. 3.3 cannot make false statement, must disclose controlling authority contrary

to position, cannot offer evidence known to be falseiv. 3.4 cannot obstruct access to evidence

Chapter 12 – Joinder and Supplemental JurisdictionA. Two important questions for analysis:

a. Is there a joinder rule that permits assertion of this claim?b. If so, is the claim supported by subject matter jurisdiction (diversity or federal

questions; often supplemental jurisdiction)?B. Joinder – what and who can go into pleadings

a. Party may assert claim against another party in federal courts if one of joinder rules – Rules 13, 14, 18, 19, 20, or 24 – is satisfied

b. Courts must still have: personal jurisdiction, venue, and subject matter jurisdictionc. Policy:

i. Pro: avoids duplicative litigation, reduces jud. burden, avoids inconsistent results

ii. Against: makes litigation more complex, may limit ∏’s ability to choose forum and scope

d. Simple rule: if there is one ∏ and one ∆, ∏ can join any claims against ∆, no matter how unrelated

C. Article IIIa. Gives jurisdiction to courts over cases and controversies which can encompass

more than one legal theory or claimb. If there is a federal claim so connected to another claim that they could be

considered one case, then the Constitution is satisfied and claims can be heard together in federal court

D. Supplemental Jurisdictiona. 28 U.S.C. §1367 – statutory basis for “supplemental jurisdiction” in federal courts

i. (a) grants supplemental jurisdiction over claims under same case or controversy where ∏ has already brought a proper federal or diversity claim and court has “original jurisdiction” – held to have the same standard as in United Mine Workers v. Gibbs (Mine Superintendent Case, p.646-650)

1. Common nucleus of operative fact testa. Same evidence simultaneously serves to prove both claims (or

at least some of the same evidence)b. In some cases, virtually complete overlap exists (Gibbs) but in

other there may be little shared evidence (example of Grable case if he had waited to bring notice issue and adverse possession claim in same case, there would be virtually no overlap)

2. Where the original claim by ∏ satisfies amount in controversy, if second claim by joined ∏ does not affect diversity but does not meet amount in controversy standard under, claim can be joined

ii. (b) limits supplemental jurisdiction to not extend to claims by ∏s in diversity cases under §1332 when exercising supplemental jurisdiction over such claims would be inconsistent with jurisdictional requirements of §1332 – cannot extend for claim arising against persons made parties under:

1. Rule 142. Rule 193. Rule 20 – Allapattah – 1367 (b) should not be seen as

eliminating the complete diversity requirement! (Diverse ∏ with non-AiC claim can be added, but even if AiC IS satisfied, a non-diverse ∏ CANNOT be added. Supplemental J does not go this far. Also if Supp J exists, a judge has judicial discretion to refused the joinder.

Rule 20 interpreted broadly? Transaction or occurrence language – Seaman ill twice on different voyages. – hard to see how “same trans or occurrence, but essential common fact.)

4. Rule 245. Persons joined as ∏s under Rule 196. Persons seeking to intervene under Rule 24

iii. (c) gives court discretion to decline jurisdiction over supplemental claims if:1. Claim raises a novel or complex issue of state law2. Claim substantially predominates over the claims or claims which the

court has original jurisdiction3. District court has dismissed all claims over which it has original

jurisdiction (ie. if federal claim is thrown out early in the case, state claim should be too)

4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction

5. Compare with Brennan’s factors from Gibbs (p.649): a. Likelihood of jury confusionb. Hegemony of state laws (predominance)c. ∏’s awareness of the nature of claims

iv. Remember: you cannot get around the complete diversity requirement!

v. Hole in 1367(b): ∏s joined under Rule 20 who do not affect diversityb. Analysis required:

i. Is there constitutional power under Article III, §2 to hear the supplemental claim? (ie. is there a common nucleus of operative facts under Gibbs test?)

ii. Is there a statutory grant of jurisdiction over the related claim? (§1367(a) grants this broadly but §1367(b) may limit due to contradiction with §1332)

iii. Should the court hear the related claims? (§1367(c) authorizes court’s choice not to hear related claims in certain cases)

c. Note: even if the federal law claim has been dropped, court retains jurisdiction over the state law claim if analysis above has already been passed; even if nothing federal is left over, it is ok; court can of course decline to hear the claim

E. Real Party in Interest – Rule 17a. RPI = one who possesses the right being asserted and has legal right to enforce the

claimb. An issue where insurance companies want originally injured person to appear as ∏

before jury even when they do not have the claim (they have already received claim, now insurance company seeks reimbursement)

c. Subrogation = assignment by operation of law of legal claimd. Rule 17

e. Capacity – Person’s ability to sue or be suedi. Determined by law of individual’s domicileii. For a corporation, by law under which it was organizediii. For all others, law of state where court is located (few exceptions)iv. Minor may sue through guardian, committee, etc

f. Standing – π must suffer some “injury of fact” (ex: environmental group for pollution = no)

F. Claim Joinder by ∏a. Rule 18(a) – provides that a party seeking relief from an opposing party may join

with his original claim any additional claims he has against that opposing party (can be completely unrelated)

i. No common transaction or occurrence requirement like in Rule 20(a)ii. Situation where ∏ asserts a jurisdictionally proper claim against a nondiverse

party and adds related state law claim1. United Mine Workers v. Gibbs (1966) – constitutional power to hear

claims arising out of same “common nucleus of operative facts” as Article 3 §2 grants jurisdiction over entire “cases” not particular issues but fed ct not req. to hear

2. Factors to determine whether court should hear: a. Whether state law claim predominatesb. Whether it would require court to decide sensitive or novel

issues of state lawc. Whether hearing claims together would confuse juryd. Whether federal issues are resolved early in the case, leaving

only state claim b. Rule 18 (b) – can join two claims even though one of them is contingent on the

disposition of the otherc. Interaction with §1367: Needs to pass requirements in (a) and (c)

G. Permissive Party Joinder by ∏a. RULE 20: Authorizes ∏s to sue together if:

i. They assert claims arising out of the same transaction or occurrence (defined broadly); and

ii. Their claims against the ∆ or ∆s will involve a common question of law or factiii. Does not require ∏s to join when criteria is metiv. Policy rationale: more efficient to litigate in combined action rather than

separate suits and resolving in single action avoids possibility of inconsistent judgments

b. Schwartz v. Swan – Double Accident Consortium Case, p.654-658i. Court allowed joinder of claims from two separate car accidents that ∏ was

involved in which together resulted in injuries (this was consider the same “series of transaction”)

1. Note that where injuries can be separated, Rule 20 may not be read to allow joinder as done here

ii. Court held that it was up to discretion of lower court as to whether other passenger in accident (in car with ∏) could join

c. Interaction with §1367: needs to pass requirements in (a), (b), and (c); under (b), only one person must meet $75,000 amount in controversy rule of §1332 but complete diversity must still exist (technically, this rule leaves a loophole open for claims by ∏s joined under Rule 20 – who would break diversity – against ∆, but the Supreme Ct has not read to allow this)

H.Claim Joinder by ∆sa. Counterclaims

i. Rule 13 authorizes a defending party in a suit to assert claims back against an opposing party who has claimed against him

ii. Compulsory = if you don’t use it, you lose it – IF OVERLAP of “factual issues”1. Rule 13(a) – the defending party’s claim is compulsory if:

a. Arises from the same transaction or occurrence that is the subject matter of the opposing party’s claim (If accident followed by defamation – two claims – counterclaim not compulsory) If D WANTS to assert a CC that alone does not have SMJ, good for D who jests supp. J for the CC – OR “opposite” if D wants to say opposition should have had to bring in the first case! Can’t bring now!)

i. Transaction or occurrence is interpreted more narrowly here – must share common nucleus of operative fact (for example, arising out of same car accident); absolute identity of issues not required

b. Does not require adding another party over whom the court cannot claim jurisdiction

2. Forces parties who are already adversaries to litigate all claims arising from same set of facts in a single action

3. Applies to any defending party, not just original ∆4. Carteret Savings & Loan Association v. Jackson – Get Rich Yacht Case,

p.668-669a. Holding: ∆s could not assert counterclaims/defenses against ∏

who had already litigated in another state and was merely seeking to enforce judgment in present action; ∆s should have filed answer in initial action

b. Rule 13(a) seeks “to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters” and the federal rules in general seek to incite the “just, speedy and inexpensive determination of every action”

iii. Permissive 1. Rule 13(b) – grants ability to assert unrelated (ie. about anything)

counterclaims2. Court can use Rule 42(b) to separate trial of one or more separate

issues, claims, crossclaims, counterclaims, or third-party claims, but ∆ will at least have ability to settle claims without filing a separate lawsuit

3. Subject matter jurisdiction must be analyzed separately, and if there is no subject matter jurisdiction, court cannot hear claims authorized by joinder

iv. 13(h) – Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim (Rule 18 would allow new party to raise claims that are w/in SMJ. )

1. Permits adding employers where party is an employee2. If claim by ∆ requiring joinder of parties was a compulsory

counterclaim and destroyed diversity, 1367(b) would be satisfied as claim is by ∆ NOT ∏

v. Note: where claim by original ∏ does not invoke a federal question or diversity of citizenship (and would thus be dismissed to be brought elsewhere), a counterclaim (compulsory or otherwise) cannot invoke federal question jurisdiction and then allow litigation of entire case (prohibited by well-pleaded complaint rule)

vi. Interaction with §1367: Needs to pass requirements in (a) and (c); if a compulsory counterclaim, it will satisfy common nucleus test; if a permissive counterclaim, independent basis of subject matter jurisdiction needed (likely

easier in diversity case, but more difficult in federal question case unless it involves the same federal question – ie. statute)

b. Crossclaims – asserted by one party against a co-party (someone who is already on same side of the “v”)

i. Rule 13(g) – provides for assertion of crossclaims arising out of the same transaction or occurrence as the main claim

1. Transaction or occurrence is interpreted more narrowly here (same as in 13(a)) – must share common nucleus of operative fact (for example, arising out of same car accident); absolute identity of issues not required

ii. Policy rationale: efficiency and consistencyiii. Joinder is optional (co-party could choose to sue separately)iv. If defending party asserts a crossclaim against opposing party under Rule

13(g), party is then required to assert compulsory counterclaims (Rule 13(a)) and is permitted to assert permissive counterclaims (Rule 13(b)

v. Not limited to contribution or indemnity, for example…1. Unrelated claims

a. Rule 18(a) – provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against that opposing party (can be completely unrelated)

i. No common transaction or occurrence requirement like in Rule 20(a)

ii. Can only assert this unrelated claim once a proper crossclaim has been asserted

vi. Interaction with §1367: Needs to pass requirements in (a) and (c); if crossclaim is against someone brought in under 14, 19, 20, or 24, will need to meet (b) as well

I. Overriding ∏’s Party Structurea. Impleader (third-party practice) – bring new parties into suit

i. Rule 14 – gives the ∆ limited rights to implead new parties against whom ∆ has claims related to the main action

1. ∆ may bring in a person not yet a party who may be liable to ∆ for all or part of recovery the ∏ obtains on main claim

2. For contribution (third-party liable for part of damages) or for all of damages (full indemnification)

ii. In cases where ∆ claims that he is not directly liable to ∏ but someone else is, impleader is appropriate

1. In this situation, Rule 14 does not allow ∆ to suggest a more appropriate ∆, but only allows ∆ to bring in those that they can pass some or all liability onto

iii. Third-party liability is dependent on the outcome of main claimiv. Third-party can escape liability by defeating ∏’s original claim or defeating

∆’s derivative claim (see Rule 14(a) which allows)v. Third party ∆ – party against whom third-party complaint is madevi. Third party ∏ – one who asserts a third-party complaintvii. Impleader complaint must follow Rule 8-11 pleading requirements and Rule 4

service requirements and response must follow Rule 12, with options to file counterclaims under Rule 13, implead further parties under Rule 14, or assert claims against ∏ under Rule 14 if originating from same transaction or occurrence (but original ∏ could not bring a counterclaim)

viii. Policy:1. Favor of impleader: efficiency and consistency2. Factors against: undue delay, complication of main action, potential

prejudice to πix. Impleader will not affect diversity jurisdiction or be considering in

determining venuex. Interaction with §1367: needs to pass requirements in (a), (b), and (c); under

(b), third-party ∆ can “break” diversity (be from same state as ∏) and claim against third-party ∆ does not need to be $75,000 or greater

1. 1367(b) purports to preclude supplemental jurisdiction only over claims by ∏s – if claim is asserted by ∆, 1367(b) will not hinder

b. Compulsory Joinderi. Even if ∏ does not want to join a particular person, relationship is such that

they must be joinedii. Rule 19

1. (a) Person who is subject to service of process and whose joinder will not deprive court of subject matter jurisdiction is required to be joined if feasible if:

a. In their absence, ct cannot accord complete relief among existing parties or

b. That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:

i. impair or impede the person’s ability to protect the interest, or

ii. Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest

2. (b) When joinder is not feasible, court must determine whether in equity and good conscience action should proceed or be dismissed by looking at following factors:

a. Extent to which judgment rendered in absence might prejudice that person or the existing parties

b. Extent to which any prejudice could be lessened or avoided by protective provisions, shaping the relief (for example substituting damage relief for equitable relief - $$ to turkey co.), or other measures

c. Whether a judgment rendered in absence would be adequate (Supreme Ct has read this to mean whether there would be additional litigation)

d. Whether the ∏ would have an adequate remedy if the action were dismissed for non-joinder

iii. Haas v. Jefferson National Bank (Joint Buyers Shares Case, p.693-697)1. ∏ required to join joint shareholder because of Rule 19(a)(1)(B) where

judgment without him would have risk ability to protect interest and create inconsistency

2. However, as it was not feasible to join, Rule 19(b) required review of the factors to determine whether to continue without joining or dismiss

3. Factors determined that not joining party would present risks which could not be lessened or avoided and additional litigation would occur; since ∏ could pursue in state court, suit was dismissed

iv. Temple v. Synthes Corp – Plate and Screw in Back Case, p.697-698

1. Joint tortfeasors do not satisfy 19(a) requirements2. Joint tortfeasors who may have joint and several liability do not

necessarily have to be joined and named as ∆s in a single lawsuit, but are instead permissive parties, and cannot be required to be joined for reasons of judicial economy.

3. Example where joinder not required: failed performance by manufacturer of two separate Ks – he will have to pay each regardless

v. Interaction with §1367 : needs to pass requirements in (a), (b), and (c); under (b), joinder cannot destroy diversity

1. 1367(b) purports to preclude supplemental jurisdiction only over claims by ∏s – if claim is asserted by ∆, 1367(b) will not hinder

SUPPLEMENTAL JURISDICTION - §1367

Qualifying Under Section 1367(a) -

o Extends SMJ to pendant claims from federal question claims that are o “so related [to the freestanding claims . . . that they form part of the same

case or controversy under Article III of the United States Constitution.” (GIBBS TEST)

∏ must assert a federal claim sufficient to get federal question SMJ pendant claims “must derive from a common nucleus of operative

fact.” Strict - Test is if same evidence proves both claims, relies

of same facts conceptually distinct acts can be all part of same series of

transactions. Multiple claims “would ordinarily try them all in one judicial

proceeding.”

o “Supplemental SMJ includes claims that involve joinder or intervention of parties,”o qualify if satisfy the same transaction or occurrence standard for

joinder under 13(a) (compulsory counterclaim), 13(g) (crossclaim), 20 (joinder of parties)

Disqualifying claw backUnder § 1367(b)

o In diversity-only cases, no SMJ over claims by ∏s against persons made parties by

o Rule 14 (impleader)o 19 (compulsory joinder of parties)o 20(permissive joinder of parties)o 24 intervention),

o If would ruin complete diversity, no SMJ extensiono Does not preclude claims by ∏s joined under Rule 20 against a single Δ

Discretion Under § 1367(c)

o Court may decline supplemental jurisdiction in (a) if:

o Claim raises novel/complex issue of stateo Non-SMJ claim predominates over SMJ claimo Court dismissed all claims giving original SMJo Exceptional circumstance compelling declination of SMJ

100-mile Bulge Ruleo When SMJ over third-party Δs and necessary parties, service by the 100-mile bulge

ruleo if such parties cannot be served within the state in which the federal court

sits,o service on such added parties anywhere within 100 miles of the federal

courthouse in which the action is pending. Rule 4k1b

c. Intervention i. Intervention – when a stranger to a suit asserts himself; wants to argue to

protect him interestsii. Rule 24 – (no supplemental jurisdiction over claims)

1. (a) Intervention of Right - On timely motion must permit anyone to intervene who:

a. claims interest relating to the property/transaction which is the sbjct of action;

b. demonstrates lawsuit carries a possibility of significant detriment to the prty;

c. substantial possibility that none of parties will represent the prty’s interest

d. When the applicant’s stake in the outcome is no greater than that of an existing party with whom the applicant would be aligned, and when that existing party is not in collusion with an opposing party, incompetent, or hostile toward the applicant, representation by the existing party often will be deemed adequate

e. NOTE: precedent is varied (the amount of “interest” needed varies)

2. (b) Permissive Intervention 24(b)a. On timely motion may permit anyone to intervene who:

i. Given a conditional rights to intervene under statute ORii. Has a claim or defense that shares with the main action a

common question of law or factiii. If consequence of allowing intervention is lengthy process of intervener

litigating claim, it would place undue burden on ∏ (a good reason not to allow!)

iv. Interaction with §1367: needs to pass (a), (b), and (c) requirements; under (b), must be independent basis for subject matter jurisdiction for π to make a claim against an intervener

J. Consolidation of Claimsa. Rule 42 – court may join, consolidate, or issue orders to avoid unnecessary cost if

actions involve a common question of law or facti. This represents a formal difference with joinder – under joinder, actions

remain separate even if there is only one trial but under consolidation 2 lawsuits are consolidated into 1

b. 42(b) – court can separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third party claims; federal right to jury trial is preserved; may do this where there is fear of being prejudiced

Multidistrict Litigation - §1407 Civil actions involving one or more common questions of fact that are pending

in different districts may be transferred to any district for coordinated or consolidated pretrial proceedings. [28 U.S.C. § 1407] Transfers are authorized only when they “will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions” and are most frequently invoked in antitrust cases, aviation accident cases, patent and trademark suits, products liability actions and securities law violation actions. Section 1407 applies only to pretrial proceedings and not trials.

Rule 18 Joinder of Claims: One P and One D can “throw in all claims”Possible problem if main claim is based on Federal Question (no diversity) and

claim to be joined is NOT a Federal Question. Will Supplemental Jurisdiction cover the 2nd claim?

Gibbs (federal boycott issue and secondary boycott only raising state claim(s)) : Sup J available IF the non-fed claim and fed claim share and common nucleus of operative fact.

1. Common nucleus of operative fact testa. Same evidence simultaneously serves to prove both claims

(or at least some of the same evidence)b. In some cases, virtually complete overlap exists (Gibbs)

but in other there may be little shared evidence (example of Grable case if he had waited to bring notice issue and adverse possession claim in same case, there would be virtually no overlap)

2. Where the original claim by ∏ satisfies amount in controversy, if second claim by joined ∏ does not affect diversity but does not meet amount in controversy standard under, claim can be joined

3. 1367 (a) – Supplemental Jurisdiction Available – One Const. Case = com nuc of Op Fact is satisfied

4. 1367 (b) – claw back – irrelevant when main claim is a fed Q claim

Chapter 6 – Collateral AttacksA. Traditional and Modern Approaches to Challenging Personal

Jurisdictiona. Pre-20th century

i. Procedure was confusing and risked waiving defensesii. Could not raise jurisdictional defenses and defenses to merit together; had to

be done in particular orderb. Now, jurisdictional and other defenses can be raised under Rule 12

i. All defenses should be in responsive pleading (answer if required, is required in federal courts)

ii. Where a counterclaim is raised, ∏ should reply with all defensesiii. No defense or objection is waived by joining it with one or more other

defenses or objections in a responsive pleading or in a motioniv. Rule 12

1. (a) ∆ must serve an answer within 21 days (or 60 days if ∆ is US, agency, officer, or employee being sued in official or individual capacity while performing US duty) after being served with the summons and complaint, counterclaim or crossclaim, or reply to an answer or if service has been waived under 4(d), within 60 days after request for waiver sent or within 90 days after it was sent if outside the US (see page 41)

a. If motion is served andi. granted, ∆ has 14 days after more definite statement is

servedii. denied, ∆ has 14 days after notice of court’s action

2. (b) Must assert defenses in responsive pleading; could also do (the following list) separately in motion if do not wish to complete whole pleading if required or at trial if not: (play these cards in first hand or lose them 12(h)(1)(A))

a. lack of subject-matter jurisdictionb. lack of personal jurisdictionc. improper venued. insufficient processe. insufficient service of processf. failure to state a claim (12(b)(6))g. failure to join a party under Rule 19 (compulsory joinder)

3. (g) Joining Motions (Rules 19 and 20)a. Motion may be joined with any other motion allowed by the rule;

party that makes a motion under this rule must raise all defenses or objections if available, except for

i. Lack of subject-matter jurisdiction (can be brought at any time under Rule 12(h)(3))

ii. Failure to state a claim, failure to join a person required by Rule 19(b), or failure to state a legal defense to a claim which may be raised:

1. In any pleading allowed or ordered under Rule 7(a) (complaint, answer to a complaint, answer to a counterclaim designated as a counterclaim, 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)

2. By a motion under Rule 12(c) (motion for judgment on pleadings)

3. At trialb. Cannot make another motion raising a defense that you could

have raised 4. (h) Party waives a defense in Rule 12(b)(2)-(5) by omitting from (g)(2)

motion or failing to make it by motion under this rule or include it in a responsive pleading or amendment allowed by Rule 15(a)(1) except in circumstances above

a. If you make a Rule 12 motion and do not mention defenses, they are waived (this happened in Bates v. C&S Adjusters – Distressed Debtor Case

5. (c) Motion for judgment on pleadingsa. Judgment on pleadings after pleadings are closed, but early

enough not to delay trialb. Allows ∏ to get judgment

B. Collateral (not substantive or on the merits) and Direct Attacks on Personal Jurisdiction

a. Collateral attack = ignoring court proceedings and then asserting later that the proceedings were invalid (because of lack of personal jurisdiction, for example) in order to avoid enforcement of judgment

i. Occurred in Pennoyer v. Neff (Oregon Land Case)ii. Used much less often currently as defenses can be put togetheriii. Can attack personal jurisdiction and subject matter jurisdiction this wayiv. Less clear whether you can attack subject matter jurisdiction of federal courts

this wayb. Direct attack = making an appearance to contest

C. Challenging Federal Subject Matter Jurisdictiona. Lack of subject matter jurisdiction as a defense is never waived – if it is found to be

lacking at any time, court must dismiss

DiscoveryA. Discovery Rule 45 subpoena issues

a. Basic Parameters – Rule 26i. Under Rule 26(b)(1), “any nonprivileged matter that is relevant to any party’s

claim or defense” is discoverable so long as “reasonably calculated to lead to the discovery of admissible evidence”

ii. Sweeping system of discovery provided for in federal courtiii. Permitted with respect to questions that go to party’s own case AND case of

their opponent(s)iv. Rule 26(b)(2) attempts to limit duplicative discovery or request in less

burdensome manner, asking judge to balance factors of relevance, cost, burden, whether accessible, etc.

v. Under 26(e), parties must supplement or correct if it learns that something is incomplete or incorrect

b. Relevancei. Definition of relevance – same meaning as in Federal Rules of Evidence –

“evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”

ii. Discoverable distinguished from whether admissible at trialiii. If a piece of information could cause bias and probative value is quite low, it

will not be able to be admittedc. Process

i. Request provided - might partially object/consentii. Requesting party must make demonstration of relevancyiii. In discovery, burden falls on party objecting to discovery to show why it is not

discoverable

iv. Court will take note that if you do not know what is contained in the information, you will be unable to make case for needing it

v. Once judge decides question, order discovery to proceed or notd. Criticisms

i. Expensive, which can lead to settlement even when not appropriateii. Because subject is broad, requests may be frivolousiii. Can undermine own case by having to turn over

B. Discovery Devices – discovery devices are compulsorya. Automatic Disclosures

i. All disclosures must be written, signed and served (Rule 26(a)(4))ii. Rule 26(a)(1) – Initial disclosures

1. (A) A party must, without awaiting a discovery request, provide: a. (i) Name and contact of any individuals with discoverable

information that disclosing party may use b. (ii) Copy or description of all documents and tangible things that

disclosing party may use (all ESI)c. (iii) Computation of damages with support materiald. (iv) Insurance agreement for policy that may be liable (because

it is relevant to settlement discussion though not admissible)2. (B) Except for exempt proceeding (review of administrative record,

habeas corpus, action without attorney by person in government custody, an action by US to recover benefit payments/student loan funds, action to enforce arbitration award)

3. (C) Within 14 days of 26(f) conference4. (D) For parties joined or served later, within 30 days5. (E) Must make disclosure even with info available – not excused

because it has not fully investigated, denies sufficiency of claim, or other party has yet to disclose

iii. Rule 26(a)(3) – Pretrial disclosure1. (A) Party must provide:

a. (i) Name and contact of all witnesses if not previously provided that party intends to present

b. (ii) Designation of witnesses party intends to present by deposition and pertinent transcript

c. (iii) ID of documents and exhibits that intend to offer2. (B) Must be made 30 days before trial and objections within 14 days

after provided3. (C) All disclosures in writing, signed and served

b. Depositionsi. Sworn testimony out of court under penalties of perjury used to get

information that someone would rememberii. Rule 30 – Depositions by Oral Examination

1. Parties must attend2. Nonparty subpoenaed to be deposed3. Rule 30(b)(6) – permits notice or subpoena to be directed to an

organization informing them of the subject matter and requiring them to produce someone who has knowledge to address

a. Not always clear who will be knowledgeable so it puts burden on organization to determine who is best person to answer

4. Rule 30(c)(2) – objections – objections must be noted but deposition continues; in limited circumstances, lawyer can tell witness/client not to answer a question

5. Limit on number of depositions and interrogatories allowed6. Under Rule 45, it is possible to obtain subpoena to get anyone to give

deposition (may have to pay expenses) – whether connected to suit or any parties is irrelevant

7. Possible to use Rule 34 and 45 to get people to bring or produce certain documents, can be used against a nonparty

8. What can a party do with a deposition?a. If deposition is given by adverse party or agent of opposing

party, then it can be used for any purposeb. Main use at trial will be impeachment – if someone gives a

different testimony at trial as to what happened, you can bring in deposition to ask why they answered differently

iii. Written Depositions1. Rule 31

a. Allows for party to deliver questions to an officer to depose an individual, must serve all other parties, other parties will have an opportunity to depose with cross questions after notice of direct questions, deposition must be filed promptly

iv. Rule 32 – Using Depositions in Court Proceedings1. (a) So long as opposing party was present at deposition or had notice

of it and it is admissible under Federal Rules of Evidence, depositions can be used for:

a. Impeachment of witness testimonyb. Is of opposing party or was an agent when deposedc. Unavailable witness (dead, more than 100 miles away, illness,

age, in prison, exceptional circumstances)d. Where taken in an earlier action if filed in a federal or state court

2. Cannot be used where party has less than 11 days notice and has pending motion for protective order or where party could not obtain attorney to represent at deposition

3. (d) Objections to notice, qualifications of officer giving deposition, competence of deponent, error in taking, written question, or how deposition is completed may be waived if not filed within certain time period

v. False statements at deposition can be prosecuted as perjury under 18 U.S.C. 1623

c. Interrogatoriesi. Sworn answers to questions which are more useful than depositions, flesh out

the party’s contentions and reasoning (essentially requiring specifics that are not required in pleading)

ii. Often party will need to go through documents to answeriii. Can relate to any matter under Rule 26(b)iv. Rule 33 – Interrogatories to Parties

1. Only directed to a party, NOT any individual2. No more than 25 allowed unless court orders otherwise3. (b) Must be answered separately and fully by party within 30 days with

any objections indicated and signed4. (d) If an answer may be found in records and burden of finding is

substantially the same for either party, response can specify where to find answer and give party an opportunity to examine

v. United Oil Co. v. Parts Associates, Inc.

1. Some interrogatories were too broad (ie. list all licenses and certificates received in last 10 years)

2. ∏ compelled to respond to ∆’s request for documents differently (had to be more specific than that it can be found in certain boxes of files where ∆ says it could not derive the answer with review)

vi. Can always ask opposing party what they contend facts of the case ared. Requests for Admission

i. This is not really a discovery device, because you are not uncovering information you did not already have

ii. Used to eliminate time consuming procedures (ie. admission of a document)iii. Sanctions for refusing to admit something that is eventually proven are much

less significant than for other refusals in discoveryiv. Rule 36 – Requests for Admission

1. May serve on any other party request to admit truth of matters within 26(b) scope related to facts, application of law to facts, opinion about either and genuineness of document

2. If matter is not admitted, must detail why it is denied; must qualify answers if necessary; can assert lack of knowledge

3. Can object to request and asking party can object to sufficiency of answer

4. (b) – Admission conclusively establishes facts in this courte. Production of Documents

i. Request to someone in possession, custody, or control of said item who is a party

1. May be issues with defining possession (ie. if party gives item to grandma to “hold”, who possesses it?)

ii. Rule 34 – Producing Documents, Data, or Items, or Inspecting Premises1. (a) May request to produce or review documents or electronically

stored information, tangible items, or permit entry to property for testing or photographs

2. Must answer within 30 days or object to particular parts3. (c) Nonparty may be compelled to produce under Rule 454. Discovery of electronic materials

a. Logistical problems: saving all emails regarding a particular topic, greater volume of materials, how electronic material is stored (often on back-up disks maintained by information technology personnel of company)

b. Obligation to preserve relevant material is triggered as soon as it becomes apparent that litigation will soon be pending

c. Destruction of material just before suit was filed but after party knew litigation may be forthcoming can lead judge to instruct jury to infer that information was against the party (may also face obstruction of justice charges)

d. Record retention programsi. If company engages in regular pattern of destroying

information and does not know of pending litigation, would not lead to inference that information was against the party

ii. If it can be shown that they did not have such a program, it would lead to such an inference

iii. United Oil Co. v. Parts Associates, Inc. – Chemical Exposure Discovery Case, p.365-360

1. Request from ∏ for information regarding previous litigation that would establish company had knowledge of potential risks

a. Requests that were found to be reasonable: for litigation involving dyes themselves, litigation involving liver damage specifically (not all types of harms), for products containing same components

b. Requests deemed too broad: all claims against any of company’s products, seeking documents produced more than 10 years ago, all documents that relate to litigation, all documents that refer to allegations in this cases

f. Physical and Mental Examinationsi. Rule 35 – Physical and Mental Examinations

1. Must get an order from the court showing good cause and mental or physical condition must be in controversy

2. Person examined can request a copy of the report from other party but will then be compelled to provide any prior examinations by their doctor

g. Note: Rule 26(e) requires that disclosures, requests for production, requests for admission and interrogatories must be supplemented if material is or becomes incorrect or incomplete or as ordered by the court; applies to expert witness report & deposition

C. Exceptionsa. Privileged Material

i. Privileged documents are not discoverable (Rule 26(b)(1))ii. All states recognize attorney-client privilege, patient-doctor, priest-penance iii. Communication b/t the individuals is protected, but not the information (ie. if

client tells lawyer he was driving 70mph at time of crash, you cannot ask lawyer what he was told, but you can ask the client himself)

b. Work Producti. Basic idea: lawyers ought not be able to build their cases by discovering all

the work of the other lawyerii. Rule 26(b)(3) –Trial Preparation: Materials

1. Cannot discover materials prepared for litigation purposes unless they are discoverable under 26(b)(1) or party shows substantial need and cannot without undue hardship obtain equivalent by other means

2. Court must protect against disclosure of the mental impressions, conclusions or legal theories of a party’s attorney (unless the lawyer’s opinions are the subject of the case)

3. May obtain previous statement on subject matteriii. If created by a third-party, there is no basis in saying it is protectediv. If data would typically be covered by work product rule, but expert intends to

base opinion on information, it would be discoverablec. Experts – written reports – disclosures time table – if rebuttal, different

i. Experts = someone called to testify to provide an opinion on subject that average juror cannot be expected to know about

ii. Issue: practice of paying off expert to say what a party wants to be saidiii. Informally consulted experts do not need to be identifiediv. Rule 26(a)(2) – Disclosure of Expert Testimony

1. Party must disclose identity of any witness it may use at trial to present evidence accompanied by copy of their written report containing statement of opinion and basis, data used to form opinion,

exhibits used, qualifications and publications, list of cases where they testified as expert, and statement of compensation at least 90 days before trial or if to rebut other party’s similar evidence, within 30 days after the disclosure

v. Rule 26(b)(4) – Trial Preparation: Experts1. (A) Can depose experts intended to testify after receiving report2. (B) Cannot depose experts employed by opposing party who are not

testifying unless under 35(b) (examiner for a physical or mental examination) or there is a showing that obtaining information on same subject impracticable by other means (some courts take this to mean that even their name does not have to be identified)

3. (C) Party seeking discovery must pay a reasonable fee for deposition under (A) or (B)

d. Where Limited by Courti. Rule 26(c) – Protective orders – render certain subjects or inspections

restricted1. Party or person may move for a protective order in court to protect

from annoyance, embarrassment, oppression or undue burden or expense

2. Order can forbid disclosure or discovery, prescribe different discovery method, forbid inquiry into certain matters, designate who may be present during discovery, require deposition be sealed, require trade secret not revealed, require simultaneous filing and opening of documents

ii. Common restriction: limits who can see information where highly confidential – ie. Coke formula

D. Timing and Pretrial Disclosures, Conferences, and Orders – judge has extensive power to control discovery!

a. Rule 16 – Pretrial Conferences; Scheduling; Managementi. (b) Scheduling order set by judge after receiving Rule 26(f) report that

provide limits for joining parties, amending pleadings, completing discovery, filing motions and possibly modifying timing of disclosures, extent of discovery, setting dates for pretrial conferences, etc.

ii. (c) Representative for parties must attend; can discuss modifying claims, amending pleadings, obtaining admissions, discovery process, witnesses and documents, dates for further conferences, settling the case, etc.

iii. (e) Final pretrial conference and orders may be held as close to start of trial as possible to formulate trial plan; at least one attorney for each party must attend

iv. Federal judges can refer Rule 16 matters to a magistrate judge to avoid being privy to information that is inadmissible at trial 16(b)(1)

b. Rule 26(f) – Conference of the Parties; Planning for Discoveryi. Must confer as soon as possible to consider nature of claim, possibilities for

settling, discovery process, etc.ii. Discovery cannot begin until this occursiii. Latest time is 99 days after service of complaintiv. Must submit written report within 14 days

c. Rule 26(d) – Timing and Sequence of Discoveryi. No discovery before 26(f) conference

ii. Methods can be used in any sequence and discovery of one party should not delay other

E. Court Supervision and Sanctionsa. Rule 26(g) – Signing and Sanctions

i. Attorney must sign all disclosures indicating completeness and correctness and discovery , requests, responses, or objections indicating consistency with rules, validity, that it is not unreasonable or unduly burdensome

ii. Court must impose sanction on signer or their client if certification violates these rules

iii. In Washington State Physicians Ins. Exchange and Ass’n v. Fisons Group, bad faith discovery (in form of deceiving, anonymous letter), what Rule 26(g) seeks to prevent

b. Rule 37 – Failure to Make Disclosures, Cooperate in Discovery; Sanctionsi. Rule 37 provides for party seeking discovery who is not satisfied with other’s

response to compel discoveryii. If you drag your heels in responding to discovery and the other party has to

keep going back to the judge, you will be sanctionediii. (c) – sanctions are allowed for failing to make admission in response to Rule

36 request1. Can consider deterrence – cannot escape sanctions by stringing things

out and then turning everything over just before sanctions are given2. Refusal to admit something requested under Rule 36 – described under

37(c)(2) – test requires a higher threshold and potential penalties are less

iv. (e) – no sanctions can be imposed for electronic data lost as a result of routine, good faith expungement of system data

v. Lawyer has obligation to disclose when aware that client has lied, presented false evidence, not produced documents

F. If party fails to obey order or permit discovery or allow exam, court has following options: Rule 37(b)(2)(A)

a. award discovery expenses against the violator.b. deem established facts that were the object of discovery.c. exclude evidence.d. strike all or part of the pleadings.e. dismiss the action.f. render judgment by default.

G. Discovery in International Contexta. Other countries think our rules are extremely liberalb. Cooperation will not always be greatc. Statute in many foreign countries which forbid foreign nationals to comply with

American discovery ordersd. Situations when American lawyers run afoul with other countries’ rules regarding

depositioni. In US, need someone authorized to administer oathii. Countries exist where only officials of government can conduct such

depositionse. International discovery can be difficult, especially for corporations with significant

assets in US but with information elsewhere

i. Compelling foreign employee to submit to deposition for example

Adjudication with and without a Trial or JuryA. Right to a Jury Granted in Constitution

i. Article III, Section 21. Grants right to a jury2. Not granted in state courts or administrative courts

a. In administrative courts, jury is required for adjudication of “private rights” but not for “new statutory public rights”

ii. 6th Amendment – criminal casesiii. 7th Amendment – civil cases

1. “Right shall be preserved” – you have a right to a jury trial today if you would have had one in suits at common law (in an action for money damages)

2. No federal constitutional right to a jury for civil cases in state courts but many state constitutions or statutes require it (in NC, right to jury for equitable claims as well as legal claims)

3. Cases where both legal and equitable claims are brought – have right to a jury trial even where legal claims are incidental

a. Legal claims must be tried first4. Article I courts not required to have juries

b. Either party can request a jury under Rule 38

B. Summary Judgment – Adjudication Without Trial or Jurya. Rule 56 – enter judgment for moving party when there are no issues of material factb. Partial summary judgment is availablec. Intended to keep meritless claims out of courtd. Appropriate when:

i. Agreement on facts and disagreement over law – undisputed facts, and I win – Jury is NOT permitted to believe uncontradicted, unimpeached evidence- from a disinterested source – IF ANY dispute on facts, SJ is inappropriate. Judge does not make decisions of credibility and does not compare items of evidence.

ii. Disagreement on facts but no evidence supports ∏ to some essential part of the claim so no reasonable jury could find in favor of one side

1. NOTE: summary judgment against ∆s is rare – case of flight plan in violation of FAA regulations which indicated that the airplane would be flying 1000 ft. lower than permitted to fly

e. Standard of reviewi. Has moving party established that there are no disputed issues of material

fact and moving party is entitled to judgment as a matter of law?ii. Disputed issue = whether any evidence on other side to create dispute in

facts1. Even if there is only one witness to support other side who appears to

be lying, summary judgment is not appropriate because facts are disputed

iii. Burdens on parties1. Burden of production = burden of going forward; obligation to come

forward with evidence to support a claima. Has party with burden of persuasion produced enough evidence

which if believed would satisfy the burden of persuasion?

2. Burden of persuasion = degree of certainty fact finder must have before it can find for one side (either preponderance of evidence or clear and convincing evidence)

a. Jury is free to disbelieve witnesses, except one that is disinterested (nothing riding on case), unimpeached (no reason put forward to disbelieve), and uncontradicted (no one has given opposite account) – very rare witness

b. If jury cannot decide facts, party with burden of persuasion loses3. If party moving for summary judgment does not bear burden of

persuasion (often ∆), that party has adequately supported motion for summary judgment by showing there is nothing (no evidence that if believed would permit reasonable fact finder to find that standard is satisfied) in record at time of motion

4. Burden then shifts on non-movanta. Can point to physical evidence not in the record to avoid JMOLb. If ∆ did not do adequate discovery on aspect’s of the ∏’s case,

they may not be aware of this evidence5. Affidavits to support or oppose summary judgment must be made on

personal knowledge with facts admissible in evidencef. When motion for summary judgment, evidence reviewed in favor of non-moving

partyg. Role of judge and jury

i. Judge: rules on whether something offered as evidence to an element counts as evidence to that element; whether evidence is convincing enough that a reasonable jury could decide in their favor

1. Issue of surveillance camera which conflicts with witness testimony – maybe summary judgment would not be appropriate there

ii. Mixed questions of law and fact:1. For jury: proximate cause, reasonableness of notice, whether someone

exercised due care2. For judge: whether ∏ is public figure, interpretation of corporate

resolution

C. Judgment as a Matter of Law (was Directed Verdict)a. Judgment as a matter of law (JMOL) – where court either controls or second-guesses

the jury by choosing not to send to jury or refusing to submit the reached verdict (Can make and later renew)

b. Directed verdict = if court determines there is insufficient evidence, court may decline to submit to the jury and enter judgment on own

i. Standard – “whether a fair-minded jury could return a verdict for the ∏ on the evidence presented”

ii. Based on evidence in discoveryc. Judgment notwithstanding the verdict (JNOV but now called renewed

JMOL) = court may enter JNOV if case is submitted to the jury and a verdict is returned for which there is insufficient evidentiary support

i. Based on evidence presented at trialii. Conflict with 7th Amendment which said no fact tried by jury shall be re-

examined – court now views as a delayed ruling on earlier motion for directed verdict which was denied

iii. Rule 50(a): If a party has been fully heard on an issues and court finds that reasonable jury would not have evidentiary basis to find for party on that issue, court may

1. Resolve against party2. Grant a motion for judgment as a matter of law against party on a

claim or defense that under the controlling law can be maintained or defeated only with a favorable finding on that issue

iv. Rule 50(b) allows motion for JMOL to be reassessed1. Where there was a prior motion, motion for JMOL can be reassessed by

submitting renewed motion within 10 days of judgment2. If motion is untimely, there is no authority to enter JMOL3. Initial motion for JMOL must have been made at trial in order to renew

v. Standard - considering all evidence but resolving doubts in favor of nonmoving party, is there any evidence if believed which would permit the jury to return a verdict in favor of nonmoving party?

vi. Rule also permits joining motion for a new trial – even if JMOL is granted, asks the judge to make conditional ruling that if judgment is later vacated or reversed, should new trial be granted

vii. Under federal discrimination law, once the ∏ establishes a prima facie case of discrimination, the employer must proffer a nondiscriminatory explanation for the challenged conduct (evaluation that show he was a bad worker)

D. New Trials – Rule 59a. Granting a new trial is the universal clean-up method – something has happened

during the course of the trial that the judge thinks is a problem – error, prejudice, etc.

i. Ex. lawyer went nuts and prejudiced the jury, evidence is permitted by judge who then determines it should not have been included

b. Consequence is new trial NOT reversal of verdictc. Fundamental difference b/t standard for new trial and that for JNOV/summary

judgmenti. New trial – judge is assessing credibility – and can weigh evidence

1. Can grant a new trial, but not JNOV, when there is found to have been an injustice in particular aspect

2. Judge is required to give jury an awful lot of leeway – needs a “profound conviction that there has been a miscarriage of justice.”

d. Dadurian v. Underwriter’s at Lloyd’s of London – Jewelry Insurance Fraud Case, p.517-523

i. Standard for judge faced with motion: verdict is against the great weight of the evidence

ii. Motions for new trial will be addressed under abuse of discretion review (amounts to saying there is no reasonable way that lower judge would have reached this conclusion)

e. State and federal standards for both JMOL and new trial are different than federal standards

E. Other Techniques for Controlling Juriesa. Jury instructions

i. Judges more concerned with legal correctness than comprehensibility for many decades and often refused providing copies to juries

ii. Differs by stateiii. Judge may give very cursory instructions unless the counsel on either side

requests specific instructionsiv. Federal court: parties request

b. Form of the verdicti. General verdict – find for ∆ or ∏ with X amount

1. No explanation of how they ruled on sub-issuesii. General verdict with interrogatoriesiii. Special verdict – judge gives particular questions and verdict consists of

answers to the individual questions (with interrogatories- and if answers do not match up/reconcile…NEW TRIAL!!)

1. Breaks down the question to (hopefully) make it easierc. Judicial comment

i. Allowed by federal judgesii. Cannot simply say how they think case should come out

d. Juror misconducti. If proven, only possibility is for a new trial

e. Motions to Set Aside the Judgmenti. Rule 60(b) – sets out basis for reopening judgmentii. Judgment has become finaliii. Losing party comes forward to ask that judgment be reopened in order to get

a new trial1. Ex: default judgment entered and party was never served with process2. Ex: damage award based on lifelong injury when 18 months after

verdict the ∏ was up and working – did not reopen – said that technology had changed

PreclusionA. Introduction

a. Preclusion rules – umbrella term addressing legal rules regarding prohibition on subjects addressed in earlier litigation

B. Claim preclusion a. Claim preclusion = where a claim or part of a claim cannot be litigated; second

lawsuit involves something that while not litigated in first suit was part of the same claim

b. Ex. victim of someone else’s driving (he is injured, car is injured, painting in backseat is damaged) sues but only pleads for damage to himself and car – whether he wins or loses, if he attempts to bring suit for damages to painting or for intentional tort, he will be told that there can be no relitigation of any part of claim, including those that were not tried – claim preclusion = no damages for painting

c. A judgment resolves issues as to all claims (including those you brought and those you did not bring)

d. Dimensions of claimi. Majority view: single wrongful act

1. Most courts use what amounts to a “common nucleus test” (test used for transaction or occurrence for compulsory counterclaim)

2. Ex. A shoves B – single wrongful actii. Minority view: primary rights test

1. Primary rights test – limits preclusive effect of particular action only to subsequent actions involving the same legal rights (Carter v. Hinkle – Separate Property and Personal Injury Claims Case, p.591-594)

a. Ie. in a car accident, legal right to property damages to car and personal injury damages to self are separate and can be brought separately

2. Reasoning: differences in claims (SOL, assignment, etc.)3. Ex. A shoves B – breaks leg and rips pants – multiple rights

iii. In Ks with continuing obligations, one is obliged to sue for all performances of K as of the date of the suit that have not been carried out (ie. missed payments from time of K beginning to date of suit), and can sue again later for future issues with performance of K

iv. Scope of Claim Preclusion1. Only binds parties to the original suit (including represented entity if

represented [executor/estate, parent/child] and individuals whose rights derive from an original party [property holder whose predecessor was bound])

2. Position of parties: depends on whether there is a compulsory counterclaim rule

a. If no compulsory counterclaim rule and ∆ wants to bring claim :i. ∆ is not precluded from bringing own subsequent suit against

original ∏ involving same transaction or occurrencei. Exception: situation where same circumstances give rise

to both the defense to the claim and the counterclaim1. This occurs if basis of claim in second suit would

have been defense in first suit and ∆ losta. Equates to cancelling result of suit

2. If ∆ won in first suit, no contradiction would be present

b. If there is a compulsory counterclaim rule , ∆ who fails to bring the counterclaim, loses the right of action

3. Finality of judgment – only claim preclusion effect with final judgmentsa. If it has not been appealed, some states give finality and some do

notb. Rule 60(b) provides for relief from judgment in certain

circumstances4. Must be “on the merits”

a. Judgment is “on the merits” unless dismissed for lack of jurisdiction, improper venue, or nonjoinder/misjoinder of parties

b. Rule 41(b) says you cannot bring second case in same federal court as first case

c. If without prejudice has been stated, no judgment on the meritsd. Sometimes, dismissal for failure to comply with procedural aspects

does not preclude claimv. Exceptions

1. If you could have brought suit in court of general jurisdiction but chose court of limited jurisdiction, you will be precluded as to the whole thing

a. Unless a particular type of claim can only be adjudicated in a particular court

C. Issue preclusiona. Issue preclusion = a different cause of action regarding matters already litigated

i. Ex. suppose P sues D for trespass in January 2009, judgment issued, and sues six months later for trespass in June 2009 issue, question of who knows land came up in first suit and will come up again – preclusion = no relitigation of decided issues – of issues ACTUALLY LITIGATED- could be a problem with a general verdict – must know how the instant ISSUE was resolved before it can be precluded. Judgment must also support the final ruling. Issue must also have been sufficiently important in the first case – If peripheral in the first and central to the second, likely no preclusion.

b. Requires: i. Valid final judgment on meritsii. Must be able to identify issues that were decided in the first suit

1. This cannot be done with a general verdict2. With a specific verdict, can parse out the findings (ie. Sally was

negligent and Joe was not contributorily negligent)iii. Only applies to findings that, if different, would have led to a

different result in the case1. Issue determined must have been essential to the judgment – ie.

finding on the issue had to be what it was for outcome to turn out as it did

a. Ex. if elements A, B, and C are required of the claim and jury found in ∏’s favor, all elements had to have satisfied the standard

2. Note that in case of contributory negligence where ∏ was found contributorily negligent, finding of negligence of ∆ is not precluded – it would not have mattered in outcome

iv. Mutuality1. Traditionally – mutuality rule: only someone in first case can assert

(some states still use this)a. Effect: allows parties who lost in initial suit to relitigate with

stranger to suit on an issue that has already been decided against him

b. Trend is moving away from requirement of mutuality2. Vicarious liability exception: employee/employer (p.624-625)

a. Employer can assert nonmutual issue preclusion from prior case that said employee was not negligent (narrow exception)

b. Employee in some jurisdictions may assert nonmutual issue preclusion from prior case when employer won (broad exception)

3. Rejection of mutualitya. Defensive non-mutual issue preclusion : where ∏ sues ∆ and

loses and then sues another ∆, ∆ can use issue preclusion (ie. ∏ cannot sue on same claim but against different individual) (Bernhard v. Bank of America – Generous Check Writer Case, p.626)

b. Offensive nonmutual issue preclusion: where ∏ sues ∆ and wins and second ∏ sues ∆, second ∏ is permitted to utilize issue preclusion (Parklane Hosiery Co. v. Shore – SEC/Stockholders Case, p.629-632)

i. Court granted discretion to federal district judges to use with conditions:

1. Could second ∏ have participated in first suit? (if yes, disfavors preclusion)

2. Did ∆ have incentive to defend first suit? (if no, disfavors preclusion)

3. Did ∆ have procedural advantages in second suit that were lacking in first? (if yes, disfavors preclusion)

4. Were there earlier inconsistent judgments? (if yes, disfavors preclusion)

ii. Some states do not permit

c. Preclusion never applies to someone who has not litigated unless that party’s rights derive from someone who has litigated

d. Second suit must be on a different claim than first suit (ie. not invoke claim preclusion)

e. Cromwell v. County of Sac – Fraudulent Bonds Scheme Case, p.609-612i. Though individual that ∏ was in privity with already litigated, litigation was to

different bonds, so claim preclusion does not applyii. However, new ∏ was not allowed to litigate on whether bonds had been

obtained by fraud (issue precluded) but was entitled to prove that he had (1) procured instruments for value and (2) had no knowledge of the fraud

f. Litigants cannot re-open record on issues that have already been decidedg. Rios v. Davis – Three Car Accident Case, p.615-616

i. Where finding against a litigant has no bearing on the final outcome, issue preclusion does not apply

h. If you litigate previous claim yourself, are in privity with previous litigant, or were a member of a class that litigated, issue preclusion applies

i. Virtual representation (ie. in asbestos cases where determination against ∆ has been made and now many ∏s want to sue with issue precluded) is not allowed

j. Configuration of parties is irrelevant – can be on either sidek. Ks – if separate Ks, no preclusive effect on decisions re: earlier Ks

D. Problems of Federalisma. Full Faith and Credit questions – what preclusive effect must a second court apply to

judgment from first court when in different systems?b. State-to-State

i. Simpleii. Constitution requires second court to give same full faith and credit as the

first court wouldiii. Judgment has same preclusive effect in second state as it would in first stateiv. Outliers: second state permitted nonmutual issue preclusion where mutuality

was required in firstv. Majority of courts: same exact preclusive effect, neither more or less

c. State-to-Federali. Supreme Ct has held that federal courts must give same preclusive effect

that the state court would have givenii. Weird situations: state court litigated matter involving issues that could have

been brought under a federal claim, so second suit is now in federal court under this exclusive federal claim

iii. Federal courts are not free to make up own judgment on preclusive effectd. Federal-to-State or Federal-to-Federal

i. Federal question case1. State court must give same effect that federal court would have given

(federal law on preclusion)ii. Diversity case

1. Supreme Ct has held that federal common law of preclusion applies and federal courts will borrow preclusion law of state where first federal court sits

2. Sort of similar as state to state

Interpleader and the Class ActionA. Interpleader

a. Interpleader = procedure for resolving conflicting claims to a tangible res or a fund of money where stakeholder initiates action to force all claimants into a single proceeding

i. True interpleader – stakeholder has no claim to the resii. Proceeding in nature of interpleader – stakeholder claims to own the res or

does not think he owes anyone anything (but if he does, he does not know who)

b. Stakeholder = the individual in possession of the res (stake)c. Claimants = all claim an obligation is owed to them by stakeholderd. Process:

i. Stakeholder files action and joins claimants no rightii. Stakeholder usually deposits the res with the court to juryiii. Injunction prevents claimants forbidding claimants to seek interest in res

through other proceedings and protects stakeholderiv. Claimants litigate ownership – right to jury under 7th Amendmentv. Judgment binds all claimants – no further disputevi. P’s all fight it out.

e. Frequent use by insurance companies – where policy has maximum liability, company wants to insure all claimants divide that maximum in one suit so claimants cannot seek more money later

f. Two type available:i. Rule 22 Interpleader – only time to use is if there is no diversity

1. Stakeholder is the ∏2. Arises under state law most often, so complete diversity is needed (no

claimant from same state as stakeholder)3. Amount in controversy is $75,000 or more4. All claimants must be subject to standard rules for venue, personal jur.,

etc.5. Though standards are stricter, Rule 22 interpleader is useful if all

claimants are from same state but stakeholder is from different state6. (a) Grounds

a. By a ∏ – ∏ may join as ∆s persons with claims that may expose them to double or multiple liability; proper even though claims or titles lack a common origin or are adverse and independent OR ∏ denies liability in whole or in part

b. By a ∆ – ∆ exposed to similar liability may seek interpleader through crossclaim or counterclaim

7. This rules supplements and does not limit the joinder allowed in Rule 20, and in 28 U.S.C. §§ 1335, 1397, and 2361. Action under 28 U.S.C. §§ 1335, 1397, and 2361 must be conducted under these rules.

ii. Statutory interpleader 1. Derived from Federal Interpleader Act passed by Congress2. Standards are more flexible (minimal diversity, lower amount,

nationwide service of process, venue OK where any only claimant resides)

3. 28 U.S.C. § 1335 – Interpleader a. District courts shall have original jurisdiction of interpleader

actions for $500 or more if (1) two or more claimants of diverse citizenship claim and (2) ∏ deposited money or bond into registry of court

b. Person, firm, or corporationc. Stakeholder citizenship is irrelevantd. State Farm Fire & Casualty Co. v. Tashire – Bus Accident Case

i. Can be used to initiate action even when case against ∆ whom interpleader’s liability hinges on has not yet started

ii. Can be used to join all lawsuits related to interpleader’s interest (ie. all claims against the insurance company) but cannot be used to protect all ∆s, even the insured (ie. bus company and drivers) so that claimants can file against them in jurisdiction of choice

4. 28 U.S.C. § 1397 – Interpleader a. Civil action of interpleader or in nature of interpleader under

section 1335 may be brought in judicial district in which one or more of the claimants reside

5. 28 U.S.C. § 2361 – Process and Procedurea. For any action under section 1335, district court may issue its

process and order restraining them from proceeding with claim in other state or court affecting the item involved in interpleader action

b. Allows nationwide service of processc. Authorizes enjoining lawsuits in state and federal courts

6. 28 U.S.C. § 2283 – Anti-injunctiona. Federal court may not grant injunction to stay state court

proceeding unless authorized by Act of Congress, necessary in aid of its jurisdiction, or to protect or effectuate its judgments – this does not limit court’s ability under Rule 22

7. Important question to ask when attempting to centralize claims: is the fund the central element of the lawsuit or simply tangential?

a. If tangential, as in State Farm Fire & Casualty Co. v. Tashire, all actions will not be centralized

B. Class Action – diversity look to citizenship and AiC of representatives

a. Class action is an action where someone representing a much larger class sues or is sued on behalf of class (note: ∆ cases are rare)

b. If class action proceeds, even absentees who take no part in the judgment are bound by the judgment

c. Justification: important in civil rights cases (environment, school desegregation) of the 1960s where injunctive relief on behalf of group is sought, seeking shift in behavior by governmental units

d. Class actions for damagesi. Have become more common, seeking sum for corporationii. Ethical issues: built-in conflict of interest b/t lawyer for class and the class;

interest for any one member is modest (couple thousand dollars) but the interest of lawyer is huge; question of whose benefit the action is ultimately brought; questions about how lawyer conducts action

1. Corporation may be tempted to enter into settlement for generous sum to lawyer with little benefit to class

2. Coupon or free product settlementsiii. May be attractive to ∆ to settle who knows that individually sum to be gained

by ∏s is greater (sweetheart settlement)

iv. Possible for suit to come forward that would not normally be brought individually (ie. claims per person are $10 each) or where there is not much merit (ie. when sum is $10 mil and only have 1/10 chance of winning, award would still be $1 mil)

e. Representatives – self-select with oversight from courtf. Judgment is not absolutely determinative in class action – if new case is brought,

judge will have to ensure Rule 23 was satisfiedg. Class Action Fairness Act – 28 U.S.C. 1332(d)

i. Relaxes subject matter jurisdiction requirements making it considerably easier to bring into court

ii. Provides original jurisdiction where matter exceeds $5 million and citizenship of any member (not representative) of class of ∏s is different from any ∆ (minimal diversity)

iii. Supreme Court has yet to hear case under Class Action Fairness Act; quite complicated statute

iv. 1332(d)(3) requires court to use discretion to decline to entertain class actionv. 1332(d)(4) requires court to decline to exercise jurisdictionvi. 1332(d)(5) give situations when 2-4 do not applyvii. 1332(d)(11) – mass action

h. Rule 23 – Class Actioni. (a) There must be a class, identifiable group with sufficiently specific

definition (“poor people in the state” does not work) meeting four requirements:

1. Common question of law or fact2. So numerous that joinder of each is impracticable3. Class representative must have claim typical of members of the class

(ie. difference b/t alleged discrimination in promotion and alleged discrimination in hiring)

4. Representatives fairly and adequately protect interests of classii. (b) Three categories of class action (must fit into one):

1. (1) – “limited fund class action,” essentially a rule 19 case with many parties – (a) where separate actions would lead to inconsistent outcomes or (b) would be dispositive to interests of nonparties and impair ability to protect interests

a. Ex. class action as to who of large group gets share of insurance payout – everyone’s interest is adverse to everyone else

2. (2) – may look similar to 1(a), difference is that 1(a) asks if opposing party runs risk of inconsistent obligations (focus on opposing party and their problems) whereas b(2) requirement says opposing party acted on grounds applying generally to the class

a. Ex. many public interest suits – school desegregation, voting rights

3. (3) – damages class action – only requirement is that questions of law or fact common to class members predominate and class action is superior to other methods for adjudicating issue

a. Factors to consider: interest of class member to individually control prosecution or defense, extent and nature of existing litigation, desirability of particular forum, management difficulties (ie. how to manage 10,000 different actions for damages)

iii. (c) Provides that court must determine by order whether to certify action as a class action – forces the court to look at all criteria

1. Requires that (b)(3) class members be given opportunity to opt out of the class

2. Requires judgment take a particular formiv. (d) Allows court to issue orders to control anything going on in actionv. (e) Requires court approval of settlement of certified class action

1. If not certified, not binding2. Court must direct notice to all class members before any kind of

settlement, hold a hearing, hear any objections3. If a Rule 23(b)(3) action, court must notify all members to give

opportunity to opt outvi. (f) Permits an appeal to order denying certificationvii. Certification often ends lawsuit

1. If certified, class will likely settle2. If denied, action will likely be dismissed (claim to small to litigate

efficiently individually)viii. Potential problem not yet addressed by Supreme Court: where ∏ has right to

both damages and equitable relief…1. It would conflict with principle requiring all forms of relief sought to be

pleaded in one suit if only allowed to plead one or the other2. He brings 23(b)(2) suit without notification for equitable relief claim, it

would strip of rights for money damages without notificationix. Personal jurisdiction in class actions

1. Concern that ∏s are being dragged in much like ∆s and have property (a legal claim) which will be destroyed with either a settlement or an outright loss

2. Supreme Court has said that it is enough to give ∏s an opportunity to opt out

i. Hansberry v. Lee – Racially Restrictive Covenant Case; Class representative must be good representative – same interests

i. Lower court claimed that Hansberrys (black family being ejected by covenant) were bound as member of first action in Burke v. Kleiman which upheld covenant

ii. Supreme Court held that lower court erred1. Binding them to judgment violates due process rights under 14th

Amendment because no one in earlier case represented their interests, class in case construed only as those who wanted the covenant

iii. This constitutional issue rarely arises now if rules are followed – if operating within Rule 23, Constitution permits

j. Rule 23.1 – Derivative Actionsk. Rule 23.2 – Actions Relating to Unincorporated Associations