Civil Procedures

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Diversity Jurisdiction

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SCOTUS reads the statutory grant as requiring complete diversity – every P must be a citizen of a different state than every D (Strawbridge v. Curtiss)

28 USC 1332
• (a)(1): between citizens of different states
o Citizens on the same side of a controversy can be from the same state
• (a)(2): between citizens of a state and citizens or subjects of a foreign state
• (a)(3): between citizens of different states and in which citizens or subjects of a foreign state are additional parties
• GENERAL RULE FOR 1332(a): Can each P sue each D individually in federal court?
o No P can be a citizen of the same state as any D
o EXCEPTION: 1332(a)(3) allows P(NY) + P(Japan) v. D(VA) + D(France) even though Japan v. France would not be allowed by itself

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Natural Person's Citizenship

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for diversity jurisdiction purposes, citizenship of a state is controlled by federal law – citizenship in a state requires US citizenship + being domiciled in that state
• Domicile: where one resides AND where one intends to return to when away – you keep your domicile until you establish a new one by taking up a new residence with the intent to stay there
• Domicile at the time of filing is what matters (prevents jurisdictional manipulation and aids efficiency and predictability)
• Considerations: voter registration, job vs. student, driver’s license, living situation, etc.
• FOREIGN CITIZENSHIP IS DISREGARDED
• See Mas v. Perry

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Foreign Citizen's Lawfully Admitted Citizenship

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• 28 USC 1332(a)(2): courts lack jurisdiction over cases between citizens of a state and citizens of a foreign state lawfully in the US and domiciled in the same state
• Problem: P(VA) v. D(NY) + D(France, domiciled in VA) – does (a)(3) give jurisdiction? Probably not (Congress did not intend to create new jurisdiction), but it is unsettled

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Corporations Citizenship

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28 USC 1332(c)(1) deems corporations a citizen of every State and of every foreign state by which it has been incorporated AND of the State or foreign state where it has its principal place of business


UNINCORPORATED ASSOCIATIONS: a citizen of every state of which its members are citizens (this encompasses all entities that can sue or be sued but are not corporations)
• P(VA) v. D(Part. – NJ, VA, FL) is NOT allowed

PRINCIPAL PLACE OF BUSINESS
• Hertz Corp. v. Friend: the principal place of business is the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities (typically the HQ, but not always)
o Not always an easy test: high level officers might be spread around
o Corporations do not get to pick their own principal place of business – this would encourage forum shopping

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Amount in Controversy

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RULE: the amount in controversy must exceed $75,000 in value

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AFA Tours v. Whitchurch:

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unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith; it must appear to a legal certainty that the claim is really less than the jurisdictional amount to justify a dismissal
• INJUNCTION RULE: where the plaintiff seeks injunctive relief, the value of his claim is generally assessed with the reference to the right he seeks to protect and measured by the extent of the impairment to be prevented by the injunction – the court must look at past loses AND potential harm
o 2nd Cir. Test: How much would the plaintiff make if the defendant is enjoined versus if he is not enjoined?
o Alternative Test: How much does the defendant stand to profit if not enjoined?
• DAMAGES RULE: if punitive damages are permitted under the controlling law, the demand for such damages may be included in determining whether the jurisdictional amount is satisfied
o When punitive damages are available, the jurisdictional amount probably won’t prevent a suit – P can request whatever (s)he wants and it is difficult to say “to a legal certainty” that the amount is not met
• DECLARATORY RELIEF RULE: where P seeks a declaration as to the relationship between the parties, the value of the declaration is calculated like an injunction

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AGGREGATING CLAIMS

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• A single plaintiff CAN aggregate amounts if all counts are against the same defendant, even if the claims are unrelated
o Contrast: A single plaintiff CANNOT satisfy the requirement with two counts against two defendants
• Two plaintiffs CANNOT aggregate together against a single defendant, even if the claims arise from the same incident and are based on the same theory
o Contrast: Two plaintiffs CAN aggregate their claims against a single defendant if the claim being sought has a common and undivided interest

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St. Paul Mercury Indemnity:

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once jurisdiction attached, failure to win the proper amount or subsequent events that make it impossible to recover the amount in controversy minimum do not impact jurisdiction
• 28 USC 1332(b): when a P files suit in district court under 1332 and wins a judgment but is adjudged less than the jurisdictional amount, the court has discretion to (1) deny recoverable costs from the other side and (2) be ordered to pay these costs for the other side [e.g., filing fees, transcript fees, copying costs]

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Federal Question Jurisdiction

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28 USC 1331: “Shall have original jurisdiction over all actions arising under the Constitution and laws of the United States”


Two Ways to Have Federal Question Jurisdiction (Franchise Tax Board v. Construction Laborers Vacation Trust – Supreme Court case) OPERATES UNDER “well pleaded complaint” restriction
(1) Federal law creates the cause of action
• Most come under this first prong under rubric of Holmes Creation Test
• Does not matter if it is an application of this law to the facts of the case or if about the interpretation of the law either way its satisfies 1331
(2) The plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law (narrow category)
• A. If the dispute is about an interpretation of federal law = 1331 is satisfied
• B. If NOT above then go to (B) below
-----(a) Did Congress itself implicitly indicate that the presence of this federal issue in the plaintiff’s complaint does NOT merit jurisdiction under 1331?
-----(b) If Congress has NOT implicitly weighed in on whether the federal issue in the P’s complaint is enough to make the claim arise under federal law within the meaning of 1331, courts should conduct their own analysis, looking at factors of the sort catalogued in Grable and its progeny
28 USC 1338: district courts have jurisdiction over any action arising under acts of Congress relating to copyrights, patents, and trademarks
• Harms v. Eliscu: Art. III “ingredient test” does NOT apply to 1331/1338 analysis – federal law as an ingredient is not enough

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Well Pleaded Complaint

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• Focus on the “well-pleaded complaint” – a version of the plaintiff’s complaint that asserts the same causes of action as the plaintiff’s actual complaint but does NOT anticipate the defendant’s defenses or offer replies to those anticipated defenses
o Defendant’s defense / answer = irrelevant

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Merrell Dow v. Thompson:

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When a plaintiff bases an element of a state law cause of action on the violation of a federal duty, and there is no federal cause of action, there is no federal question jurisdiction (did not give private persons to sue under drug, food and cosmetics act = this makes it an unsubstantial issue)
• Congress had an obvious occasion to provide consumers with a federal cause of action but chose not to do so – Congress did not want these types of cases in federal court

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What is required for cause of action involving state law to have a federal element embedded in it to pass under federal question jurisdiction

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actors to Consider from Grable v. Darue and its progeny
1) If it is not in serious dispute (Gun) – won’t qualify for 1331
2) If it is in dispute – the nature of that dispute matters
a. Disputes that are fact bound and situation specific are less likely to trigger 1331 federal jurisdiction – then disputes that boil down to pure questions of law
b. How central is the issue? – if is the whole case boils down to this one dispute then satisfies 1331 (Grabble)
c. Issue must also be “important” (Grabble)
i. Gun clarifies what this means – important not just to those parties in the case but the federal system as a whole
3) Floodgates issue (Grabble) – Would this significantly increase cases going in to federal court? – If it does = a reason for the courts to say it doesn’t satisfy 1331

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Grable v. Darue

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Unlike Merrell Dow, Congress never had an occasion to consider the authorization of a federal cause of action parallel to the state cause of action, so the Court conducts its own analysis (held that the well pleaded complaint DID satisfy prong 2 of federal question for The P’s cause of action in State law that never the less had an “essential element” of federal law (IRS) embedded in it – passed above factors)

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Gunn v. Minton

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133 S. Ct. 1059 (2013), distilled this passage from Grable into four requirements: the federal issue must be (confirms Grabble – not many will satisfy this prong – Held the P’s claim did not satisfy the above factors c. – wasn’t important and 3 – would open the flood gates)

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SUPPLEMENTAL JURISDICTION

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Statutory grant of pendant/supplemental jurisdiction
• 1367(a): if there are certain “anchor claims” that satisfy federal subject matter jurisdiction in their own right, then federal courts also have jurisdiction over all related claims (Gibbs test)
o Anchor claims = claims that trigger jurisdiction on their own right
o Bring in claims that – have “nucleus of operative fact” – must pass Gibbs Tests
o GENERAL PROVISION – limited by (b) and (c)

United Mine Workers v. Gibbs: All claims that derive from the same nucleus of common fact are part of the same case; as long as the federal claim has substance sufficient to confer subject matter jurisdiction on the court, related state law claims have jurisdiction even though they wouldn’t absent the federal claim
- Gibbs Test = “the state and federal claims must derive from a common nucleus of operative fact”
- Includes pendant and party claim jurisdiction below

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United Mine Workers v. Gibbs:

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All claims that derive from the same nucleus of common fact are part of the same case; as long as the federal claim has substance sufficient to confer subject matter jurisdiction on the court, related state law claims have jurisdiction even though they wouldn’t absent the federal claim
- Gibbs Test = “the state and federal claims must derive from a common nucleus of operative fact”
- Includes pendant and party claim jurisdiction below

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PENDANT CLAIM JURISDICTION:

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if a state law claim derives from the same nucleus of common fact as a federal claim, then federal courts have jurisdiction (Gibbs test)
• P v. D
o Count I (federal cause of action)
o Count II (state-law claim arising from nucleus of common fact)

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PENDANT PARTY JURISDICTION:

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If P has a substantial federal claim against D1 and a sufficiently related state claim against D2, then P can proceed against D1 and D2 as a pendant party for Art. III purposes
• PVA v. D1VA + D2VA
o Count I: PVA v. D1VA (federal cause of action)
o Count II: PVA v. D2VA (related state-law claim)

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EXCEPTIONS TO SUPPLEMENTAL / PENDANT JURISDICTION

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• 1367(b): In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

• 1367(c): court can decline to exercise jurisdiction over
o (1) Claims raising complex or novel question of state law;
o (2) Claims that substantially predominate the claims over which the court has original jurisdiction;
o (3) the district court has dismissed all claims over which it has original jurisdicition
o (4) claims where, in exceptional circumstances, there are other compelling reasons to decline jurisdiction
o Example
• PTN v. DTN Count I arises under federal law within the meaning of § 1331 Count II is a related claim under state law
• Can dismiss if
• Count II predominates over count I
o (Count II predominates over count I – can only remand count II, can’t remand count I – can dismiss count II but stuck with count I – Always have to adjudicate )
• Dismissed count I
• Claim raises a complex or novel issue of State Law
• Discretionary – don’t have to decline jurisdiction but they can
• Partial codification of the rest of Gibbs

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3 Conditions to 1367(b) exception

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THREE CONDITIONS that all have to be satisfied for (b) to cut back on (a) (makes exceptions only when all three below are satisfied (would exclude Kroger)
1) The sole basis for jurisdiction of anchor claim is 1332 – “any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title
2) Fits one of the “alignments”
a. Alignments of 1367(b) - claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, or Rule 20 or 24
i. Rule 20 most important – lets multiple plaintiff join together and file a joint complaint and also lets there be multiple defendants in one plaintiffs complaint
3) Would be inconsistant with § 1332 requirements
a. i.e. – don’t satisfy the amount in controversy or no diversity

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Exxon Mobile v. Allapattah Services

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1367 can be read as creating a loophole to diversity jurisdiction by allowing a Rule 20 plaintiff from the same state as the defendant to pursue a claim
-----(a) P1VA, $100K + P2NY v. DNY - - works under Exxon NOT under Pfander

-----(b) Pfander’s Theory: So long as one non-diverse party is in the complaint, the district court lacks subject matter jurisdiction over the entire civil action
• Says 1331 works differently than 1332 – you can know whether a particular claim triggers (a) without any information about the other parties, with 1332 however need this information and to pass (a) need to satisfy 1332 completely

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Removal Jurisdiction

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• 1441(a): (BASIC TEST) – Actions for which federal district courts have original jurisdiction can be removed to the district court BY THE DEFEDANT
o TEST: if this complaint had been filed in federal district court, would there be jurisdiction? –
• Complaint = the whole case not individual claims, case by case not claim by claim
o Assertion of a federal counterclaim against a P’s claim does NOT make the case removable – P does not become a D for removal purposes (Shamrock Oil v. Gas Co. is an example of this)
o Fraudulent Joinder: if P sues an out of state party and parties in his state just to destroy diversity jurisdiction, the fraudulent parties can be disregarded (Rose v. Giamatti)

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Exceptions to Removal Jurisdiction

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• 1441(b): (EXCEPTIONS TO (a)) – A civil action otherwise removable solely under 1332(a) may not be removed if any parties properly served are a citizen of the state in which the suit is brought
o Example = PVA v. D1NY + D2KS in Kansas state court (if sole basis for federal jurisdiction is § 1332)
o Have limited amount of time to remove the case starting from the realization that the plaintiff’s case could qualify for federal jurisdiction

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Slight Expansion to Removal Jurisdiction

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• 1441(c): (SLIGHT EXANPTION of (a)) – if P files a multi-count complaint in state court and one or more of those claims arises under federal law under 1331 but also asserts one or more other claims not under federal or supplemental jurisdiction or otherwise made non-removable, D can remove the federal claims to federal court while state claims proceed in state court
o 1441(c)(2): federal court MUST sever claims over which it lacks original jurisdiction and remand them back to state court
o PVA v. DVA
• Count I arises under federal law within the meaning of § 1331
• Count II is an unrelated state-law claim

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Procedures for Removal

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28 USC 1446: Procedures for Removal
• 1446(a): D must file a notice of removal in the appropriate federal district court – must make a short and plain statement of basis for removal
• 1446(d): Promptly after filing in federal court, D must notify all adverse parties in writing and notify the state court – this effects removal and the state proceedings stop unless and until the case is remanded
o P can make a motion to remand in federal court
• 1446(b): If P sues in state court with a removable claim, then notice of removal must be made within 30 days of D’s receipt of the complaint
o SCOTUS: 30 day period begins to run only if the D had appeared or has been summoned to appear in the state court, even if P’s lawyer sent a courtesy copy of the complaint
o (b)(3): If P amends the complaint to make a non-removable complaint removable OR if P filed some other paper in state court that makes it appear that he relies on a theory arising under federal law/diversity can be met, then the deadline starts with receipt of that paper
o (b)(2): Unanimity Requirement: All Ds must join in or consent to the removal action; if Ds are served at different times, their 30 day windows run independent of each other
• 28 USC 1441(e): No unanimity requirement for mass tort actions
• 1446(c): There is an ABSOLUTE ONE-YEAR DEADLINE for removal based on diversity jurisdiction
o Does not apply if P acted in bad faith to prevent D from removing the action

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Remanding to State Court

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28 USC 1447: Remanding to State Court
• 1447(c): (JURISDICTIONAL DEFECT) if a case is filed in state court and removed to federal court, it SHALL be remanded if at any time before final judgment the court determines it lacks subject matter jurisdiction
• 1447(c): (PROCEDURAL DEFECT) remanding for “other defects” – procedural (not subject matter, eg defects with the removal itself – no unanimity; D has engaged in extensive discovery or filing a dispositive motion in state court; untimely filing of removal notice) - the party requesting a remand can motion to remand within 30 days of filing of the notice of removal in federal court
• This is waivable if not made in the 30 day time limit
• 1447(e): if, after removal, P seeks to join additional Ds whose joinders would destroy subject matter jurisdiction, the court has the discretion either to deny joinder or to permit joinder and remand back to state court
• Limits opportunity for gamesmanship – don’t want P to see if federal court seems good if not then add D that would have them remanded
• Carnegie-Mellon v. Cohill: district courts can remand suits where, if they had been filed in district court to begin with, the court could have dismissed all of the claims
o E.g., remand a 1367(c) discretionary supplemental jurisdiction state law claim

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Pennoyer v. Neff:

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A state court judgment rendered in a state exceeding the territorial limits on its personal jurisdiction cannot validly be enforced, even in the state that rendered it
• In an in personam proceeding, the D must either voluntarily appear of be given personal service within the state (consent or presence)
• DPC: where the D does not owe allegiance to the state, state law cannot authorize personal jurisdiction absent a voluntary appearance or personal service of process within the state
• Brief Facts – Defendant Neff was being sued by Mitchell in Oregon for unpaid legal fees. A default judgment was entered against Defendant for his failure to come to court or otherwise resist the lawsuit, despite the fact that he was not personally served with process, nor was a resident of Oregon.
o Later, in an attempt to collect upon his judgment, Mitchell attached land located in Oregon belonging to Defendant, and had it sold to Plaintiff Pennoyer through a Sheriff’s sale.

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International Shoe v. Washington:

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DPC requires only that in order to subject a defendant to a judgment in personam, if he is not present in the territory of the forum, he have certain minimum contacts with the state consistent with traditional notions of fair play and substantial justice
• If minimum contacts are met, then process can be served beyond a state’s borders
• SPECIFIC JURISDICTION: specific to the particular cause of action asserted
• GENERAL JURISDICTION: connection to the state is so great that he can be sued there on any matter at all

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Hess v. Pawloski:

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It is a valid exercise of state power to require, as a condition of exercising a privilege, that the actor agree to allow the appointment of an in-state agent to receive service of process

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Specific Personal Jurisdiction Rule

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To determine whether a state court can assert personal jurisdiction over a particular person with respect to a particular claim, ask two questions:
(1) Does state law purport to authorize this assertion of personal jurisdiction?
(2) If so, is the state law valid as applied to this case – that is, would the state court’s assertion of personal jurisdiction here violate the federal Constitution?
a. International Shoe established the “minimum contacts” test to decide whether it is constitutional for a state to assert in personam jurisdiction over an un-consenting defendant who has not been served with process inside the state’s borders

Minimum Contacts Test: if D owes no allegiance to the state and is outside of its borders, if D has enough relevant contacts with the state, he can be served so long as fair play and substantial justice are satisfied

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General Rule for Minimum Contacts Test

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• If D does NOT
o 1) Meet purposeful availment test (below in WW Volkswagon)
o 2) Meet the Calder effects test
• = MOST LIKELY WONT PASS MINIMUM CONTACTS TEST

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Hanson v. Denkla:

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mere unilateral activity cannot satisfy the requirement of contact with the forum state – P, living in PA, entered into a k with DE then moves to FL – P’s unilateral move to FL does not implicate contact between D and FL such that FL could assert personal jurisdiction
o D must purposefully avail itself of the benefits of a state’s law – did not happen here
o Easier to pass minimum contacts when the defendant specifically reaches out to do activity in their case

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McGee v. Int’l Life Insurance:

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quantity and quality of contacts matter –
o Quality is higher if it
• (1) relates to the substantive claim asserted against the D and
• (2) reflects a purposeful dealing between the D and the forum state
o Specific jurisdiction: CA can assert jurisdiction with respect to this one claim in which the company reached out to CA for the purposes of entering into a k
o Held - The insurance company had this only contact with McGee – this was a high quality contact – had deliberately reached out Franklin in California (2) – was subject

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Gray v. American Radiator:

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(NY type Long Arm statute) “Committing a tortious act” means you can sue an out of state company that’s tortious act proximately caused injury in your state

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World-Wide Volkswagen v. Woodson:

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Minimum Contacts Test Further Clarfied for Cos.)
o Foreseeability alone is not enough for personal jurisidiction
o Puposeful Availment Test – “the D’s conduct and connections with the forum state must be such that he should reasonably anticipate being haled into court there”
• Suggests the manufacturer needs to be targeting a state in some way might be that they expect will be delivered but not done deliberately} this apparent divergence important for next couple cases courts divided which one to choose
• The actions of a single P bringing a company’s product into a new forum state is not sufficient to allow that state to assert personal jurisdiction
o Brennan Dissent
• 1) Wants to get away from defendant focus of Shoe and Neff; instead of just looking at D’s contacts with the states – wants the plaintiff’s interest to be considered as well = fact that D’s contacts are minimal shouldn’t prevent OK from litigating if OK has strong interest or P having interest in OK
• 2) Still Brennan would find would meet Minimum Contacts test → talk about stream of commerce → he believe steam of commerce continues with customer’s use of that product

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Keeton v. Hustler:

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if the D has the necessary minimum contacts with the forum state, it does not violate the Constitution for a suit to proceed even if the P does NOT have any contacts with the state

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Burger King v. Rudzewiz:

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if the P has strong contacts with the forum state and the state has a strong interest in the litigation, it can sometimes be ok for a D without sufficient contacts in the forum state to be sued there
• The DPC prevents a state from asserting long-arm jurisdiction over a non-consenting D without some contacts; P’s contacts and state interest matter at the margin – they can shape how MUCH contact from the D is required, but there must always be SOME contact
• D had “substantial and continuing” relationship with P in the forum state and could reasonably have foreseen being sued there on a breach of contract claim

Modern courts use different language say divided into two part
o 1) minimum contacts and
o 2) reasonableness
• Key point focuses mostly on the D’s contacts but precise amount of contact depends on plaintiff’s interests, forum state interest or the greater factor (weighed more heavily) of the of the defendant’s burden

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Asahi Metal Industry v. Superior Court:

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As a general rule, in order for contacts to satisfy the minimum contacts test, there must be a connection brought about by the D purposefully directed at the forum state → PURPOSEFUL AVAILMENT
• Possible sufficient evidence of targeting
o Advertising/designing specifically for the forum state
o Establishing channels for providing regular advice to consumers
o Marketing the product through a distributor who agrees to sell the product in the target state
• Five Factor Test for “Traditional Notions of Fair Play”
o What is the burden on the D?
o What are the interests of the forum state in the litigation?
o What are the interests of the P in litigating the matter in the state?
o Does allowing jurisdiction serve interstate efficiency?
o Does allowing jurisdiction serve interstate policy interests?

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J. McIntyre Machinery v. Nicastro:

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CULTIVATE US MARKETS

A court may not exercise jurisdiction over a defendant that has not purposefully availed itself of doing business in the jurisdiction or placed goods in the stream of commerce in the expectation they would be purchased in the jurisdiction (O’Connor’s Asahi test)
• Kennedy plurality: Look for a manifest intent to subject oneself to the will of the sovereign; must avail yourself of the specific market
• Breyer concurrence: If more machines were flowing in, the maybe the requirement is satisfied; a single, insolated sale is not enough, even if the D put the item in the stream of commerce knowing or hoping for it to reach the forum state
• Ginsburg dissent: Targeting the US market is equivalent to targeting every state

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SPECIFIC JURISDICTION: GENERAL RULES

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• Breach of Contract: Where a party deliberately reaches out to the forum state to form the k at issue, contemplating further consequences in the forum state, this is sufficient to satisfy the minimum contacts test (McGee & Burger King)
• Tort Cases: If a product is purposely sent into a state and it is defective there, that state can adjudicate the case (J. McIntyre)
o If seller sent product and cultivate demand in that state → courts likely to conclude can be brought into the p.j. of forum state
o If seller didn’t send product to forum state or try to cultivate demand in the state – doesn’t meet minimum contacts just happen to end up in
o Middle ground – if substantial flow of the products into the forum state will meet minimum contacts test based on quantity even if self not targeting forum state
• Intentional Torts: Where a tortious act is deliberately aimed at a target state, that state can assert personal jurisdiction – the “effects test” can allow a state to assert jurisdiction over someone who has not purposefully availed himself of the target state but who HAS purposefully targeted the action at the state (Calder v. Jones)
o Adf Calder v. Jones} Jones sued for defamation the author of the article and editor of the article as a whole both lived and worked in Florida – argued no P.J. in Cali
• “the Calder effects test”: “To satisfy this test the defendant must have
• 1. Committed an intentional act, which was
• 2. Expressly aimed at the forum state, and
• 3. Caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state.’”
• What are the constitutional limitations all about
o White in WWVW – contacts test severs two functions (111*)
• 1) Protects the defendant from burden going to distant state for jurisdiction
• 2) “Ensures that the States, through their courts, do not reach→ sovereign authority, constitution prevents states from – protects each states sovereignty
• Couple years later in 1982 – revised his statement – said was just #1 – main point protect individual defendants as a said affect may protect the sovereignty of the states
• International shoe relaxed this idea
• But still at play when thinking how much to relax this idea
• Don’t tell us where to draw the necessary lines – just says NJ can’t boss around anyone threw out the world – once start drawing some lines – some notion of purposeful availment is as good as another – sovereignty just saying need to draw that line

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General Jurisdiction

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Contacts are so strong and pervasive that the D can be sued in that state for any claim
➢ General jurisdiction is likely to be pretty unusual – if not incorporated or doesn’t have principle place of business there – possibility they can but seems will be rare
➢ Specific jurisdiction of out of state defendant more common

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Perkins v. Benguet:

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General Jurisdiction
Ohio can assert general jurisdiction over a defendant company that, though incorporated in the Philippines, operated out of Ohio during WWII

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Goodyear v. Brown:

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General Jurisdiction

A state can assert general jurisdiction over foreign corporations if the affiliations with the state are so continuous and systematic as to render them essentially at home in the forum state [analogize corporate home to personal domicile]
• NC cannot assert general jurisdiction over a foreign subsidiary based on a stream of commerce theory – this theory is only germane to specific jurisdiction inquiry

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DaimlerChrysler AG v. Bauman

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General Jurisdiction - NEW CASE


o Argentina’s Mercedes Benz Argentina – P allege collaborated with Argentina government to kidnap torture and kill during “dirty war” – claim have right of action against German Parent company – sued them in California \4K1A –
• Cali state law allows the full extent of personal jurisdiction –
• So question is whether constitutional to have Gen PJ over German company Didn’t have minimum contacts – dismissed
o BUT 9th circuit courts reversed – had enough contacts with Mercedes USA – and pierced corporate veil – said if USA has minimum contacts with California then so does the German parent company –
o Question of whether can attribute the contacts the parent company – Obama seems to be on German side – likely to be reversed

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General Jurisdiction Rule

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• A series of small contacts unrelated to the litigation contact can add up to a grant of general personal jurisdiction
o Perkins: no litigation-related activities, but sufficient other contacts to permit general personal jurisdiction
o McGee: one litigation-related contact is so strong that the absence of all other contacts is sufficient to permit general personal jurisdiction

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The impact of the internet – PERSONAL JURISDICTION
- 4 types of websites

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2. Zippo Case – defines 4 types of websites
1. Passive Websites – page of information about company but all it does – one way transaction
a. If Don’t accept orders over the internet but do have passive website showing the product
i. EX. Someone in OK – see this and goes to PA and buys the product and brings it home – doesn’t tell that going to bring it back to OK
ii. Product malfunctions and injures her – sues in OK – does the constitution prevent jurisdiction – YES – purely passive website less reaching out just posting on the WWW – if want to deal with you
1. Similar to the World-Wide VW case
b. Most courts would say unless there is something more – some others facts can’t have PJ – fact that can access this website in OK
i. If advertised in OK about the website, some evidence targeted the OK market then that would be enough even if website passive and doesn’t establish contact could be established else where
2. Interactive Websites – permit exchange of information as a prelude that sets up interaction that will happen not online (i.e. buy clothes online and come to you)
a. If ship orders and mails it to those home states – meets the availment test (some courts might say depends on the volume of business)
b. Internet makes it more likely that this fact pattern will occur
3. Active Websites – are themselves vehicles for entering contracts and doing business i.e. software website – streams software to persons computer
a. Sell software can download over the internet –
i. Ex. OK person downloads on of the programs – later sues for product giving computer a virus – if OK has PJ does constitution stand in the way?
ii. If don’t meet minimum contacts test → but knew from the interaction that there was a regular flow of people from OK who bought your product would this be availing yourself like sending the physical products → this fact pattern couldn’t have come up before the internet
b. Before the internet didn’t have this question so existing doctrine didn’t have all the answers – will require the courts to think about how to apply principles even if don’t make new ones
c. Contract cases over the internet – if form a contract online where is that contract made – depends on the facts of the case – don’t need new principles but will need to apply exisiting principles to this fact pattern

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3. COMMUNITY TRUST BANCORP v. COMMUNITY TRUST FIN.

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Kentucky – sued them in Kentucky for trademark infringement claims – D argued no contact with Kentucky, federal court – only had jurisdiction if state court did
2. 6th Circuit} says look at likelihood of confusion – those in KY who have accounts had to go to physical location in Texas to be able to get this online access – presumably know who they are dealing with there – can’t be based on these 6 people cause know who dealing with – concern is other people who might be confused and with respect to those people – haven’t reach out to those people or trying to get them to use their bank
a. Aren’t availing themselves
b. Is trademark infringement? → not expressly aimed at person being defamed in the state, maybe not so readily used in trademark infringement – might have a better shot with different claims

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Quasi in Rem Jurisdiction

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(isn’t used that much anymore)
• Court attached property of the D by issuing an order exerting control over property
• Maximum recovery available is the value of the attached property, which is sold at auction to satisfy the judgment, with excess funds returned to D
• The claim does NOT need to relate to the property
Harris v. Bulk = (OLD UNDERSTANDING)
• Key issue was presence in the state – just needed to attach the property while it was in the state
Shaffer v. Heitner: To assess quasi in rem jurisdictional tests, apply the same test for in personam jurisdiction (minimum contacts), with no jurisdiction unless the test is satisfied
• Owning property in the state does not give the state general jurisdiction over the D – must have other contacts with the state
• As a practical matter, just pursue in personam jurisdiction
o Eliminate incentive to use quasi in rem when don’t have personal jurisdiction over defendant want to bring in a specific state court
o But still may want to use quasi in rem – depending on the state’s long arm statutes} if quasi in rem isn’t as restricted at personum jurisdiction

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In Rem Jurisdiction

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• The suit is about the property itself – everybody is a party because the suit is about establishing rights
• Shaffer dicta indicates that the quasi in rem rule might apply
• As a practical matter, in a suit about who owns property, the presence of the property is a relevant litigation-specific contact that probably satisfies minimum contacts test

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Personal jurisdiction based upon physical presence at the time of service

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• Burnham v. Superior Court: State law can allow state courts to assert in personam jurisdiction over persons served with process in the state (who are present voluntarily) without regard to additional contacts in the state (suit can have nothing to do with that state)
o Scalia: used only tradition as a justification – was allowed at the time the Due Process Clause was ratified therefore is OK
o Brennan: disagrees with Scalia – mere presence in insufficient; however DOES satisfy modern notions of fair play and due process
• Tradition (the historical support for transient jurisdiction) – is a factor not dispositive
• BUT –
• By being present in the state you DO avail yourself – voluntary reliance on state social services (i.e. receive benefits including using roads, police etc.)
• AND there the slightness of the burden on D = no DPC violation
o DOES NOT EXTEND TO CORPORATIONS – only individuals

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Personal jurisdiction based upon consent

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All state laws allow state courts to assert personal jurisdiction over consenting defendants, and this is perfectly constitutional

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Prospective Consent to Personal Jurisdiction

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ranted before litigation
• Consent By Contract: Forum Selection Clauses: parties agree by k to litigate any disputes arising under the k in a certain court
o Clause will be enforceable unless courts find them to be unreasonable based on Carnival Cruise Lines v. Shute – seems unlikely the court will find it unreasonable (absent of individualized negotiation over the contract was take it of leave it) (the case did mention benefits of the clause – less expensive for cruise line and cheaper tickets)
• Bremen v. Zapata and Carnival Cruise Lines v. Shute hold that the DPC allows courts to enforce forum selection clauses, even when those clauses are exclusive and force litigation into one court instead of giving options
• State doesn’t have to recognize this consent but federal law will not stand in their way
o Forum Selection Clause Main Point
• If D has contractually agreed to – the law of that state will likely authorize the forum to assert that jurisdiction and constitution won’t prevent this
• If the parties have also agreed not to proceed else where – the state and federal courts will block the ability for the other non-agreed upon forums and dismiss the case

• Consent By Registration
o Many states have laws saying out of state corps have to register in the state to do business there (Similar to Hess – but for corporations)
o Circuit split over whether this registration = consent to general jurisdiction
• The Goodyear case – indicated constitution prevents states from having general jurisdiction if not “at home” in the state – but this register consent could get around this – but circuit is split

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Personal jurisdiction in federal district courts

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For a federal district court to have personal jurisdiction ask two questions:
1) Does federal law purport to authorize the federal district court to assert personal jurisdiction over the defending party in this case?
a. Fed. Rule of Civ. Pro 4(k) = the federal law rules this issue
b. Rule 4(k): Personal Jurisdiction
i. 4(k)(1)(a): Baseline rule
ii. 4(k)(1)(b): “100-mile bulge rule” for parties joined under Rule 14 or Rule 19
iii. 4(k)(1)(c): Accommodation of special provisions in federal statutes authorizing nationwide service or process
iv. Congress gave the Supreme Court the power to make these rule therefore = federal law
2) If federal law does purport to authorize this assertion of personal jurisdiction, does the federal Constitution prohibit it?
a. This out limit is dictated by the 5th Amendment – federal Due Process Clause → restrict personal jurisdiction that federal can give to federal courts
b. In general can authorize district courts to have PJ where person has minimum contacts with the country as a whole
i. Or consent, of physical presence etc.
The territorial jurisdiction of the US extends throughout the entire country – so long as there are certain minimum contacts with the US on the whole, any federal district court COULD assert personal jurisdiction over any D satisfying the test

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Rule 4(k)(1)(a):

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authorizes the federal district courts to assert personal jurisdiction over a defending party if the regular state courts of the state in which the federal district court is located would have personal jurisdiction over the defending party in this case.
• Personal jurisdiction of the federal courts is hitched to (piggy backed) the personal jurisdiction of the state courts in the state where the federal district court sits
• Therefore ask the same two questions the state court would ask
o 1. Does the long arm statute in which the federal court is located allow PJ over this defendant
o 2. Constitutional – does the defendant have the minimum contacts with the state the federal court is located
• In the ordinary case won’t have to worry about this second step, because it will always be satisfied since you’ve already determined that it would be constitutional for a state court to assert personal jurisdiction over the defending party. Whenever that’s true, it would also be constitutional for a federal court located in the same state (or indeed anywhere in the country?) to assert personal jurisdiction over the defending party.

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Rule 4(k)(1)(b):

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If a party is joined under Rule 14 or Rule 19, the third-party defendant must be served with process within 100 miles (no requirement that he live in that “bulge”)
• Called the “bulge” rule because – lets the PJ of some federal courts (those near state boarders) “bulge” out beyond their boarders

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Rule 4(k)(1)(c):

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Federal statutes can authorize assertion of personal jurisdiction (nationwide service of process) – if a covered claim in filed, the district court can serve process to the D wherever he is in the US

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Rule 4(k)(2):

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Federal district court can assert personal jurisdiction to the extent that the Constitution allows and not forbidden by statute if
(1) the substantive claim being adjudicated arises under federal law AND
(2) the D is NOT subject to the regular personal jurisdiction of any state (or DC or PR)
• The P wants to sue D – and D no minimum contacts with any state
but does have contacts with the U.S. as a whole

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Fed Rule of Civ. Pro 12

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Personal Jurisdiction by Consent Inferred from Litigant’s Behavior

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How to object to personal jurisdiction

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• 12(a): D has 21 days from service of process to respond by submitting an answer or making a pre-answer motion permitted by Rule 12
o 12(a)(4): If the court is considering a motion to dismiss, then there is no need to file an answer
• 12(a)(4)(1): If the motion is denied, you get 14 days to file an answer

• 12(b): says if you’re going to assert a motion in 12(b) – need to make that motion before you submit your answer – can raise them in your answer if you don’t file a rule 12 motion
o Have a choice
• File 12(b) motion OR
• Prepare an answer – but can object to PJ as a defense in this answer
• If choose #2 route – not asking for anything at this time – should follow on issue quickly – if don’t say anything until after trial that will be too late – will hold he has forfeited his right to this claim not because of rue 12 but because of his consequential trial behavior
• In most cases the defendant will file a rule 12 motion (#1) – before they go to the trouble of filing an answer

• 12(h)(1)(A): A party waives each of the defenses in 12(b)(1)-(5) – when file one of these waive the right to object based on these reasons
o Therefore if object based on another question – can’t object to personal jurisdiction – consent to the court’s personal jurisdiction)
o Didn’t file a motion under rule 12 -

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Objections to Personal Jurisdiction in State Court

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• Most states are modeled on the Federal Rules (12)
• Special Appearance: In certain state court systems, a D challenges personal jurisdiction but does NOT appear in court in a way that consents to jurisdictionsd
o Want to argue why the court doesn’t have personal jurisdiction – but don’t want to be subject to personal jurisdiction by consent based on your appearance; appearing for a limited reason
• General Appearance = the opposite of the special appears; all other appearance – allow personal jurisdiction by consent –
o Responding to P on the merits – this is general jurisdiction = consenting to Personal Jurisdiction = tacit consent in litigation is enough for PJ
o Can call it waiver or forfeiture – right to not being subject to PJ of courts can waive this rights
• Waiver = knowingly giving up this right
• Forfeiture = gave up this right inadvertently

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PROVIDING NOTICE AND AN OPPORTUNITY TO BE HEARD
General Rule

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(1) What does the relevant rule/statute require in terms of notice?
(2) Does the Constitution require something more?
• 14th Amnendment for states –
• 5th Amendment for federal –
o Dues Process –
• Need to give parties notice
• And give opportunity to be heard

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Providing Notice Rule Defined

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Mullane v. Central Hanover Bank & Trust: To satisfy the minimum requirements of due process, the notice must
• 1) Either be reasonably calculated (under all the circumstances) to inform the parties OR
• 2) Where that is not feasible, the form of notice chosen must not be substantially less likely to bring home notice than other of the feasible and customary substitutes
o (Very fact specific test – under totality of the circumstances) Totality of the circumstances test: the court’s inquiry into reasonable certainty should consider the nature of the interest at stake, representation by proxy, costs, etc.
• Making a cost benefit calculus – consider
• Amount property (tangible or not) is worth
• The costs of finding people’s address and giving this notice
o Not every beneficiary must be informed: notice can be constructive (if other beneficiaries will know that is enough)

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Jones v. Flowers:

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PROPER NOTICE RULE
At minimum, if a certified letter of notice is returned, the same notice should be sent by regular mail – when the property interests are important, there must be “reasonable additional steps” to provide notice if a conventional method of notice fails

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Dusenberry:

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PROPER NOTICE RULE
It is ok if notice reasonably likely to reach someone doesn’t actually reach that party

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Sniadach v. Family Finance Corp.:

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OPPORTUNITY TO BE HEARD

State law cannot allow a creditor to file a suit against a debtor and at the SAME TIME get the court to order the garnishment of the debtor’s salary until the end of the case, to be held in a separate fund for disposition by the court
o Plaintiff had no property interests in the wages – violates the due process clause
• Type of property at stake – we deal here with wages – as a practicle matter a defendant who has half their wages taken – will be under a lot of pressure
• Insufficient safeguards in the system
• Questions of fact exist that are best resolved in the adversarial process

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Matthews v. Eldridge:

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OPPORTUNITY TO BE HEARD ANALYSIS

Fact-intensive cost/benefit test to determine whether extra procedural benefits outweigh their costs
o (1) D’s private interest harmed by the pre-judgment attachment
• This case} P’s interest was significant – taints credit etc. – deprived of significant interest
o (2) Risk that the procedures will lead to an erroneous deprivation
• This case} was substantial only a skeletal avadavat was necessary – judge couldn’t make a realistic conclusion on this one sided fling
o (3) Interest of the party seeking the attachment/government interest involved
• This case} P’s interest weren’t strong – had no pre existing interest in D’s home

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What do the opportunity to be heard cases mean for quasi in rem cases?

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➢ Some courts think that these line of cases restrict states for ordering quasi in rem attachment for jurisdiction without prior notice and opportunity to be heard
➢ Other courts say – can do quasi in rem if in personma isn’t available otherwise do in personam
• Not clear what this will mean – at least raises question about taking property even for quasi in rem jurisdiction
• Might say not allowed under these cases
• Upheld on basis of history
• Or some other ground to distinguish – immediately can get lean dissolved but submitting self to in personam jurisdiction

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Fuentz v. Mitchell

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OPPORTUNITY TO BE HEARD

• Fuentes v. Shevin: State law cannot allow a creditor to post a bond and have the sheriff seize goods at the same time of service of process, with an opportunity for D to post a counter-bond
o Property where both people have interest in the property – company retained the right of them until made payments of on them but keep them unless
• Interference with a possessory interest – D has interest in the property
• Must afford the defendant a preliminary hearing in court
• Not clear how this is good for the low income people – will raise the cost of renting things
• Also D has a interest in the P paying therefore unlikely to lie about this
• Mitchell v. WT Grant: State law CAN allow a creditor to sequester property in default without a preliminary hearing when the debtor can immediately seek dissolution of the grant of sequestration unless the creditor proves certain facts
o The post-deprivation hearing satisfies the DPC: unlike Sniadach, the creditor here has a prior interest in the property

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Venue

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Venue: A limitation, separate and distinct from jurisdictional limitations, affecting which courts within a judicial system can hear a complaint
• State Venue} determined by state statutes, regulate the proper counties
o Federal constitution – doesn’t do much to restrict state’s venue requirements (unlike PJ and SMJ) - states therefore have free hand difference states do things in different ways need to look at the statute
• Federal Venue = 28 U.S.C. § 1391 - regulates the federal district for complaints filed by plaintiffs

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Federal Venue Rule

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28 USC 1391: Restricts where P can file, but the concept of venue does not restrict D’s ability to file counterclaims or implead third parties to the suit
• 28 USC 1391(b): Basic Test:
1) If one or multiple Ds all in the same state
a. Paragraph (1) adds that if there is a state in which all of the defendants “reside[]” (as determined according to § 1391(c) and (d)), venue is also proper in any judicial district within that state in which any one of the defendants resides.
2) Substantial part of where events or omissions giving rise to the claims occurred
a. Paragraph (2) makes venue proper in any federal judicial district “in which a substantial part of the events or omissions giving rise to the claim occurred.”
3) Rare to use only used of 1 and 2 fail – if using paragraph 3 ALMOST CERTAINLY WRONG – no

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define residency for purposes of applying § 1391(b)(1).
(individuals, entities and corps)

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28 USC § 1391(c) and (d) o 28 USC 1391(c)(1): For individuals, residence = domicile

o 28 USC 1391(c)(2): For artificial legal entities that can sue and be sued (not just corporations), these entities reside in any federal district that has personal jurisdiction
• Only think about this for Ds NOT Ps

o 28 USC 1391(d): (refines corporations) – In states with multiple federal judicial districts, a corporation subject to personal jurisdiction in the state shall be deemed to reside in any district within the state for which its contacts would be sufficient for personal jurisdiction if the district were a separate state
• Does the long arm statute reaches the corp. then proceed to separate question – if were its own state would it pass minimum contacts test – if both yes – then corporation does reside in this judicial district
• When contacts spread throughout the state – in such a way wouldn’t have minimum contacts with any district in the state – in this unusual situation – reside in whatever district have most significant contacts with

o 28 USC 1391(c)(3): “a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.”
• Example - P v. D1indiv. resident of VA (and, in particular, E.D. Va.) + D2does not reside in the United States
• So for venue purposes it is as if only one defendant in

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Bates v. C&S Adjusters, Inc.}

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Additional Clarification on Federal Venue Rule

Venue is proper under 28 U.S.C. 1391(b)(2) wherever a substantial part of events that gave rise to the claim occurred, regardless of whether the defendant entered that venue.
o Brief Fact Summary. Defendant, a debt collection agency, mailed a notice of collection to Plaintiff at his former address in Pennsylvania, which was then forwarded to his present address in New York. Plaintiff sued Defendant for violation of the Fair Debt Collection Act in New York federal court. Defendant argued that venue was improper because none of the events that gave rise to the claim occurred in the district where the claim was filed.
• Might be multiple districts where substantial events or omission giving rise to the claim occurred – the plaintiff is free to choose among those district where they desire

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Notes on 1404(a)

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• Applies where venue would be proper – but feel another district would be better for justice – if would have been proper district in the first place or all consent – then can be transferred to that district
• Rarely used but one occasion = when enter exclusive forum selection clause that rules out certain judicial districts – and plaintiff has violated that and does file in these districts → district court can enforce the forum selection clause – ask for transfer
o Uncertainty – if evokes 1404 or 1406 – if the place filed at first was a proper venue – just contractually obliged not to file there then 1404 not 1406 (only for improper venue) would be appropriate
o Should courts transfer in this situation – expects supreme court to say yes – Atlantic Marine Co.
• (A) = partial substitute of forum non conveniens → permitted courts to transfer for; before this statute was enacted this doctrine would allow to dismiss a suit
o Gulf Oil Corp. v. Gilbert (Was a proper venue – but at this time no statutes about the transfer = why dismiss rather than transferred
• In response to this issue enacted 1404 – used the factors in this case to decide if should grant transer
• 1) Private interests of litigants → plaintiff gets to choose where to proceed and will respect that choice and wont transfer the action
• 2) Public interests
• 1404 – supersedes Gilbert test in one way – when venue proper in more than one district – can transfer the action but can’t dismiss under forum non conveniens – addresses that situation and conspicuously doesn’t give authority to dismiss – when enacted thought both giving power to transfer but not to dismiss

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Objecting to Venue

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Options
o Can raise objection to venue file in motion to dismiss under 12(b)(3)
o Alternatively can wait to trial assert improper venue in your answer
• Consent to venue is implied by failure to object in a timely manner or by entry into a forum selection clause.
o Unlike SMJ but like PJ – venue right can be cured by waiver or advance consent (forum selection clause)
o Modern interpretation – uphold forum selection clauses for particular district – and can’t object to improper venue

Front 75

Transfer: Improper Venue

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28 USC 1406: A court without proper venue has the discretion
1) Either to DISMISS the action OR
2) To TRANSFER the action to a district where it could have been brought, if the transfer is in the interest of justice

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Transfer: NOT improper Venue

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28 USC 1404: Transfer for parties where it is in their interest
o 1404(a): Courts have the power to transfer a suit that is more appropriate for a different forum
o RULE: Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed
o CONSENT REQUIREMENT: There must be another proper district OR all parties must agree

Front 77

Dismissal under the doctrine of forum non conveniens

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Piper Aircraft v. Reyno: When venue is proper in a district court, but it is MORE appropriate in a forum country, forum non conveniens can be used to dismiss the suit
• Brought case in proper forum – but defendant/ court thinks a more appropriate forum will be in some other district – can they use the old doctrine for FNC to dismiss the case – YES
• ALSO: The fact of a substantive law being less favorable to plaintiffs n an alternative forum should not be given conclusive or even substantial weight in applying the doctrine of forum non conveniens.

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28 USC 1390(c):

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Cases started in state court and removed to federal district court under 1441 do NOT need to satisfy venue under 1391 because 1441(a) spells out the district that receives the case

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28 USC 1631:

Back 79

Federal courts can transfer cases over which they lack jurisdiction to courts where jurisdiction exist

Front 80

Pendant Venue:

Back 80

Use the Gibbs test – if venue is proper for one count and a second count derives from a nucleus of common fact, a district court can reject a motion to dismiss the second count for want of venue even if that count could not stand alone – this is a discretionary power to be used in the promotion of judicial economy

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Swift v. Tyson:

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Federal courts are not bound by decision of state courts so far as they relate to the general law (“customary law” that cut across jurisdictional boundaries)
• BENEFITS: Horizontal uniformity (all federal courts follow SCOTUS) and incentive of state courts to follow federal courts
State1 State2 State3 State4 State5 ... State50
Fed1 Fed2 Fed3 Fed4 Fed5 ... Fed50
• DRAWBACKS: Forum shopping and people in some states won’t know in advance the content of the law to be applied in their case

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Erie v. Tompkins:

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(over ruled Swift) Federal courts are to follow the settled precedents of each state’s highest courts about issues of state law within a state’s lawmaking power, regardless of any general/local law classification
• VERTICAL UNIFORMITY: Every federal court understands the law as it is understood by the state in which it sits
State1 State2 State3 State4 State5 ... State50
Fed1 Fed2 Fed3 Fed4 Fed5 ... Fed50
• Forum shopping is a bigger issue now because of looser constraints on personal jurisdiction and greater diversity in terms of choice of law rules

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Brandice’s Arguments Against Swift

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• Historical claim that Swift misunderstood the statute’s original meaning
o Charles Warren’s discovery of an early draft of the provision in the bill that became the Judiciary Act of 1789: instead of referring to “the laws of the several states,” this early draft had referred to “the Statute law of the several States in force for the time being and their unwritten or common law now in use, whether by adoption from the common law of England, the ancient statutes of the same or otherwise.
• Constitutional argument against Swift
o What might Justice Brandeis have meant by “the unconstitutionality of the course pursued” in Swift?
• Federalism and separation of powers
• Prof’s idea = comes from Holme’s dissent → then have to treat decisions of state supreme court like the would statutory law
• Nothing in constitution says federal has this power to regulate the internal structure of the state government
• Stare decisis – this point – usually to these cases and pending cases – not what happens with statutes – can’t work retroactively – only for future cases
• When court makes decision = isn’t making a new law – is making a interpretation about state law – old decision was wrong about the state law and this is the correct interpretation
• Unless state constitution gives power to the state courts to make law – nothing in federal law talks about this
• Practical reasons to dislike Swift
o B’s argument rest on idea that vertical disuniformity is worse than horizontal disuniformity → might not be true hard to ***** which is better – not clear eries is better than
o Erie w/ Klaxon Co. v. Stentor Electric Mfg. Co. – where substantive rule of decision are concerned horizontal uniformity is more important

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Hanna v. Plumer:

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When determining whether a state law rule is substantive or procedural, look at whether, at the time the litigants were choosing a forum, the prospect that the courts would do something different influenced the choice between the forums and WHY it would do so
• Read York in light of forum shopping and inequitable administration of the law
• INQUIRY: Is this issue something litigants would forum shop over? If yes, would they forum shop because this issue will SUBSTANTIVELY impact the outcome?
• Drew distinctions between box 2 and 3, and box 4 → confined pure Erie analysis to box 4
o Hanna itself was a box 3 case discussed the rest in Dicta

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To decide whether a federal rule of civil procedure enacted under the Rules Enabling Act is valid, it must pass the test under 28 USC 2072:

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(a) Is the rule a general rule of practice or procedure?
(b) Does the rule abridge, enlarge, or modify a substantive right?
GENERAL RULE: All courts apply state law only insofar as (1) it has not been displaced by a valid federal law, and to the extent that (2) it is substantive as opposed to procedural

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BOX 1

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1) [There is a FEDERAL CONSTITUTIONAL PROVISION w/state law]
a. = you have to do what the Constitution requires even if a state court would do something else.
i. Of course, state as well as federal courts have to follow the federal Constitution. But there are some provisions of the federal Constitution—like the Seventh Amendment’s provisions about the right to trial by jury in civil cases—that are written in such a way as to apply only in federal courts and not in state courts.

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BOX 2

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2) [There is a FEDERAL STATUTE that conflicts w/states law] (whether explicitly or by implication)
a. QUESTION = is statute is valid?
i. TEST = is it within the powers that the Constitution gives Congress?
1. IF VALID = then you have to do what the statute requires even if a state court would do something else.
a. Again, state as well as federal courts have to follow valid federal statutes; the Supremacy Clause of Article VI of the federal Constitution says as much.
b. But some federal statutes—especially those with a procedural cast—are written in such a way as to apply only in federal courts and not in state courts.
i. Ex. For instance, 28 U.S.C. § 1391 regulates “the venue of . . . civil actions brought in district courts of the United States” without purporting to address venue for actions brought in state courts.
ii. Ex. Likewise, 28 U.S.C. § 1404 authorizes transfers of certain civil actions from one federal district court to another without purporting to address the transfer of cases in state-court systems.

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BOX 3

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3) [There is a FORMAL FEDERAL RULE OF CIVIL PROCEDURE conflicts w/state law (whether explicitly or by implication)]
a. QUESTION: whether the rule is valid—
b. TEST:
i. 1) Is it constitutional?
ii. 2) Is it within the rulemaking authority that the Rules Enabling Act gives the Supreme Court? [The Rules Enabling Act, 28 U.S.C. § 2072, authorizes the Supreme Court]
1. Is the rule a “general rule[] of practice [or] procedure [or] rule[] of evidence” within the meaning of § 2072(a)
2. Does it impermissibly “abridge[s], enlarge[s], or modif[ies] any substantive right” within the meaning of § 2072(b).
c. IF VALID: then you have to do what the rule requires even if a state court would do something else (as it very well might, because the Federal Rules of Civil Procedure do not purport to apply in state court).

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BOX 4

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4) [If NO PROVISION OF WRITTEN FEDERAL LAW answers the question and if the question would be classified as one of state law if the case were proceeding in state court [meaning, among other things, that neither the federal Constitution nor any other valid aspect of written federal law implicitly or explicitly strips the states of lawmaking power over this question]
a. QUESTION: have to decide whether the Rules of Decision Act requires you to follow the answer that state law would give?
i. In General:
1. If the matter is “substantive” for purposes of Erie analysis = FOLLOW STATE customary practice
2. But if the matter is instead “procedural” for Erie purposes, = FOLLOW FEDERAL customary practice of the federal courts (or some other type of procedural federal common law) even though state courts would do something different.
b. TEST: Pure Erie Analysis in Hanna: “twin aims Erie”
i. 1) Trying not to encourage forum shopping between state and federal courts and
ii. 2) Avoiding the inequitable (unfair) administration of justice
1. Borderline questions: consider whether there’s any special federal interest in having all federal district courts handle this particular issue the same way (in which case you might incline toward classifying the issue as “procedural” rather than “substantive”

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Walker v. Armco Steel Corp.:

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(BOX 3) Rule 3 is upheld as valid because it does not directly conflict with a state statute of limitations – the Rule does not address the issue
• RATIONALE: Few Ps will care enough about this issue to forum shop over it – focus on twin aims of Hanna!
• How can we reconcile Hanna decision with Walker?
o Walker addresses line in box 4 – and Hanna address box 3} two different tests
• Matter since two different analyses – both have the question if procedural or substantive
• Box 3 – if valid under power given by rule enabling act – if procedural and if “modifies etc.” – Hanna says this test isn’t identical to the box 4 analysis -
• Box 4 – pure Erie analysis – is narrower than rule decision act

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Sibbach v. Wilson:

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(BOX 3) Rule 35 is upheld as valid because it is a general rule of civil procedure that does not abridge, enlarge, or modify a substantive right under state law
• TAKEAWAY: Read “substantive” narrowly
• Illustrates the fact that box 3 is narrower than 4
o TEST: “The test is not whether the rule affects a litigant’s substantive rights; most procedural rules do. What matters is what the rule itself regulates: If it governs only “the manner and the means” by which the litigants’ rights are “enforced” it is valid; if it alters “the rules of decision by which the court will adjudicate [those] rights” it is not

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“Abridge, Enlarge, or Modify” a Substantive Right

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• Shady Grove v. Allstate: Federal class action rules govern, not NY law that limits class actions in certain suits
o SCALIA: This is a Box #3 issue (Rule 23 governs) because it is a general rule of procedure and does not abridge, enlarge, or modify a substantive right
• Majority of court – says that Rule 23 – would conflict with this NY law since – therefore would be in box 3
• Uses Sibbach Test: (if procedural or substantive?)
• Holds that rule 23 satisfies this test – rule 23 wasn’t responsible for penalties – those came from NY insurance law – all that 23 was doing was regulating the procedural topic of joinder – allows class action claims – saying it is a mechanism for hearing a bunch of cases in one case more efficient
• Majority admits will affect substantive rights – (if don’t allow class action – small claims alone probably wont be brought against Allstat – But if class action would be responsible for all people in the class – would be 5 million dollars – huge practical difference)
• Scalia says this doesn’t affect validity of rule 23 – says it regulates the procedure of class action cases not the substantive rights – the NY insurance law gave them this right – 23 just regulates procedure
• If we were in box 4 – well then care about forum shopping – (in box 3 however)– if it was a borderline case between procedural and substantive – then would look at the forum shopping
• But here Scalia says – if satisfy the criteria in rule 23 – then maintain it as a class action – this to Scalia isn’t ambiguous – is procedural – therefore doesn’t depend of forum shopping to see it validity
• Scalia – says passes the validity test – constitutionally fine and doesn’t “abridge, enlarge, etc.” – therefore valid eve though might cause forum shopping
o GINSBURG: Rule 23 conflicts with the NY law that makes the substantive entitlement to relief go away in certain circumstances
• Dissent → Finds that they read rule 23 too broadly – says doesn’t speak to the issue here therefore in box 4 – says paying too much attention to literal language of rule 23 – says the purposes behind rule 23 don’t conflict with NY state law
• Says NY law is substantive right underlying it – and therefore reads rule 23 narrowly to avoid the important state policy she sees in NY state law
o STEVENS: State procedural law only governs if it is plainly a substantive remedy (a mere chance is not enough)
• Agrees – even if federal rule of procedure encourages forum shopping
• Disagrees – when asking if valid – can’t just look at the rule itself and see if regulates what is procedure or substance – says even if regulates procedure may be invalid in relation to specific case
• Says there are substantive goals of a state law underlying a federal rule of civil procedure – possible for a state rule – to function as a part of the State’s definition of substantive rights and remedies (464*) – these are protected against federal rules of civil procedure
• Therefore can be invalid in relation to a particular case BUT (CB 466*) – the bar for finding an Enabling Act problem is a high one – federal court has never held a federal rule of civil procedure was invalid – partly because the Supreme Court – keep it in mind when making these rules
• Also need to think about how NY law in analysis – and see if it covers substantive rights – here Stevens fidns the NY state law does not and rule 23 is valid
o Issue between these three interpretations – different interpretation of the NY state law = Difference between majority/concurrence and dissent = Statute was worded more generally – action to recover a penalty – may not be maintained as a class action – language seems to be more a prohibiting of class action (majority) not a limitation of penalties (dissent)
• Suppose 901(b) said – the legislature has determine – seeking to limit penalties under NY law for class action – opposes class certification (Ginsberg/Dissent interp)
• Could make arguments on both sides – might says rule 23 does reach this – if adopt this have to ask whether rule 23 is valid under the rule enabling act –
• Scalia would says still just regulates procedure – regulates only procedure
• Justice stevens – might says rule 23 does abridge and modify a right – says the state law creates a substantive right and then rule 23 would be invalid
• If rule 23 doesn’t address this question at all – then would get to box 4 – would create huge incentives for forum shopping therefore might see it as substantive not procedural

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Atlantic Marine Construction Co. v. United States District Court

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(argued Oct. 9, 2013)
o Brief Facts – Contract with forum selection clause – in VA eastern district, P sued in Texas – and D moved to dismiss or transfer to VA Texas court said – it was a proper jurisdiction and the forum selection clause is just one factor – other factors more important 5th circuit upheld
o SCOTUS: Believe the supreme court will reverse – said 1404(a) – was broad enough to cover this issue in court –and forum selection clause is a significant factor
o See them maybe going farther and see if forum selection clause is helpful or not to the public – i.e. if bad for the system – but think the supreme court won’t find there to be any reason to move it – friendly to forum selection
o (Scalia – would say need to see if it is valid in TX)

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Which State Choice Of Law Doctrine Use?

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Klaxon v. Stentor Electric: Federal courts should borrow state choice of law rule; use the state law in which it sits –
• This is a Box #4 issue: choice of law doctrine is a “substantive” issue, so state law governs
• PROBLEMS:
o Horizontal dis-uniformity costs make it difficult to structure your activities to avoid a lawsuit;
• Don’t know in advance where going to be sued – therefore don’t know which choice of law doctrine will hold and what law he will be brought under
o Destroys some of the protection of diversity jurisdiction protection – States with few manufacturers can create pro-consumer products liability rules that govern in federal court
• Ex – in product liability case – if MS – is friendly to consumers because has more consumers than manufactures – and choice of state law says product liability that happens in MS – then a lot of consumers will bring their suit to MS
• Before Klaxon – very few states had unusual choice of law doctrines – not true anymore – a lot of states now apply choice of law doctrine that favor their own law – klaxon created this element and got rid of this protection – federal court will use same choice of law principles as MS

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Which Choice of Law Doctrine When Transfered to Another Federal Court

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When a case that could have proceeded in a federal judicial district is transferred to another federal district court, the transferee court should apply the choice of law rules of the transferor court (initial venue)
• Applies with 1404 not 1406 – when object to the venue because it is improper – if couldn’t have proceeded – doesn’t apply van dusen principle use new courts choice of law – the court where transferred use that
• 1404 – not applicable if the reason transfer is for a forum selection clause – then van dusen will not apply – they will use the state choice of law
• PROBLEM: P can pick a district with favorable rules that is less convenient and transfer to a more convenient forum with those rules
o If Van Dusen didn’t hold – wouldn’t want to overreach and choose the first option which might be transfer to #3 – would therefore choose option #2
o Van Dusen eliminates this break on forum shopping – even if plaintiff chooses #1 = that choice of law doctrine will hold even if it is transferred

Federal judicial district
in State #1 Federal judicial district
in State #2 Federal judicial district
in State #3
very inconvenient medium convenience very convenient
very plaintiff-friendly choice- of-law doctrine neutral choice-of-law doctrine very defendant-friendly choice-of-law doctrine

Front 96

Ferens v. John Deere

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Van Dusen applies no matter who seeks the transfer

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Which State Content Law Do you Use?

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Mason v. American Emery Wheel Works: Handle an issue in federal court the same way that it would be handled in state court – federal courts can maneuver to try to mimic what they expect the state’s highest court will do, even if that means ignoring a standing precedent
• Question is = what would the highest supreme court of the state say about this issue – best evidence is court opinions – predict what the state’s highest court will do
o Precedents of the highest court almost always are going to be followed in federal court – Mason is an odd example
• Mason – had a precedent case – but was old and another case had dicta seemed to be favorable to more modern trend
• Federal circuit court therefore predicted that the MS supreme court would overrule this precedent case – highly unusual - for a court to be so confident that the precedent will be overruled won’t follow it
o In certain circumstances decisions of other states might be used to resolve legal questions another state hasn’t yet addressed
o Most states make a procedure to help federal court to figure out what they would do –
• If don’t have this or the federal court doesn’t do this – just make their own best guess
• Who bound by whom?
o Only the highest court of the state – binds federal court for state laws holding over an answer
• Federal courts DO NOT follow intermediated state courts (unless the supreme court of the state will do this same thing)
o State court – NOT bound by what the federal circuit courts – only bound by supreme court
• This decision of what they think the state would do – is not binding on state courts – state courts can say – not this isn’t what we would have done

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Complaints

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Rule 8(a): A short and plain statement of the grounds for the court’s jurisdiction, a short and plain statement of the grounds for relief, and a demand for relief
• Rule 9(b): Allegations of fraud or mistake require a statement particularly pointing to the allegations constituting fraud or mistake

Rule 11: Every pleading, motion, and other paper must be signed by a lawyer unless the party is proceeding pro se – when a lawyer or pro se party signs a paper or advocates in court, (s)he is making a representation, such as
• 11(b)(3): the factual contentions have evidentiary support or, if specifically identified, likely will have evidentiary support after discovery

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Multiple Claims:

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Rule 18: A party asserting a claim may join as many claims as he has against an opposing party (if have subject matter jurisdiction can put multiple unrelated claims together)
• Rule 82: The rules are not extensions or limitation on jurisdiction or venue – all claims must have a basis for jurisdiction, Rule 18 is not enough
• Rule 42(b): Judge has discretion to sever the claims and hold separate trials before separate juries to avoid prejudice or to expedite or economize or for convenience (this is rare – P usually gets to decide the scope of his trial)

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Multiple Parties:

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Rule 20(a)(2): Cannot join multiple parties as defendants unless
(a) they are jointly or severally liable OR the claims arise from a common transaction; AND
(b) there is a question of law or fact common to all defendants
(Limit relation of claim unlike 18)
➢ 20(a)(1) – conditions for multiple Ps – claim needs to rise out of same transaction or occurrence
➢ 20(a)(2) – conditions for multiple D – claim against the arises out of same transaction or occurrence

Rule 84: Forms in the appendix of the rules are sufficient to satisfy the requirements of Rule 8

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LEVEL OF DETAIL REQUIRED FOR COMPLAINTS

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Under Twombly and Iqbal, it is no longer enough to just plead conclusions – you must plead facts, and you must plead facts supporting each element or from which the elements can be plausibly inferred
• Must be able to present a plausible claim
• District judges are supposed to assume the truth of factual allegations, but conclusions are not entitled to an assumption of truth
• TWOMBLY RULE: Facts that are pleaded with enough specificity are assumed true (when ruling on a motion to dismiss for failure to state a claim) – assuming the truth of these allegations, the judge must determine whether that makes the claim for relief plausible

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Rule 9(g):

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in federal court, if a claimant wants to seek recovery for an item of special damage, that item must be specifically pleaded
(1) Some causes of action require proof of certain kinds of damage as an element
a. 9(g) requires a specific allegation of these types of damages
b. E.g., requirement of an actual, pecuniary loss as an element of defamation needs to be pled specifically
(2) Damages that are unusual for the type of claim being sought
a. 9(g) requires a specific allegation of these damages
b. E.g., emotional damages for death of a dog in a car accident case
i. Notice pleading requires that D be aware of such a claim

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Rule 54(c):

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every final judgment should grant the relief to which a party is entitled, even if the party did not plead that damage
• Only applies in regards to evidence that is brought in at trial
• This does not conflict with 9(g) – if special damages are not pled, the D’s lawyer can object to keep out evidence about those damages – if he doesn’t then they will be allowed
o If don’t amend the complaint – will keep the evidence out then rule 54(c) won’t come into play – since evidence won’t be allowed
o If evidence was allowed because no objection by D – then 54(c) would allow that relief – therefore D’s counsel needs to be alter to make objections to special damages not in the complaint

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Motion To Dismiss: 3 reasons

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12(b)(6)

Three reasons why a federal district might grant a motion under Rule 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can be granted:

(1) The complaint fails to provide even the minimal level of detail required by Rule 8(a) (or the greater level of detail required by Rule 9, to the extent that the complaint is alleging “fraud” or “mistake” [Rule 9(b)]).
(2) The complaint has enough detail to satisfy the federal pleading rules, but it makes clear that it is relying entirely upon a legal theory that the law does not actually recognize.
(3) The complaint provides more factual detail than it needed to provide, and the extra facts rule out any possibility that the plaintiff could recover.

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he defendant’s response - General

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GENERAL
• If the P has caused the D to be formally served with a summons, then Rule 12(a) requires a response within 21 days unless D is granted an exception under Rule (6)
o Exception: Rule 4(d) allows the P to ask the D to waive a formal service of summons
• P can mail the complaint and a waiver form to the D – if D refuses to waive formal process, then the D will need to pay the costs of service; but, under Rule 12(a), D has 60 days from the day of the waiver request to submit an answer
• Within the time specified in Rule 12(a), the D must either serve an answer to the complaint or a motion under Rule 12
o If a Rule 12 motion is denied, then the D has 14 days to serve an answer to the complaint

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MOTIONS TO DISMISS

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motion to dismiss for failure to state a complaint
• Even if a complaint lacks the necessary detail in Twombly, the district court will not dismiss the complaint unless the D makes the motion
• RULE: in order to survive a motion, a complaint must meet the threshold level of detail required by Rule 8 under Twombly (must state factual details that, if true, make the complaint plausible)
o If a complaint meets this standard, then Conley standard kicks in and the complaint cannot be dismissed unless there is no set of facts consistent with the allegations under which P could win
• If the complaint includes factual details establishing that the P will lose
• Too late under the statute of limitations
• If a complaint acknowledges that the D has defenses and the facts pleaded prove that the defense
• RULE 12(b)(6) IS JUST ABOUT THE ALLEGATIONS BY THE PLAINTIFF
• Gracia v. Hilton Hotels International Inc.
o Brief Facts – Plaintiff sued Defendant, his former employer, for slander. Defendant moved to dismiss for failure to state a claim upon which relief can be granted on the grounds that Plaintiff failed to allege that the allegedly slanderous statements were published and/or not subject to privilege. In the alternative, Defendant moved to strike certain allegations of Plaintiff’s complaint pertaining to statements subject to an absolute privilege.
o Courts not likely to do this today with facts of this case

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OTHER PRE-ANSWER MOTIONS

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Rule 12(e): If a claim is so vague or ambiguous that the D cannot form a response, then the court can order a more definite statement
Rule 12(f): Motion to strike

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Denials

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Rule 8(b): D must admit or deny the allegations against him
• Must admit what is true and deny the rest, if picking and choosing
• If there is insufficient knowledge or information to form an admissions or denial, D can state this (acts as a denial)
• If D’s answer does not address an allegation, it is assumed to be admitted
o Rule 8(b)(6): if a responsive pleading is required and an allegation is not denied, then it is admitted
o Many answers says “we deny everything in the complaint that is not expressly admitted”
• The amount of factual detail in the complaint governs the amount of factual detail required by the answer

Zielinski v. Philadelphia Piers: Because D did not comply with Rule 8(b) by filing a detailed enough answer, the general denial of P’s paragraph #5 is inefficient; therefore, the facts are admitted
• RATIONALE: It would be unfair to the P to allow the D to amend its complaint after the statute of limitations has passed

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AFFIRMATIVE DEFENSES

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Rule 8(c): D must state any affirmative defenses (even if x is true, P still cannot recover because y)
• Burden of pleading an affirmative defense is on the D – in order to preserve the option of relying on this legal argument, it must be raised in the answer
• Rule 8(c) does not state the consequences of failure to state an affirmative defense in the answer
o BUT, failure to do so destroys D’s ability to introduce evidence as to that defense at trial
• E.g., “release” is an affirmative defense – if P sues D and D wants to avoid liability by citing a release of P’s claims – failure to state this as an affirmative defense will keep D from making this argument because P can object (objection should contemporaneous with the attempt to introduce the evidence)
• Rule 8(c) is NOT an exhaustive list of affirmative defenses that must be asserted in the answer

Ingraham v. United States: When D did not raise the issue of a statutory damages cap until a few months after final judgment was entered, D had effectively waived its right to assert the judgment cap as an affirmative defense under Rule 8(c)

Taylor v. United States: Although the government did not raise the issue of a judgment cap until after judgment was entered, the damages cap was NOT an affirmative defense for Rule 8(c) purposes
• Because P does not need to plead noneconomic damages, the D does not need to assert defenses to the damages amount

Rule 8(c) assigns the burden of pleading to the D even if state law would not assign him the burden of persuasion
• What is an affirmative defense for purposes of identifying something not specified in Rule 8(c)?
o Must defeat or limit the P’s claim under substantive law
o Must be available to the D at the pleading stage
o Usually, D will have the burden of persuasion
• The question of which characteristics matter for determining if something is an affirmative defense is a question of FEDERAL LAW; however, STATE LAW can help answer the questions (e.g., where does state law place the burden of persuasion?)

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Counterclaims

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COUNTERCLAIMS - claim that asserted against a party already in this law-suit – not a co-party only one on one (P v. D – D counterclaims P’s claim – (counter parties))
• Compulsory: Rule 13(a)
o A pleading MUST state as a counterclaim any claim that, at the time of its service, D has against an opposing party arising out of the same transaction or occurrence
o CLAIM PRECLUSION: D cannot bring a claim in a separate suit that should have been asserted as a counterclaim
• Will always have subject matter jurisdiction (will always pass Gibb’s test)
• Permissive: Rule 13(b)
o A pleading MAY state as a counterclaim any claim that is not compulsory – there is NO relatedness requirement
o Must have an independent basis of subject matter jurisdiction –
• Gibbs test – common nucleus of operative fact – not tremendously demanding – less demanding than the transaction or occurrence test
• 1367(a) – will allow a few claims that are permissive and have no independent basis
• For Answering a Counter claim – same rules under Rule 12
• Can make a motion under 12(b) – is for both claims and counterclaims
o Some of the defenses that can be used against claims aren’t available for counterclaims
• 1. Venue – can’t use to dismiss – only limit where the complaint can be filed (“where the lawsuit can be brought”) – only a complaint or amended complaint
• 2. Personal Jurisdiction – by filing the claim in the forum originally = submit themselves to the personal jurisdiction of that court
o Can uses subject matter jurisdiction and federal question as defense

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Crossclaims

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CROSSCLAIMS – claim against a co-party – already in the lawsuit
• Difference between co-party and party – P v. D1 + D2
o P and D1 = opposing parties - counterclaims
o P and D2 = opposing parties - counterclaim
o D1 and D2 = co-parties – crossclaim
• Rule 13(g): At least one cross-claim must arise out of the same transaction or occurrence that is the subject of the original action or of a counterclaim
o Aren’t as liberal in letting them assert crossclaim as they are for counterclaims
• If it meets this criteria – then Rule 18 kicks in and can assert any other claims they may have – “a party asserting a crossclaim may join as many claims as it has against that same party”
• All possible must have one (only need one) – to arise out of the same transaction or occurrence
• All crossclaims = permissive (not compulsory) – give Ds the option to present a unified front
• Ps can also make crossclaims
• Two conceptions of “co-party”
o (1) Broad view = Any party not on opposing sides
• Opposing parties and co-parties = the only parties in any law suit – if not opposing then are a co-party
o (2) Parties of the same status/on the same plane (must be on the same side of the same set of pleadings)
• Can have parties in a case neither opposing parties nor co-parties = can be parties with “no like status”
•
o P v. D1 (D1 impleads a 3rd Party Defendant) + D2
• Here D1 and TPD = opposing parties
• D2 and TPD =
• Under broad view = co-parties since not opposing parties therefore can include a crossclaim against each other
• Under narrow view = not co-parties since they are not of “like status” on a different plane of litigation – therefore the can not assert crossclaims against each other

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13(h)

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applied to both counterclaims and crossclaims – people who are not yet parties to the suit may be made parties in accordance with rule 20
o Allows counterclaims and crossclaims for third parties not in the lawsuit
o Lasa v. Alexander

Front 113

MOTION FOR JUDGMENT ON THE PLEADINGS

Back 113

Rule 12(c): P’s tool to secure judgment at the pleadings stage Rule 12(c): Either side can move for judgment on the pleadings after the pleadings are closed. But is REALLLY the P’s way and 12(b)(6) = D’s way
• If D’s answer admits the P’s key allegations and fails to state a valid defense (read in light most favorable to D) = way for P to win with this rule

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AMENDMENTS ON THE PLEADINGS
BEFORE TRIAL

Back 114

Seeking leave to amend: file a motion seeking the court’s permission to amend, then attach a copy of the amended pleading
• Rule 15(a)(2): need written consent of the opposing party or ask permission from the court
o Rule for Court: court should freely give leave for amendments when justice requires (Foman v. Davis)
o SCOTUS: grant leave to amend absent undue delay, bad faith, undue prejudice to the other party, futility, etc.
• There is a right to amend ONCE within 21 days of filing

Beeck v. Aquaslide: When D mistakenly fails to deny an allegation until new information surfaces after the statute of limitations period, it is within the district judge’s discretion to allow or to deny an amendment on grounds of undue prejudice to the P

Front 115

AMENDMENTS ON THE PLEADINGS
AFTER THE TRIAL HAS COMMENCED

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Rule 15(b)(2): tried by consent – if something isn’t in the pleadings, but gets injected into the case anyway, if the other party doesn’t object, then the issue is tried by consent

Rule 15(b)(1): object to evidence raised outside the scope of the pleadings
• If they do object – the party can still move to amend the pleading and will be allowed if “freely grant this motion when will aid in presenting the merits and the other party fails to show the evidence would prejudice the that party’s action or defense”
• Prejudice (for the purpose of this rule): not whether the opposing party will be worse off; rather, did the delay in pleading the issue harm the opposing party as compared to the position the other party would be in had the issue been pled in the original pleadings

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"relation back rule"

Back 116

“relation back”
• This matters when an amendment to a pleading adds a new claim and we need to know whether the statute of limitations has expired between the time of the original pleading and the time of the amendment
• An amendment relates back if any of the conditions in 15(c)(1) is satisfied
o 15(c)(1)(a): the statute of limitation ALLOWS relation back
o 15(c)(1)(b): the amendment asserts a claim arising out of the same transaction or occurrence in the original claim
• This is for new claims between EXISTING PARTIES
o 15(c)(1)(c): the amendment changes the party or the naming of the party (if 15(c)(1)(b) is satisfied) AND service of process under Rule 4(m) is met such that the new party (i) is not prejudiced in defending on the merits AND (ii) (s)he knew or should have known that a suit would be brought against it but for a mistake of identity
• Treat the amendment as though it has been part of the original pleading all along – an amendment “relates back” if any one of the three subparagraphs applies

Krupski v. Costa Crociere: D knew or should have known that it would be named as a D under Rule 15(c)(1)(c) – P’s delay in moving to amend is not relevant to the proper analysis of the rule

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Joinder “Necessary” and “Indispensable” Parties (3 categories)

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Rule 19(a)(1) – Three categories of persons required to be joined if feasible (a “necessary party”):
(a) someone “in [whose] absence[] the court cannot accord complete relief among existing parties” OR
• I.e. If P1 and P2 were able to both sue D in two suits would result in D overlapping pay or two conflicting injunctions – 19(a)(1) – calls there necessary parties (paiting auction example)
(b)(i) someone who “claims an interest relating to the subject of the action and is so situated that disposing of the action in [his] absence may…as a practical matter impair or impede [his] ability to protect the interest” (designed to protect outsiders)

(b)(ii) someone who “claims an interest relating to the subject of the action and is so situated that disposing of the action in [his] absence may…leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” (designed to protect one or more of the existing parties)

Provident Tradesmen Bank v. Patterson: Third party is NECESSARY under 19(a), but his joinder is NOT feasible; Dutcher is NOT an indispensable party under 19(b)
• RATIONALE: The moving party never raised the issue until the appeal; Dutcher did not have interests at stake because the Ps had agreed to limit the amount of damages they would seek to the amount covered by insurance

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A JOINDER IS NOT FEASIBLE AND MAY BE DENIED IF IT DESTROYS JURISDICTION!

Back 118

➢ P sues D and D thinks X is a necessary party – failure to join a party (under 19(b)) is a grounds for the dismissal of the complaint
➢ But even if the court agrees this is a necessary party – wont necessarily dismiss – will order X to be a party

Front 119

Provident Tradesmen Bank v. Patterson:

Back 119

Third party is NECESSARY under 19(a), but his joinder is NOT feasible; Dutcher is NOT an indispensable party under 19(b)
• RATIONALE: The moving party never raised the issue until the appeal; Dutcher did not have interests at stake because the Ps had agreed to limit the amount of damages they would seek to the amount covered by insurance

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19(c)

Back 120

when ever anyone makes a pleading – must state the names of any necessary parties who have not yet been joined – if feasible to join the court is require do to this under (a)(1)
• If not feasible – under 19(b)(2) – need to see if indispensable

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Rule 12(h)(2):

Back 121

arguments about who is a necessary or indispensible party are NOT waived by failure to make a motion – the issue is preserved throughout trial in order to protect the absent party, for whom the P and D are not reliable proxies

Front 122

IF JOINDER OF NECESSARY PARTY = NOT FEASABLE (3 options & how to choose which one

Back 122

1) Go forward without the absentee
2) Dismiss – because it would be improper to proceed without the absentee (indispensible party)
3) Go forward without absentee BUT try to craft the judgment to provide appropriate relief to the parties before the court despite the inability to join the absentee

How to choose which one? – 19(b) guidelines
• Rule: “determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed”
o Factors to consider:
• What extent a judgment rendered in their absence might be prejudicial to the person or those already parties
• The extent to which protective provisions in the judgment may be used to avoid or lessen the prejudice to the absent party
• Whether a judgment rendered without the absent person will be adequate (among parties before the court)
• Whether the plaintiff will have an adequate remedy – presumably in a nother court – if the action is dismissed due to the inability to join the absentee

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INTERPLEADER RULES

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• Rule 14(a)(1): a defendant party (as a third party plaintiff) may bring in another party who is liable to him within 14 days of the filing of the complaint [Ds can go on the offense against a third party (non party)]
• This is used a tool to make the third-party defendant 1. contribute to or 2. indemnify a judgment against the third-party plaintiff
o Third party claims are asserted in a separate pleading from the defendants answers – is asserted in a 3rd party complaint – looks like a regular complain
• Rule 18 allows a party asserting a third-party claim to join as many claims as it has against that party
o If an additional claim does NOT have an independent basis for subject matter jurisdiction, the court only has jurisdiction if supplement jurisdiction is present
• Common nucleus of fact
o Personal jurisdiction: Persons joined under Rules 14 or 19 can be reached by a special federal long-arm rule: the 100-mile bulge rule
o Venue: venue rules do NOT apply to third-party complaints
o Rule 14 only applies with claims for contribution or indemnification
• Rule 14(a)(2)(A): rule 12 applies
• Rule 14(a)(2)(B): third-party defendant can include counterclaims against a third-party plaintiff
• Rule 14(a)(2)(D): third-party defendant can assert claims against the plaintiff if they arise out the same transaction
o THIS IS NOT COMPULSORY
• Rule 14(a) allows the plaintiff in the original suit to assert claims against a third-party defendant unless doing so destroys jurisdiction
o But if 1332 (diversity SJ) and TPD would make 1367(a) get rid of SJ – i.e. the TPD is from the same states as P or D (not pure diversity)
• True no matter who brought TPD into the suit – if the D brings them in
o Kroger Case – citizen of Iowa sued power company – the power company (VA) impleaded party citizen Iowa and Nebraska – and then she tried to assert a claim against the crane company as well – and the court said no – was before 1367 – but it was made to solidify this outcome
• Would still have PJ over original suit and the D’s claim against TPD
• Chain of impleader rule: P v. D v. TPD v. TPD is allowed under Rule 14(a)(5) – there can be chains of third party defendants as long as contribution/indemnity test is satisfied
• Rule 14(b): P can interplead a third-party defendant for contribution or indemnity for a counterclaim asserted by D

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Jeub v. B/G Foods:

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Interpleader

(1) Rule 14 allows a food supplier to be brought in to a lawsuit in anticipation of judgment against the D, (2) Rule 14 is valid because the bundling of claims is just a procedural issue, not a substantive one
• Bad ham case - District interpreted this as if the TPD had possibility of being liable then bring the TPD in now – therefore said Rule 14 is valid- matter of procedure if brought in now or after = matter procedure – doesn’t abridge enlarge etc.

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amicus curiae (3 things give up)

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An outsider can always seek leave to file a brief as amicus curiae to the case – this is outside the scope of the Rules – this is a discretionary power of the court (INTERVENE WITHOUT BECOMING A FORMAL PARTY)
• No discovery
• No right to appeal
• Not in a position to obtain direct relief

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Intervention (2 types)

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1. Right to intervention: Rule 24(a)(2): if there is a lawsuit in federal district court and an outsider files a timely motion to intervene, the court MUST grant the motion if certain criteria are met
• Any party that is covered by Rule 19 can intervene –
o “interest relating to the property or transaction that is the subject of the transaction”
o Language is virtually identical to Rule 19(a) – about necessary parties (B)(1)
• Some parties beyond the scope of Rule 19 can intervene
o Some courts agree with him that these should encompass the same people – 2nd circuit
o But other have read 24(a) to go father than 19(a)(B)(1)

2. Permissive Intervention: Rule 24(b)(1)(b): if don’t qualify under (a) can ask the district court and the district court has discretionary power to allow intervention if the outsider shares with the main suit a common question of law or fact
• (b)(3) – Cannot cause undue delay or prejudice to another party’s rights = factor considered

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Intervention Procedure

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Rule 24(c): procedure for intervention
• A motion to intervene must be served on the parties – The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
o If intervene as P – would be a complaint
o If intervene as D – would be answer

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Lack of Standing Controversy with Intervening Parties

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Question = does the intervening party need to have standing?

• Lack of standing = Lack standing = can mean no cause of action legal rights not invaded even though suffered real world harm – i.e. mousetraps – one co. made them and then another co. came along and made better design and then everyone only buys the new one – CAN’T SUE

• Constitutional component: Art. III extends judicial power only to “cases and controversies” – something is not a case or controversy unless there are real adverse parties
o Need an injury in fact – a real world harm capable of supporting private lawsuits
o Need a cause of action
• Some courts says that in order to intervene as a party to a lawsuit, you need at least a constitutional basis
o I.e. some courts say just needs an interest in the controversy others say need this constitutional basis

• Rule 24: an outsider is not eligible for intervention unless he has a legal claim or defense to assert against an existing party
o Rule 24(b): unless a special federal statute authorizes intervention in other circumstances, the standard is whether the intervener has a claim or defense that shares a question of law or fact with the main case
o Rule 24(a) is less explicit in this requirement (no “claim or defense” requirement) – only requires an “interest”
o Rule 24(c) requires ALL interveners (under 24(a) or 24(b)) to set out a pleading of the claim or defense
• Issue = does the language of “legal claim” mean need a traditional claim?
• Split over this interpretation

Freedom from Religion v. Geithner: Minister not allowed to intervene – there is no RIGHT to intervene under Rule 24(a)
• 9th Cir. Rule: To be a PERMISSIVE intervener under Rule 24(b), you don’t need a cause of action or defense (did not have a claim – fed gov defends interests)
o (Under his interpretation (need claim) would still have a claim since is gov. lost he would have a claim against them then – therefore in anticipation would have a claim)
o Ordinarily need standing but this case said they did not

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The General Scope of Discovery

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Rule 26(b)(1): parties may obtain discovery regarding any non-privileged matter relevant to a claim or defense
• “Relevant” information need not be admissible under rules of evidence
o The information must simply be reasonably calculated to LEAD to admissible evidence

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Mandatory Disclosure and the Discovery Plan

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Rule 26(a): parties to a case must disclose certain things without even being asked within 14 days of the 26(f) conference
• 26(a)(3): a list of all witnesses to be called at trial and all exhibits to be introduced
• 26(a)(1): basic initial disclosures – documents or electronic information that may be used to support claims or defenses, and all individuals who may have discoverable information, a computation of damages
• 26(e): ongoing duty to augment or supplement initial disclosures, as necessary

Rule 26(d): parties must conference under Rule 26(f) before discovery may proceed
• Parties must submit a report detailing discovery procedures

26(b)(1) – very broad – Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(C)
• Limitations
• Priviledge matter
• 26(b)(3) – work product – prepared in preparation for trial
• 26(c) – protective orders – protect from sensitive info not privileged and burdensome discovery
• Still very broad
• Benefits – helps parties with meritous claims that can’t prove a cause of action unless can discovery the other party’s info
• Drawbacks – raises the cost of litigation – have to pay lawyers to do this discovering – huge discovery bills and although can recover some of this from the other side – is still very expensive for both sides – prices litigation out of the reach of some parties
• Same for deserving plaintiffs and defendants
➢ Ds may pay Ps to go away since discovery will be more expensive than just paying them off
➢ Ps claim is for less than cost of discovery – therefore wont bring claim

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Depositions

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Governed by Rule 30
• Live question-and-answer sessions in which lawyers pose questions and a court reporter creates a transcript

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Interrogatories

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Governed by Rule 33
• Written questions from one PARTY to another

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Requests for Production and Subpoenas duces tecum

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Governed by Rule 34
• Can ONLY be directed to PARTIES
• Covers documents, electronic info, and other stuff (e.g., photos)
• Common objections: privilege, work product, and excessive burden

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Subpoenas

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under Rule 45
• Subpoenas ad testificandum: Get a witness to show up and testify
• Subpoenas duces tecum: Get documents
• Rule 45(c): The lawyer issuing the subpoena must take care to avoid imposing undue burden
o Objections can be made within 14 days of service or before the return date
o Anyone with a legally recognized interest in the document can move to quash or modify a subpoena
• Rule 45(d)(2)(b): Regulates when a claim of privilege is made

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Physical and Mental Examinations

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Governed by Rule 35
• Physical or mental condition must be in controversy
• For the purposes of this Rule, an agent or employee is NOT under the control of his employer

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Requests for Admissions

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Governed by Rule 36
• Only available for use against a party for discoverable materials that relate to factual issues or applications of law to fact
• Something requested as admitted is deemed admitted unless there is an objection
o Objections can be dismissed as insufficient and answers can be challenged
• A sufficient admission or denial must explicitly admit or deny or state why there is insufficient information on which to base an admission or denial
• Court can allow these to be withdrawn

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Duty to Supplement

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(Rule 26: various general provisions, including provisions about the scope of discovery [Rule 26(b)], protective orders [Rule 26(c)], timing [Rule 26(d)], the duty to supplement [Rule 26(e)], and the effect of signing discovery papers [Rule 26(g)])


Governed by Rule 26(e)
• Rule 26(e)(1): Duty to supplement mandatory disclosures and responses to Rules 33, 34, and 36
o In other words: anything directed at another party as a party
o Deposition testimony from NON-EXPERTS is NOT covered
• Rule 26(e)(2): Duty to supplement testimony from expert witnesses in a deposition

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Certifications by Lawyers

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• Rule 11: Every pleading, written motion, and other paper must be signed by an attorney of record
o Rule 11(b): Certifications made
• Paper is not being presented for an improper purpose
• Facts are warranted
• Claims are not frivolous
o Rule 11(d): Rule 11 does NOT apply to discovery papers

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Certifications made in discovery

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• Rule 26(g): Certifications made in discovery -
o Non-frivolous legal arguments
o No improper purpose
o Tries to maintain good behavior – by requiring lawyers to discover paper – and requires them to adhere to things when signing
• 11(b) – tells what attorney certifying when hand in pleas
• 11(c) – makes sanctions for not adhere to things certified
• 11(d) – makes 11 not govern discovery paper
o That is the point of 26(g) → the lawyer who signs the discovery request is certifying to the best of his knowledge is warranted for non frivolous arguments and not done for non bad purpose

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MOTION TO COMPEL

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• Rule 37(a): Motions to Compel
o If lawyers cannot settle a dispute, make a motion to compel and a supporting brief; resisting party responds; movant makes a reply brief
o Rule 37(a)(5): Losing party has to pay the attorney fees incurred by the other side, unless the losing side was justified
• Rule 37(b): Failure to obey an order to compel
o P disobeys: Suit can be dismissed
o D disobeys: Judgment by default can be made
• Rule 37(e): – guards against sanction for getting rid of electronic information in good faith – probably supposed to take account of the electronic information – would replace this to be about all kinds of information

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Obstacles to Discovery

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Protective Orders
Work Product
Privileges

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Protective Orders

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See Rule 26(c) - Protect a party from being forced to give a deposition that is inconvenient for your client
• Annoyance, embarrassment – wide variety of situations
• “Good cause” – demonstrate that “disclosure will work a clearly defined and serious injury” / “specific examples or articulated reasoning”
o Mutual of Omaha Insurance Co. – wanted to discover corpse in carbon monoxide poisoning
o Williams v. Thomas Jefferson University – discover names of women who previously had abortions
o Rasmussen v. S. Florida Blood Service – discovery as to the identity of the blood downer
o Bucher v. Richardson Hospital Authority – depose minor sexually abused at the hospital – testified she had an “impulse control disorder and is a suicide risk if disposed

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Work Product Doctrine

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Rule 26(b)(3): “documents…that are prepared in anticipation of litigation or for trial by or for another party or its representatives” are insulated from discovery
• (1) Document must have been created at a time when it was objectively reasonable to anticipate litigation; AND
• (2) Document must have been created BECAUSE OF the anticipation of litigation for trial

Rule 26(b)(3)(A): Documents may be discoverable if they are discoverable under 26(b)(1) and the party seeking them shows that they are
1) Necessary to the case and
2) Cannot be obtained by other means
Rule 26(b)(3)(B): When work product is ordered disclosed, the court must prevent opinions/legal theories from being disclosed

Regular Work Product: Qualified Protection – requesting party can overcome protection by showing of (1) substantial need and (2) inability without undue hardship of finding the info

Opinion Work Product: Courts are split on absolute or qualified – showing necessary would be higher than for regular work product

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Protected Work Product: TESTS

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• Material can be protected even if NOT prepared by an attorney if it WAS prepared by a party (or a representative) in anticipation of litigation or for trial
• Objective Test (temporal): When was the document created? Must be after litigation is reasonably anticipatable
o Different Tests:
o “Imminent”; - strict test
o “Objective facts relating to an identifiable intent to litigate”; existence of an identifiable and specific claim; - intermediate test
o “Real possibility” of potential litigation with not specific identifiable claim
o RULE: There must be more than a remote chance of litigation – liberal test
• Subjective Test (purposive): Actual motivation for creation must relate to litigation
o Different Tests:
• 1) Documents created for assisting - sole primary motivating purpose has to be to assist with the litigation (Harper (5th circuit) – most courts find this too strict)
• 2) Litigation as a primary motivating purpose (must help with the trial); “because of” rule (no requirement to help at trial) (2nd Cir. – majority)
• Key question = is if the documents were created because of the prospect of litigation – not necessarily created to assist in the trial
• United States v. Adlman – company was trying to make a decision about doing a restructuring of its business restructuring would have tax benefit – knew IRS would challenge these benefits – co wanted to predict chances of wining – consulting arm of author (firm) – report made → memo saying strengths and weaknesses of IRS argument
o = Work doctrine under 2nd circuit but NOT 5th circuit
• Rationales
• 5th circuit – chilling effect – if lawyers knew what they prepared for litigation wouldn’t create some documents and therefore wont be able to work as well – adversary system depends on each side preparing its case well – makes it more likely will find the truth –
• 2nd circuit – If does create an internal document about possible future litigation – even if not created to assist – might hurt the proper function of the adversary process – since it would give too much information in advance to the other side
• Key phrase = “prepared in anticipation of litigation or for trial by or for another party it representative”
• For trial = for 5th circuit
• 26(b)(5) – clue about the meaning – regulates what he party is supposed to do – if “privileged” and “trial preparation material ” = short hand for all work product – also cuts in the direction of the 5th circuit

Work Product Rule is a NARROW EXCEPTION – it does NOT protect documents that would have been produced in roughly the same form if there were no prospect of litigation!

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Attorney Client Privilege:

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Any communication commission by a party in which a lawyer offers a legal opinion, theory, or advice

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Privileges

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Testimonial Privilege: Cannot be forced to testify in particular proceedings
• 5th Amend. (don’t have to incriminate yourself)
• Spousal privilege

Privileges protecting documents or compelled disclosure
• Attorney-client,
o What client tells attorney AND now what the attorney tells the client is also privilege – protects information in both directions} all need to know about attorney client privilege
• Doctor-patient,
• Clerical
• Conversations held by divorced people during marriage

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How to know what is privileged?

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Federal Rule of Evidence 501: Federal common law governs privilege law in federal claims; when state law governs, so does the state law of privilege
• “The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:
o The United States Constitution;
o A federal statute; or
o Rules prescribed by the Supreme Court.
• EXCEPTION - “But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” – use state privilege law for claim in which stat law holds
o Important because state law on privilege not always the same
• i.e. privilege between doctor patient – common – not in fed common law – therefore will matter if use state or federal law
o If claim governed by both state and federal law – variety decisions (If the evidence bears on both types of claims, some courts use FEDERAL law and others use BOTH laws
o If using BOTH laws: (1) info is privileged if EITHER law makes it privileged, OR (2) info is privileged if BOTH make it privileged, OR (3) use a limiting construction at trial (i.e., use it for one claim but not for another)
• (4) Some – use federal unless it is exclusively state law (exception = only for exclusive state substantive law)
• (5) Others – say – if both claims then can use either
o 26(b)(3) v. 501
• Work product 26(b)(3) – doesn’t piggy back on state law – even if entirely question of state law 26(b)(3) still holds (in standard issue diversity case)
• Privilege 501 – can be either federal or state law applying
• WHICH STATE LAW USE? (if state law holds)
o Most courts extend Klaxton rule – when told to follow state privilege law – determine which state law to use by borrowing the state choice of law rules in the state which they sit
• Most choice of law doctrine – say to use the state privilege rules in which they sit therefore in practice they will use the privilege law of the state in which they sit – creates practical problems – won’t know where going to bring suit therefore don’t know if can have conversation and not have to worry about discovery

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PROCEDURE: Resisting Discovery on Privilege Grounds

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• Rule 26(b)(5): Resisting party must (1) expressly invoke the privilege, and (2) describe the documents in a manner that does not reveal the information but allows the other parties to evaluate the claims (if the responding party feel like they are protected by evidentiary privilege or work product – the other party can’t just withhold those documents like they don’t exist have to object)
o Privilege Log (26(b)(5)(A)) : List the date created, creator, the recipients, the purpose it was created for, type protection, and explanation why applicable
o Rule 37(a): Parties should try to work disputes out themselves
• If can’t opposing party will file a motion to compel and party claiming privilege will file a brief in opposition to the motion to compel, supported by evidentiary material tending to substantiate the protections claimed.
• Party refusing to submit to discovery – they bear the burden of proof (on person resisting discovery) – if they fail to carry this burden the court will grant the order to compel – so ordinarily submit a lot of proof
o “In camera” review by judges: they can look at the documents
• If they conclude that it is protected by privilege – they will deny the motion to compel
• If work product doctrine – not absolute (especially regular work product) – can get the documents if make sufficient showing of substantial need and no alternative means – this burden is on the requesting party

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Waiver of Privileges Protection

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• Attorney Client Privilege:
o Client can waive attorney privilege by voluntarily disclosing protected material to any third party not subject to confidentiality
• Attorney can also do this
• Then the privilege has been waived for everyone – to have privilege need to uphold it yourselves
•
• Work Product (not as strict):
o Voluntary disclosure of work product is a waiver ONLY if the disclosure materially increases the chances that the document will find its way to the opposing party
• Inadvertent Disclosure
o Federal Rule of Evidence 502(b): Inadvertent disclosure in a federal proceeding of protected material is NOT a waiver if the party making the disclosure took reasonable steps to prevent and to rectify the disclosure
• Jump Sport Case – old rule – couldn’t put the cat back in the bag

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Expert Witness:

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testifies in general about a field or gives an opinion (they have knowledge of some scientific and technical – not within judges or jury’s realm understanding)
• Rule 26(a)(2): Mandatory disclosure of expert witnesses
o Allows the opposing side to conduct a deposition of the expert after the expert witness report is filed
• Rule 26(a)(2)(b): Experts must submit signed documents identifying opinions, qualifications, facts considered, basis for expertise, prior cases used in, a statement of compensation, etc.
• Rule 26(b)(4)(A): Opposing party can depose an expert witness
• Rule 26(e): Duty to supplement expert testimony disclosures
o Therefore if the expert comes to a new opinion and you want that to be given at trial – need to supplement to have the best chance
o If different from deposition – also need to supplement
o IF don’t 37(c)(1) - allows judge to block the testimony at trial
• Rule 26(b)(4)(B): Work product protects expert witness draft reports
• Rule 26(b)(4)(C): Attorney-expert communications are protected
o Danger – of this amendment above (B&C)
• Paid to testify and focuses on subjects on which the fact finder will have little or no knowledge – lawyers can skew the expert testimony – make them as a mouth piece for their opinion / argument ‘

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Consulting Experts:

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used in general preparation for trial – not planning to call as witness at trial but retained as part of litigation team to help with trial
• Rule 26(a): No discovery of consulting experts
• Rule 26(b)(4)(d): Parties cannot use interrogatories or depositions (except in extraordinary circumstances) to investigate consultants
o NARROW EXCEPTION: “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means,” the opposing side can obtain discovery of consulting expert materials
• Braun v. Lorillard – rare example where they are allowed to discover facts known or opinion held by the other side consulting expert
• Could learn the results – the defendant would be in trouble because the test had destroyed the tissue sample – and couldn’t conduct their own test

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Summary Judgment (general rule)

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• RULE 56 General: judgment can be entered based on the written evidence without the need for live trial can hold on the
➢ Upon motion of summary judgment – will file evidence with court to have record – will have affidavits (testimony in written form); will file documents as well – build a written evidentiary record –
➢ If this record
• Shows a genuine factual dispute finder could find either way and the applicable
• And substantive law makes that dispute material
• Then summary judgment is NOT appropriates; if not then one side can get summary judgment
• General idea – only need a trial that the court actually needs to resolve; just as authoritative just entered without trial – evidence compiled shows that there was not need for trial – no genuine dispute
• Important difference between moving to dismiss a complaint –under 12(b)(6) – focuses totally on the allegation in the complaint – not outside evidence; 56 different – not confined to the pleadings – can refer to evidence

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Three illustrative uses for summary judgment (not exhaustive):

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(1) Summary judgment can be used to weed out cases that could have been weeded out at the pleading stage if the parties’ allegations had been more specific. [Legal theory fails as a matter of law, but this became clear only after discovery.]
a. Possible for P to file a complaint that satisfies pleading but still general and doesn’t pin down the legal theory
b. Because the complaint was more general – the defendant must rely on discovery to find out that it fails as a matter of aw – if had been more detailed could have been dismissed at pleadings

(2) Summary judgment can be used to weed out cases in which the side that bears the burden of proof on some crucial allegation, which it needs to prove in order to win, fails to introduce or point to evidence in the summary judgment record to support its position on that allegation. [Party without the burden seeks judgment.]
a. If other side has not met this burden – for instance if the P sues D for slandering them - and the complaint says what the D said and may indeed be slanderous – D denies this statement – Can’t be disposed of at pleading
b. During discovery – if D thinks the P has no evidence of this – then moves for summary judgment for this complaint – this is a dispositive issue of the case if they don’t have evidence then the court should grant summary judgment

(3) Summary judgment can be appropriate when the side that has the burden of proof on some crucial allegation, which (if proved) would entitle it to win, introduces evidence into the summary judgment record supporting its position, and the other side fails to introduce or point to evidence in the summary judgment record supporting the contrary position. [Party with the burden seeks judgment.]
a. KEY: whether the record has evidence which shows have genuine dispute of fact
b. Example – D as affirmative defense – unless the plaintiff can counter this with counter evidence then the court should grant the D’s motion for summary judgment
i. Material – depends on the substantive law
ii. Genuine – depends on what is in the record
• (2) and (3) – legal theory is fine difference =
o (2) Party with burden of prove has failed to produce evidence
o (3) Party without the burden of prove has failed to produce evidence
• Both P and D can seek summary judgment

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Standard for Summary Judgment

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Rule 56(a): Standard for Summary Judgment – NO GENUINE DISPUTE AS TO MATEIAL FACTS
• A court SHALL grant a motion if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law
• After the motion is made, either side can file discovery materials and/or sworn affidavits with the court to create the summary judgment record to be considered by the court, which also includes the pleadings (mere allegations in the pleadings are NOT evidence)
o RULE: Could a trier of fact, applying the rules as intended, decide either way?
o (c)(1) – how show that there is this above – refers to evidentiary material in the record
• Record
• Discovery material not filed with the court; 5(d)(1) – says they must not until they are used at the proceeding (cut back on filing)
• But when move for summary judgment either side can file documents or testimony transcripts – if properly filed they become part of the record the court considered for summary judgment
• Includes the pleadings –
o Help identify and limit the issues that are open in the case
o They result in admissions – if admit thing in the complaint – judge will find this as true even without evidence
o Relevant to help frame the issue – but not themselves evidence – except for admission

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Celotex v. Catrett:

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Summary Judgment

EXAMPLE TYPE #2: Party without the burden moves for summary judgment because the opposing party fails to produce evidence sufficient to meet its evidentiary burden
• Celotex v. Catrett: Movant only needs to point out that the other party failed to meet its burden of evidence in the summary judgment record; no need to show that the party with the burden will be unable to prove a fact
o RULE: defendant can win summary judgment by showing that the P doesn’t have evidence that would allow a trier of fact to find the P’s allegation is true
• Key question = what evidence is in the summary judgment record – but if want to defeat this need to introduce evidence that will show a genuine dispute of fact
• D doesn’t have to prove that the P won’t come up with evidence – can just say that the record doesn’t have the evidence – can introduce
• P would then have to come forward with such evidence

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Anderson v. Liberty Lobby

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Summary Judgment


EXAMPLE TYPE # 3: Party with the burden seeks summary judgment
• Movant needs to point to evidence in the summary judgment record to support the claim
• Opposing party needs to submit evidence or point to evidence in the record that creates a genuine question of fact to rebut the movant’s evidence
• If the evidence points without contradiction in the movant’s favor, then the movant is entitled to judgment

Whether a dispute is “genuine” depends on the evidence in the record
• Anderson v. Liberty Lobby: A dispute is genuine if a reasonable fact finder could return a verdict for either side based on the evidence (If evidence presented at trial was the same as the record could the trier of fact resolve the dispute either way)
o A judge must view the evidence through the prism of the substantive evidentiary burden
• (e.g., preponderance of the evidence vs. clear and convincing = higher standard)

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Example When no genuine dispute: (Summary Judgment)

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• Scott v. Harris: A conflict between a statement and video evidence was not a genuine dispute – when opposing parties tell contradicting stories, one of which is contradicted by the record, the record’s version of events should be adopted
o Main point case = usually the court will not be able to resolve dispute over the fact (i.e. Harris with no video tape) – need a trial to resolve this dispute; in actual case with video tape – this evidence was so powerful, given the video tape no reasonable jury could have found for P unless it was doctored (no evidence to show this)
o EXAMPLE – summary judgment is not for resolving the genuine disputes is what the trial is for – but if the other side is SO MUCH stronger – then the dispute is not
o Dissent – thought should still go to trial – being close to the line doesn’t tell us which side of the line; could possibly still allow it to go to trial
• Some arguments why should agree with dissent – experiment with the video tape – found people had different interpretations – some people thought it wasn’t danger – correlated with demographics – why we have juries for different points of view and should let the question go to the jury
o Unusual – are some cases like this example – P sues D for assault –discovery P says that was beat up by tiny green men and D told them to do this – NO
GENUINE DISPUTE OF FACT

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Example there IS genuine dispute of fact: (but still failed) (Summary Judgment)

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• Bias v. Advantage Inc. (966) – → there is a genuine issue of fact -
o Basketball player dies of drug over does – insurance issue
• D’s argument relies on the facts 1) P was drug user 2) no insurance company would insure a drug user → moved for summary judgment
o Evidence =
• D - two witnesses
• P – parents and coach saying they didn’t know he used drugs and passed drug tests; was not enough to create a genuine dispute of fact – the D’s witnesses were about a specific instance and the parents testimony they did not know him to be a drug user
o Evidence P would need (CB 968*) =
• 1. Rebuttal testimony with other people at the particular party to testify that he wasn’t using drugs;
• 2. Could introduce some evidence to undermine their credibility etc. – show that they have a reason to lie (both of these witnesses were both there the night that the P died and they were let off for rolling over testifying to the person supplying – might undermine their credibility about the drug supplier but no reason to lie about Bias’ drug use)
o Main Point: there if a genuine issue of fact – need to submit more evidence (i.e. to person’s credibility etc. – i.e. slip and fall case and no one saw it – submit ev. this person is a liar)
o Court held – that no reasonable jury could have concluded that witnesses weren’t telling the truth

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Summary Judgment Procedure

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Rule 56 Procedure:

Parties file briefs and evidence and should guide the judge to specific documents in the record!
• Once made motion - each side can contribute to the evidentiary record
o File evidence in written form with the court
• Also file legal briefs – (56(c)(1) – requires each party to support its assertions in the legal brief by directing the court to those parts of the evidence)
o Moving party’s – will say why summary judgment test is satisfied
o Opposing party – will try and say why it is not satisfied
• Relationship between evidence filed and legal briefs
o In briefs need to guide the court to the passage in the pieces of evidence they want the court to consider (i.e. point to page 112 of the testimony blah blah)
o Court wont read all the evidence – not an unguided review
o Even if the record does contain evidence – don’t have to consider it unless the parties calls it to their attention – other wise waiver their right to have this consider
o 56(c)(3) – gives the court discretion to consider evidence not cited by either party (not required to, only required to consider the cite evidence)
• 56(e) – if fail to address fact
o i.e. needs to be specific
o P’s lawyer is required to point to something in the record that rebuts this – if fail to point to this evidence they will rule for the defendant
• Parties can also object to certain evidence in the record
o I.e. 56(c)(4) – If seeks to use a sworn avadavat – written form of testimony but has to admissible as live testimony (therefore can object to this)
o Objections can be waived – if you don’t object to evidentiary element – wont be in position to argue the court should have object this
• Only for summery judgment if it is denied can object at trial
• If outside the pleadings
o 12(d) – the district court has a choice
• 1) They can treat this a 12(b) and exclude evidence outside the pleadings
• 2) Or could consider the outside material and treat them as summary judgment motion under 56
• If takes this later route needs to give all the parties to present all the material that is pertinent to the motion
• 4th circuit has interpreted this to mean – supposed to give the parties some indication of what it is doing – so those opposing the motion now to submit evidence of their own to rebut this

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Summary Judgment Timing

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Rule 56 allows summary judgment motions immediately after pleadings are filed – no need to wait for discovery
• Rule 56(b): 30 day after discovery outer limit
• Rule 56(d): If you haven’t YET come up with evidence to defeat the motion, you can file an affidavit explaining why and why more discovery is necessary
o SDSD If believe further discovery will have necessary evidence – file motion as to why need more time and what think will get
o Court can deny the summary judgment or defer judgment until you have time for discovery

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The Right to a Trial by Jury

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A federal district court will not empanel a jury unless one of the parties properly demands it!
• Rule 38(b): A proper demand must be made within 14 days of the service of the last pleading directed to the issue on which the jury is directed
o 81(c) – time frame for when moved from state to federal court
• Rule 38(d): A right to a jury trial is waived by failure to make a timely demand
• Rule 39(b): A judge has discretion to grant a jury trial if one could have been timely demanded
o But doesn’t have to grant this

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Right to Trial by Jury 2 Sources:

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1) US Const. Amend. VII: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States (only federal courts – state courts write this right in their constitution), than according to the rules of the common law.”

2) Federal statutes – can expand upon the 7th amendment – statutory right to trial by jury


The right to a jury trial only applies to cases that would have been brought in a court of law, not a court of equity.

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When have claim one equity and one legal which goes first?

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o Bottom line = when a single case has claims that trigger trial by jury right – 7th amendment requires court to hold jury trial first

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LAW OR EQUITY?:

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Constitutional Inquiry
(1) Is there a close historical analogy between the action at issue and a common law cause of action that existed in 1791 in England? If yes, that controls.
(2) If there is no analogy, then look at the remedy: if the claimant is seeking equitable relief, then no jury trial; if the claimant is seeking compensatory or punitive damages, then a jury trial.
• EQUITY
o Equitable relief i.e. an injunction – then will conclude equity (not involving money)
• LAW
o Other hand if compensatory damages or punitive damages – then will say this is common law and has right to jury
• Some less clear –
o Disgorgement – can be disgorgement of gains – could be “money” – can’t conclude just based on monetary relief
o If looks like punitive damages = LAW

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Declaratory Judgment and Right to Trial by Jury

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(3) A declaratory judgment triggers a right to trial by jury only if, in the absence of declaratory judgment, the action that would have been brought is legal, not equitable. (Must think about what the remedy would have been before declaratory relief – and then judge based on that)

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2. The Order of Proceeding at Trial

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1) Select the jury –
2) Parties lawyers give opening statements – (not evidence but give preview of evidence plan to introduce – tell what to look for)
3) P’s first witness – case in chief – once finish putting on their case
4) Then D – can move for judgment as a matter of law – if denied
5) D will put on the evidence for their case in chief
6) P – rebuttal witness
7) D- rebuttal witness
8) One or both party may motion for judgment as matter of law – if not awarded
9) Closing statements
10) Judge gives instructions …

11) Read the instructions
• Rule 49: Can be special or general (or general with specific findings on subsidiary issues)
12) Jury deliberates
• Rule 48: Must be unanimous unless otherwise agreed

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Jury Instructions

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• Lawyers (submit instructions) for both sides discuss their desired instructions at a “charging conference” = away from jury with judge
o Rule 51: Arguments about instructions are only preserved if there is a timely objection before the instruction is given to the jury
• If disagree with instructions must object and say why
• If the jury rules against you – then instruction error is best way to get an appeal – rule 51 – have to have made this timely object
o Exception: Rule 51(d): Appellate courts can entertain “plain error” complaints even in the absence of timely objection
11) Read the instructions
• Rule 49: Can be special or general (or general with specific findings on subsidiary issues)
12) Jury deliberates
• Rule 48: Must be unanimous unless otherwise agreed

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Motions for Judgment as a Matter of Law (BEFORE JURY VERDICT)

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Rule 50(a): During a jury trial, before a case is submitted to the jury, either party can move for a judgment as a matter of law
• RULE: If the opposing party has been fully heard on a dispositive issue and the evidence on the record is not sufficient (so weak or one sided) to allow a reasonable jury to rule for the opposing party, the court can grant the motion
o Draw all permissible inferences in favor of the nonmoving party
• MJML v. summary judgment – words are different
o Not “genuine dispute” about genuine issue of fact
o 50 = legally sufficient legal basis –
o But the test is identical to rule 56 – except the rule 50 test is applied to the evidence at trial rather than the summary judgment record
• Question: could a reasonable jury find in favor of the non moving party
o If yes – deny motion
o If no – grant the motion as a matter of law
• During jury trial – federal district judges won’t make judgment as a matter of law unless a party makes a motion – must be done before the case is submitted to the jury – used to be called motion for a directive verdict

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Motions for Judgment as a Matter of Law (AFTER JURY VERDICT)

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Rule 50(b): If the court does not rule on the motion for a directed verdict, the cause is submitted to the jury only conditionally, subject to a renewal of the motion; if the jury delivers a verdict against you, you have 28 days to renew the motion
• Test = the same legal sufficiency test under 50(a) difference = the (a) one is made before and (b) is made after

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Mechanics of Motion for Judgment as a Matter of Law

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You can waive your right to motion under 50 – if want to preserve …
• 1) Need to make a motion under rule 50 (a) – before the case is submitted to the jury
o If you don’t – and the jury returns a verdict for the opposing party – if try to make motion under 50(b) – even if you are correct and you were entitled to a judgment of matter of law PROCEDURAL PROBLEM – didn’t submit before
• Must move under rule 50 (a) if you alter want to move under rule 50 (b) → (b) = a renewal – if don’t make it under (a) waive your right under (b)
o Other side can waive your waiver – if the opposing side fails to point out your mistake – and just makes an argument that there is enough evidence – then the judge can consider your motion and grant it if they see fit
• The opposing side must therefore point out this procedural error
• Unitherm v. Swift: RULE: Cannot raise the issue on appeal if you did not renew the motion
o Facts: Under 50(a) – made a proper motion (the D) – the trial judge denied that motion and the jury came back for the plaintiff – the defendant never renewed it motion under (b)
• Just asked for an appeal – the judge said they couldn’t remand and – couldn’t just make it under 50(a) – should have renewed under rule 50(b) – after the unfavorable verdict

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Why have to make motion for judgment as a matter of law twice

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• Why have to make argument twice? – This may sound silly since have the same argument for (a) and (b) – and no point in making this argument twice –
o = Judge has reason to submit question to jury even if thinks not reasonable jury will find for opposing party (even if thinks moving party is correct)
• If grant motion: The opposing side will appeal the motion as a matter of law and the appellate court thinks the district court was wrong – then they will have to have a new trial –since never had a verdict of the trial and can’t reconvene the old jury need to get a whole new trial
• If deny motion to get the jury’s judgment on the record:
• If jury rules for you = no problem
• If not you will renew your motion: if you are correct the judge will enter judgment as a matter of law despite the jury’s verdict – the losing side will appeal –
o But this time know what the jury said – the appellate court can remand the trial here instead of ordering a new trial – therefore don’t need a whole new trial – saves everyone lots of time an money = why a lot of judges would deny under (a) and then allow under (b) (WHAT UNITHERM SAYS ABOUT RULE 50) – is why need to make both (a) and (b) if want to appeal

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Galloway v. US:

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How Rule 50 is Constitutional:

Galloway v. US: The 7th Amend. does NOT freeze in place the procedures of 1791 – it just preserves the fundamental elements of jury procedure – procedural innovations are ok as long as they don’t violate the fundamental institution of jury trial
• Rule 50 is constitutional because it is analogous to a demurrer to the evidence, which allowed common law courts to take issues away from the jury (one party conceded all evidence but claimed it was insufficient to sustain a verdict)
• But if one says preserves only the most fundamental elements – where draw the lines?
o Current doctrine – that line is NOT CLEAR – rule 50 and rule 56 are on the safe side of the line however

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Motions for a New Trial

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Rule 59(a): Motions for a New Trial (throw our results first trial and grant a new one)
• No spelled out reason – the court can grant the new jury trial for any reason traditionally accepted as ok for granting a new trial
• Rule 61: HARMLESS ERRORS = disregarded
o Disregard all errors or defects not impacting any party’s substantive rights
o But if it effects substantive rights – then new trial granted
• I.e. if the judge grants the jury instructions of the defendant’s instruction and the P objects and the judge overrules this – the jury then returns a judgment for the D – if P files for motion for new trial – if this motion persuades the judge that this instruction was wrong
• The judges however are reluctant to rule differently than they did – but does happen (pressed for time often)
• Preserving an objection to a ruling that was wrong or prejudicial is grounds for a new trial
• Hulson v. Atchison: the 28 day deadline for filing a motion for a new trial begins to rune from the date of the entry of the judgment; the district court does NOT have discretion to extend the deadline (Rule 6(b)(2))

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3 Reasons for a New Trial (common ones)

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• 1) Judge committed an error that affected the trial (see Rule 61)
• 2) Jury’s verdict is against the manifest weight to the evidence
o Verdict was against the weight of the evidence = judge thinks the clear weight supports the other side – even if reasonable jury could find this
• New trial
o DIFFERENT from legally sufficient test (Rule 50) “legally insufficient” = no reasonable jury could have found for the opposing party
• Verdict (not new trial)
• 3) Jury’s verdict award of damages is excessive or inadequate
o If D claims the award is EXCESSIVE:
• (1) Grant the motion, OR
• (2) Remittitur: announce that D’s motion will be granted unless P consents to a reduced award of a specified amount
• Need P’s permission because – would violate the P’s right’s to jury trial – the 7h amendment
• Do NOT need D’s permission/consent
o Seventh Amend.: This is ok because the jury essentially already found the lower amount of damages on its way (up) to finding the excessive judgment
o If P claims the award in INADEQUATE:
• Grant the motion
• OR some states have – Additur:
• Dimick v. Scheidt: Seventh Amend. forbids federal courts from using additur unless both parties consent (essentially, the court brokers a settlement)
o Why only need for additur
• 1) Historical precedent – remittur has historical precedent and additur does not
• 2) R – passed this amount on the way up – not true for A

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59(e)

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– addresses motions to amend and alter judgment
• If it violates some legal principle i.e. a cap on damages and the judge awards more than that

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Post Trial Motion Timing

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(50(b) 59(a)(e)
• All have strict time deadline – 28 days after the court enters judgment
• Rule 58 – address entering judgment-
o Date judgment is not always the same day of the jury returning their verdict
• If simple case- usually enter the judgment the same date
• If more complex may not be the same day
• Above time wont start to run unless “entered” under the requirement of 58
• 6(b)(2) – court cannot extend the time to act (including rule 50 and 59 been taking about)
o Title v. United States: extended timeline – can’t do this under 6(b)(2) therefore the party lost
• Very important to meet 28 day deadline
o 1) If file a timely motion – won’t have to file for appeal until after the enter judgment on your motion
o 2) If miss the deadline – will either be denied out right or under rule 60 will be relief from judgment – less reasons available for this
• 28 day deadline DOES NOT APPLY TO RULE 60 BELOW

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Motions for Relief from Judgment

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Rule 60(b): Relief from Judgment
• Rule 60(c): Motion must be made in a reasonable time and not more than one year after judgment for the first three reasons under 60(b)
• Changed circumstances are usually not good enough for money damages (maybe for equitable relief)
• Construed narrowly, especially if the relief is backward-looking
• Rule 60(b)(2): Relief based on “newly discovered evidence” that a party could not find in time for trial/a new trial under Rule 59
o (1) Movant must show that evidence is so powerful that it would probably change the result AND
o (2) Movant neither knew nor had reason to know about the evidence at the time of trial AND
o (3) Newly discovered evidence must relate to facts in existence at the time of trial
• A new treatment for injuries – won’t work for this – don’t want to reopen whenever there is anew reason to think wasn’t correct the first time
• Rationale: Will lose finality – don’t want the P to worry the money he collected isn’t really his and wont spend it on things to make his life better now
• Rule 60(b)(6): Relief for “any reason” – a change in understanding of the law is not enough – you must APPEAL the judgment
o Changes in understanding of the law don’t open past cases – the way they can attack the judgment is to file a timely appeal – don’t let them use rule 60 as a substitute for an appeal

• Federal District Courts are reluctant to do this – non money v. money damages
o Especially when backward looking like damages more likely to look at forward looking relief i.e. an injunction
• If things change RULE 60(b)(5) → can ask the court to vacate the injunction because of the changed circumstances
• But changed circumstances aren’t a good enough reason for money damages
• Want the wining party to be confident they can collect that money and won’t have to pay it back

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Claim Preclusion

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Basic idea of “claim preclusion” and “defense preclusion”: A final judgment on the merits of a case by a court of competent jurisdiction bars the adverse parties from subsequently raising claims or defenses against each other that should have been raised in the first suit.
• Can be used to defeat claims not raised/litigated in the original suit
• Triggered by a final conclusion on the merits – doesn’t mean have to be after the trial
o Default judgments, pleadings-stage ruling, summary judgment, etc. are “on the merits”
• If NOT “on the merits” = NOT preclusive
o Personal or subject matter jurisdiction
o Failure to include indispensable party
o Dismissal for jurisdictional issues, failure to join a necessary party, etc. are NOT preclusive

Typically, a final judgment by a federal court will bar the original claimant from pursuing a separate suit against the same D on the same claim or other claims arising out of the same transaction or occurrence that could have been brought in the first suit (MOST COMMON FOR STATES – also have older tests “primary rights” and “same evidence test”)
• The federal common law test mirrors the test for a compulsory counterclaim
o Rule 13(a): when P sues D in federal court, D MUST raise as a counterclaim any claim against P that he has stemming from the same transaction or occurrence
• EXCEPTION: If P has a claim against two Ds but only brings suit against D1, if P does not collect everything he wants from D1, usually the claim preclusive effect of the judgment will NOT bar the P from bringing a separate suit against D2 EVEN THOUGH the claims against D2 arise out of the same transaction/occurrence
o RULE: claim preclusion applies to actual adverse parties

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Defense Preclusion

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• RULE: A judgment is still binding even if D becomes aware of a defense that would have saved the D at the original trial
o Ex. – suppose P sues D for anti trust violations - disagrees and rules for P
• P proceeds to try and collect – in this proceeding the D argues the judgment shouldn’t be enforced since had a statutory of limitation defence – this argument WONT WORK – precluded
• P can collect even though this defence would have been valid in the original law suit

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Jones v. Morris Plan Bank:

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When a note comes due, in full, due to late payments, and P only seeks collection on the missed payments to date, P is precluded from seeking compensation for all subsequent missed payments
• D late on payments bank (P) sues for these payments D doesn’t show up – direct verdict for P
• After D doesn’t pay again – precluded from adjudicating these

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Federated Department Stores v. Moitie:

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Judgments can have claim preclusive effect even if subsequent precedent shows that the court applied an erroneous view of the law; you must directly appeal the case
• To get out from under an erroneous judgment – need to appeal and persuade the appellate court to revser = direct review
• Rather than trying to collateral attack = in some other proceeding

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Claim Preclusion Procedure

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Under Rule 8(c), res judicata is an affirmative defense that must be asserted in the answer; D should then move for summary judgment under Rule 56 and build a summary judgment record that demonstrates the claim preclusion
• Courts will NOT sua sponte dismiss – usually the court won’t even know about the prior litigation
• D must file a motion – will likely have to rely on something outside the pleadings to establish what he needs
o Motion for summary judgment under rule 56
• If didn’t raise this in his answer – might be waived – but rule 15(a) – does permit amendments to the pleading at judges discretion so might be able to get it back into the case

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Issue Preclusion

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Basic idea of “issue preclusion”: A final judgment by a court of competent jurisdiction can also bar a party to the original suit from re-litigating issues that were actually litigated and decided in the first suit after the party had a full and fair opportunity to be heard, if the determination of those issues was necessary to the judgment that was entered.
• How different from claim preclusion: not about a claim – is about a FACT – when court has decided on a factual issue on one case and then this issue comes up in the second case – the party can be precluded from litigating this issue
o Can be true even if deal with 2 different claims of relieve

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3 Conditions for Issue Preclusion (+1)

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1) Issue in question must be actually litigated and decided
• Russell v. Place: An issue is not precluded from re-litigation if there is no evidence on the record to indicate that the jury decided on the issue in delivering its general verdict – the issue was not “actually…decided”
o Court allowed the second case because uncertainty – was a GENENERAL VERDICT
• Tactical Issue for Lawyers: general or specific verdict?
o General verdict – easier to defend on appeal
• BUT – less preclusive effect on subsequent cases
o Specific Verdict (spells out the jury’s reasoning) - more preclusive effect
o Rule 52 – in bench trial – judge must provide moderately detailed of how resolved the issue and came to their conclusion –
• Therefore more preclusive effect
2) Issue must be necessary to the judgment in the 1st suit for it to preclude
• Rios v. Davis: It is the JUDGMENT and NOT the VERDICT or conclusions of fact that constitute the estoppel – a finding by the jury or a court which does not become the basis or one of the grounds of the judgment rendered is not precluded from re-litigation
o First suit: jury – found ALL WERE CONTRIB. NEG – co. couldn’t recover and Davis couldn’t recover
o Second suit: Rios sued Davis for negligence – Davis made contributory negligence claim – said based on last case which decided all were negligence should
o Ct. – said the finding about Rio’s negligence was not the issue in the previous suit – even if found Rios wasn’t negligent Davis still couldn’t have recovered
• Because of the conclusion about Davis’ negligence Rios’ negligence doesn’t matter = wholly immaterial to the judgment
• Therefore – doesn’t have issue preclusion effect since requirement – must be necessary to the judgment in the 1st case
3) Courts split over question: does Russell call for different results of the jury in the first action makes specific findings of act on each of the alternative grounds? (2 grounds)
• Some states – supported by 1st restatement – BOTH SHOULD HAVE PRECLUSIVE EFFECT – each holding is sufficient
• Other states – supported by 2nd restatement – NEITHER SHOULD HAVE A PRECLUSIVE EFFECT
o Neither is a necessary basis for that judgment
• Circuit Courts spit on this issue as well for federal issues
In general, a DEFAULT JUDGMENT does NOT have ISSUE preclusive effect
• Baldwin v. Iowa State: Making a special appearance to contest jurisdiction is sufficient to preclude the issue of jurisdiction from being re-litigated; should appeal the decision instead
o If D had made no appearance whatsoever – can challenge in a separate suit (collateral suit)
• Condition missing = issue WAS NOT litigated
o When judgment entered by default – WILL NOT HAVE ISSUE PRECLUSIVE EFFECT – no issues actually litigated in the D’s absence
• CAN HAVE CLAIM PRECLUSIVE EFFECTS

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Who Can Invoke (and Who is Bound By) Prior Judgments? - CLAIM PRECLUSION

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CLAIM PRECLUSION: In general, this operates only between the adverse parties
• Both the claimant and the target of the later suit must have been parties to the original suit
• EXCEPTION: Privity (e.g., assignment of a right to sue)
o i.e. – sue D and court rules in favor to D, then you assign to 3rd party the right to claim same claim against the D
• Even thought 3rd party wasn’t a party to the first suit – will still be precluded because in privity through P of the 1st party

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Who Can Invoke (and Who is Bound By) Prior Judgments? - ISSUE PRECLUSION

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Who is bound: A party is bound only if he was a party to the original case (or in privity with a party to the original case)
o Rationale: if haven’t had your day in court – should get to have it
Who can benefit: courts have moved away from the requirement of mutuality (Bernhar)
• Defenses Nonmutual Preclusion:
o Case #1: P v. D1; judgment against P.
o Case #2: P v. D2; D2 invokes issue preclusion with respect to some issue that was resolved against P in Case #1 (and that was necessary to the judgment for D1)
• D2 – allowed to benefit from issue preclusion even though was not a party to first suit (mutuality requirement)
o Allowed This: Blonder-Tongue: Defensive Nonmutual Issue Preclusion is valid – common federal law – allows defensive BENEFIT
• A D, not a party to an original suit, can invoke issue preclusion against a P that has already lost on the issue
• Rationale: Efficiency, P has already had a full and fair hearing
• Offensive Nonmutual Preclusion:
o Case #1: P1 v. D; judgment against D.
o Case #2: P2 v. D; P2 invokes issue preclusion with respect to some issue that was resolved against D in Case #1 (and that was necessary to the judgment for P1
• If let P2 use issue preclusive effect to establish their claim for relieve – would be allowing no mutual benefit of issue preclusion
o Allowed This: Parklane Hosiery v. Shore: Offensive Nonmutual Issue Preclusion is valid – courts have discretion to allow this
• A P, not a party to an original suit, can invoke issue preclusion against a D that has already lost on the issue
• Not as categorical in offensive – but Parklay – says they have discretion to do this (majority) – some situations when against offensive:
• If P2 could have easily joined in the first suit then DON’T ALLOW THIS
o Attempt to gaur against the risk – of creating artificial incentives to sit on the sidelines
• When doing so would be “unfair”
o 281** - Examples
o i.e. for small or nominal damages in 1st suit – therefore D wouldn’t do that much to defend itself – and then the next suit is much more money in controversy – then seems unfair
o When 2nd action affords the D procedural opportunities unavailable in the 1st action that could readily cause a different result
• A party is NOT bound by a judgment if it was not a party to the suit
o Taylor v. Sturgell: In general, federal preclusion doctrine is NOT receptive to preclusion based on virtual representation – you are only bound if you have your day in court (some exceptions, e.g., class actions – p. 1295*)
• Martin v. Wilks – judgments DO NOT preclude outsiders (even if defendant in the case is the same)
o First case does not preclude the second – the white firefighters were not a party to the first suit *** - unlike Blonder Tongue –
• The person trying to invoke issue preclusion (the city) was a party to the first law suit
• And the white fire fighters weren’t
o Supreme court didn’t say it would be unconstitutional – the courts point = the existing preclusion doctrines do not call for issue preclusion here
• Interrupt rule 24 – people can intervene if they want to but not precluded by the judgment if choose not to
• Said this makes sense – if judgment binds outsiders who know and intervene – makes them have to figure how likely they will win
• Says up to parties in the law suit – should decide if they should join this other plaintiff
o CONGRESS HAS CHANGED THIS RULE FOR EMPLOYMENT DISCRIMINATION CONTEXT – BUT ALLOWED EVERYWHERE ELSE

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Rationale Against Nonmutual Issue Preclusion

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o Efficiency (made in Blounder Tongue)
• May apply more to defensive rather than offensive (said in Hoisery
• Why – think about how litigants are likely to react to this
• Defensive – if P loses – then D2 will win but if P wins – they will need to relitiagte – will need to win 2 suits
• Give D2 2 bites of the apple – therefore have incentive to bring both D1 and D2 in the same suit
• = actually promotes efficiency
o Accuracy
• Example with train crash – many people sue rail road and 26th verdict = an anomaly –
• If support offensive issue preclusion – (left) then all bound by this and don’t know if this first case is anomalous – if this was anomalous there is some chance magnifying an anomaly – and this works against the RR
• Therefore the Ps have no chance of suffering from an anomaly – and RR will

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Rationale For Nonmutual Issue Preclusion

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o In the train hypothetical – in a logical matter – if the same evidence for the cases – then should be the same result for all of this – either were negligent in driving the plane or not
• But other side either all correct or all erroneous} 50% chance that the 1st case will be right or wrong therefore magnify both bad and good consequences of the cases
• Premised on the idea more likely to be correct
o Incentives for parties-non mutual issue preclusion – actually makes the first case to be more correct than not
• 1 through 50 have a big incentive to make sure the first case wins – to increase the chances will schedule things so first case has an unusually sympathetic plaintiff
• D has competing incentives – might try to delay this case or settle with this child
• RR will have a lot at stake – if loses will lose then next 49 cases
• That might mean that allowing the offenses preclusion isn’t a great deal for P1 } RR will put a disproportionate amount of resources into the first case
• Another reason reduces reliability of the first case – disproportionate effort – RR put more in since so much at stake
• Can make same argument for Defensive issue preclusion – will have an incentive to bring a suit against a whole bunch of Ds
• But juries might have a harder time judging these big cases - -harder to get accurate results

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1) Preclusive Effect that a State Must Give to Another State

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1) Preclusive Effect that a State Must Give to Another State
• Art. IV Sec. 1: Full Faith and Credit Clause: “Full faith and credit shall be given in each state to the…judicial proceedings of every other state…the Congress may by general law proscribe the general manner by which such acts may be proved”
• Full Faith and Credit Statute (28 USC 1738): the records and proceedings of any state court shall have the same effect in all other states as they would have in the state where it was rendered
• RULE: Use the preclusion rules of the state rendering the judgment
o Dominant modern view} taken together require when the courts of state number 1 rendered a judgment and state number 2 must give that judgment at least as much preclusive effect as the first state would
o Some disagreement about what aspects of preclusion this should cover →
• Miller Treaties – argues that these 2 above – only pick up the core aspect of the preclusion doctrine not peripheral issues
• Others reject this – says it includes all aspects

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2) Preclusive Effect that Federal Courts Must Give to a State

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• 28 USC 1738: Every court in the US (including federal courts) must accord the same preclusive effect to a judgment as the rendering state would
• GENERAL RULE: A federal court should afford a state judgment the same preclusive effect as it would have in the rendering state
o This remains true even if the state court decided a federal issue – the preclusive effect is still determined by state preclusion doctrine

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3) Preclusive Effect that States and Federal Courts Must Give to Federal Courts

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• Semtek: Federal common law governs as long as there is not a statute on the issue (there are none) (a FRCP would probably violate the Rules Enabling Act)
o RULE: The Constitution federalizes the issue of federal preclusion doctrine (this is beyond the reach of state lawmaking power) – uniform federal doctrine of claim and issue preclusion determine to what extent the judgments of state courts will have in federal court
• For diversity suits, use the preclusion rules of the state in which the federal district court sat
• UNLESS state preclusion doctrine might be incompatible with federal interests