Civpro Cases

Front 1

Mas v Perry

Back 1

 Determining citizenship for purposes of 1332: where you’re domiciled (now regardless even of if you’re a US citizen)—it doesn’t matter if that state considers you its citizen, this is just for purposes of S 1332. Domicile = true fixed permanent home and principal establishment and to which he has the intention of returning to/intent to remain. Can only be changed by creating a new domicile. Domicile determined at date of filing of suit.

Front 2

Hertz

Back 2

 Corporations: citizens of state where they’re incorporated and the state of their “nerve center”.

Front 3

St Paul Mercury v Red Cab

Back 3

assume good faith on P’s claimed damages unless it’s clearly erroneous as a matter of law

Front 4

o AFA v Whitchurch

Back 4

you have to take into account value of injunctive relief from P’s perspective in calculating amount in controversy

Front 5

Exxon v Allapattah

Back 5

as long as named rep meets AIC req other claims can have supplemental jurisdiction exercised over them.

Front 6

Osborn

Back 6

 Constitutional grant of fed question jur extends to all cases in which a federal law is “an ingredient” of the case—“arising under the Constitution, laws of the U.S., and Treaties”

Front 7

 Cohens

Back 7

Case can come to arise under federal law within the meaning of Article III once a federal question is injected into it and the substantive outcome turns in part on a point of Federal law (but that doesn’t mean fed courts have jurisdiction over it then—that requires that Congress have given fed courts jurisdiction to hear it too!)

Front 8

Mottley

Back 8

1331 is based on a well-pleaded case, i.e., you just look at P’s original complaint to determine if a federal question is included

Front 9

Skelley

Back 9

In case of declaratory judgment, imagine if no declaratory judgment and see if either party could have brought a well-pleaded complaint; if so, it can have fed question jurisdiction.

Front 10

Franchise Tax Board

Back 10

Not every federal issue will do for 1331—it has to either pass the creation test or be substantial + its resolution must be necessary to the case.

Front 11

Shoshone

Back 11

Suits can pass the creation test for fed question jur but be so unimportant that they still don't get fed question jur

Front 12

Smith

Back 12

even if a suit fails the creation test, if there is a substantial federal question that is necessary to a P’s well-pleaded complaint, it can still arise under federal law within the meaning of 1331. his claim needed to prove that a federal grant of power was unconstitutional; that wasn’t his cause of action, but it was a necessary to his complaint.

Front 13

o Merrell Dow

Back 13

an example of not meeting this test because Congress chose not to create a federal cause of action where it clearly had the opportunity to do so, so we assume Congress didn’t want fed courts to have fed question jurisdiction over that type of case—it’s not “substantial” within the meaning of the Franchise Tax Board test

Front 14

Grable

Back 14

if Congress hasn’t spoken on substantiality (whether the kind of case should get fed question jurisdiction), we perform the Grable analysis:
 How many other cases like this will there be? Will they overrun fed courts?
 How central is the fed question to this case?
 Is the federal question purely legal or fact-specific? (Empire)
 Is there a fed interest in having a fed forum for this kind of case?

Front 15

Gibbs

Back 15

arising from a “common nucleus of operative fact” are one case within the meaning of Article III

Front 16

Finley

Back 16

Woman has fed law claim against US and state law claim against San Diego, both arising from same occurrence (plane crash). Court said no supplemental jurisdiction—OVERRULED, nowadays it definitely would be allowed under 1367.

Front 17

Kroger

Back 17

P sues D in diversity, D impleads a TPD who is citizen of same state as P. P tried to assert claim against TPD, court said no (even though it would be constitutional (minimal diversity)). This is now the statutory law in 1367.

Front 18

Shamrock

Back 18

D files diversity counter-claim, P tries to remove it. Sup Ct says no: 1. Only D’s can remove cases, and you’re still a P even when responding to a counter-claim. 2. The test is whether the P’s well-pleaded complaint could have been brought in fed court, and here it clearly couldn’t have, so tough nuts.

Front 19

Rose v Giamatti

Back 19

You can’t just add D’s spuriously to defeat removability

Front 20

West Mifflin v Lancaster

Back 20

If a claim is removable under 1441(c), then it alone (and not the whole case) may be remanded back to state court—note that this is very different from 1447 (main remand statute) where only entire cases can be remanded. Courts split, though, on whether if you want to remand a state-law claim like this, and it is the main claim, if you can then also remand the claim over which the fed court has original jur. Nelson thinks the interpretation that says no (West Mifflin v Lancaster?) is correct

Front 21

Carnegie-Mellon

Back 21

Final remand authority is inferred from 1367. You’ll recall that 1367(c) gives fed courts discretion to exercise supplemental jur or not over certain claims. But what if a suit is removed to fed court? Can the fed court remand a claim that it could have chosen not to exercise supplemental jur over? Yes. This makes sense analogously because the court could have chosen not to hear that claim at all if the whole case had been originally filed in fed court.

Front 22

Thermtron

Back 22

you can’t make up reasons to remand cases! (Like having a full docket) Though note that decisions to remand under a real reason are not reviewable on appeal (except in certain circumstances like if it was removed under a civil rights act or something).

Front 23

Pennoyer

Back 23

You can’t attach land after a judgment has been entered in an in personam case. Also, you have to actually give notice to someone before you can have an in personam case.
States don’t have to give full faith and credit to other states’ court decisions if that other state didn’t have personal jurisdiction in the case.

Front 24

Hess

Back 24

made this agent-designation for out-of-state drivers implicit, that’s ok. This is a transition towards today’s current long-arm statutes.

Front 25

International Shoe

Back 25

minimum contacts test. WA mails service to Int’l Shoe’s hq in St. Louis. This is constitutional because they had minimum contacts with the state of WA.Must be enough contacts within the state that allowing the suit does not offend “traditional notions of fair play and substantial justice.” Are contacts “irregular or casual”? Are they “continuous or systematic”?

Front 26

Gray

Back 26

States might require that the tortious act occurred within its borders (this is a NY-type long-arm statute) and then different states might interpret that phrase differently. IL interprets that language to say it can start outside the state but then cause harm inside the state; NY disagrees and has to legislatively add that kind to its list. This is not a contradiction because they’re talking about state-law questions, what their state statute means.

Front 27

McGee

Back 27

CA citizen buys life insurance, TX company takes over that contract and renews it with him but won’t honor it when he dies. Did the company have min contacts with CA? We look at both quantity and quality.
• Quantity: McGee was the only CA customer of the company we know of.
• Quality: Purposeful dealing with the state. Very high in this case, TX company conducted extensive dealings with McGee.
Court decides CA can exercise personal jur over TX company. This is an extreme example of specific jur: CA couldn’t have exercised pers jur over that company with regards to any other claims at all!

Front 28

Hanson v Denckla

Back 28

Must be “purposeful availment” for pers jur. Woman establishes trust in DL, moves to FL and dies. Two of her daughters want to sue the bank; can FL exercise PJ over DL bank? FL state law says yes, but Sup Ct says that is unconstitutional.Uses “unilateral” test too—since Ms. Denckla unilaterally moved to FL, that can’t give FL pers jur over the DL bank. Dissent says “hey, they kept doing business with her after she moved!”

Front 29

World-Wide Volkswagen

Back 29

P’s buy Audi in NY, while driving to AZ the car catches on fire in OK. OK says they can sue in OK because that’s where the tort happened, but Sup Ct says in this case it doesn’t fly because there aren’t min contacts between WWV and OK.
Sup Ct says it wasn’t foreseeable for WWV to think they’d be brought into court in OK. But main reason is that they didn’t “purposely avail” themselves of doing business there—a company must be able to choose whether or not to do business in a state and thereby subject itself to courts there. Unilateral act—that drivers might go to OK—isn’t enough.
Brennan dissent wants to get away from the defendant focus—so much evidence and witnesses and other thingsare in OK in this case! Sorry, he loses on this point. But he also says the stream of commerce theory should be enough to establish min contacts.

Front 30

Calder v Jones

Back 30

writer and editor targeted CA (defaming someone there) enough to subject themselves to pers jur there. This isn’t a purposeful availment of conducting business in that state, it’s just targeting the state in general. ∆ must have
1) Committed an intentional act
2) Expressly aimed at the forum State
3) Causing harm, the brunt of which is suffered (and ∆ knew was likely to be suffered) in the forum state

Front 31

Keeton v Hustler

Back 31

P’s contacts with the state don’t matter at all

Front 32

Burger King

Back 32

Fleshes out the “traditional notions of fair play and substantial justice” bit some more. Two-pronged test:
a) Threshold question: The constitutional touchstone is that the D has to have purposefully established "minimum contacts"
b) If so, then other factors come into play to decide if those contacts are sufficiently substantial. See pg 121. Sometimes these factors are strong enough to make up for some weaknesses in the D's contacts--the D has to have some purposeful contacts for sure, but we can require less if the factors are strong. OTOH, if the factors make the exercise of pers jur unreasonable even if the D has strong contacts with the forum state. Think of this as a sliding scale. These factors are:
o Burden on D and witnesses
o Forum state’s interest in adjudicating the case
o P’s interest in obtaining convenient and effective relief
o Interstate judicial system’s interest in obtaining the most efficient resolution of controversies
o Shared interest of the several States in furthering fundamental substantive social policies.
So Int’l Shoe test has 2 parts: contacts and fairness. Burden is on D to prove unfairness—and it’s hard

Front 33

Asahi

Back 33

A Japanese company, they’re impleaded into a case but they say there’s no personal jur over them. They did know their products would be used in a product in CA—stream of commerce. But Sup Ct agrees with them: no pers jur. Lots of divisions about why. Four justices don’t think Asahi had enough contacts with CA, but even if they did, 8 justices agree that the fairness factors aren’t enough to make pers jur constitutional here: Burden on Asahi is too great, CA’s interest too small, impleader’s interest too small, we should be wary about allowing pers jur over foreign corporations, etc.
Brennan thinks the contacts were sufficient because of the stream of commerce theory. Stevens thinks volume of business should be important in determining when the stream of commerce theory kicks in.
O’Connor thinks the state must have been targeted by the D in some way—making products tailored to the state, advertising there, or something else—otherwise min contacts test isn’t satisfied. She’s writing the majority opinion, but on this point the court is evenly split.

Front 34

Perkins

Back 34

General jurisdiction - Benguet company had so many ties to the state it could be sued for any reason in the state.

Front 35

Helicopteros

Back 35

reminds us that general jurisdiction is quite rare—contacts have to be very strong for this to be an option: there is general PJ if the D has continuous systematic ties with the forum.

Front 36

Pebble Beach

Back 36

9th circuit applies Calder test to internet in Pebble Beach:
(1) commit and intentional act
(2) expressly aimed at the forum state in this case, D fails on this prong because his actions weren’t targeted at CA specifically
(3) caused harm in the forum state.

Front 37

Harris and Pennington

Back 37

Quasi in rem: traditional applications (both based on Pennoyer): as long as the property is within your borders and you attach it at the outset and you give the owner a chance to be heard, you can assert quasi in rem jur over it.

Front 38

Shaffer

Back 38

Current doctrine of quasi in rem – you need minimum contacts with the property owner now too, just like you do with in personam jurisdiction. Same test as Int’l Shoe et al.

Front 39

Burnham

Back 39

Can you get PJ over someone who’s just passing through if you “tag” them (meaning serve them with process) inside your state? Or do you now need minimum contacts? Split:
Scalia says no need for min contacts analysis—Int’l Shoe just supplements Pennoyer’s in personam jur framework, it doesn’t replace it. (channelingTevye) TRADITION! You can always be served with process inside a state, it’s just that sometimes now you can also be served with it outside the state. It will always be fair to tag someone inside the state.
Brennan says “no way dude! Clearly the Pennoyer framework is gone for QIR jur, so I think it should be for IP jur as well!” Even if tagging is traditionally sufficient, (and Brennan disagrees on Scalia’s history here) it still may not be fair. We need to analyze! (In the instant case, of course, it ends up being fair… but it might not always be!)

Front 40

Ireland

Back 40

White argues that PJ can be waived because there are no state sovereignty issues involved (unlike SMJ which has institutional and state sovereignty issues), but Nelson disagrees, saying they just only come up when parties are unwilling.

Front 41

Mullane

Back 41

sets out constitutional minimum for notice.To pass constitutional muster, notice must be “reasonably calculated under the circumstances to give actual notice.” Test:
The notice has to either be reasonably certain to inform those affected, or if that's not possible, the method used can't be substantially less likely than any other feasible/customary means to give notice.
In Mullane, this means that the trust fund had to send notices to the beneficiaries it knew about, not just publish a notice in a local NY newspaper. This was probably not a problem because the trust fund had communicated with them in this way earlier. If that would be prohibitively expensive, though, a newspaper publication might be sufficient. This is a fact-specific balancing test.
And the trust fund didn’t have to investigate to try to find every single beneficiary, they could just send mail to the ones they knew about. The ones who do find out will tend to protect the interests of those who don’t find out about it—this is important. Also important is that intensive investigation would cost a lot of money, thereby lessening the amount of money in the trust pool, something the beneficiaries wouldn’t even want!

Front 42

Jones v Flowers

Back 42

if State has reason to believe notice was not received (like the process letter, sent by certified mail, was returned unopened) it should try a backup, like possibly mailing the letter by regular mail in case they just weren’t home when the certified mail came by. This is especially true when the stakes are high (here the title to someone’s house). "The means employed have to be those reasonably undertaken by someone who actually wants to notify the D"

Front 43

Sniadach

Back 43

can't start garnishing wages at the outset of litigation—you need a chance to be heard.

Front 44

Fuentes

Back 44

Applied Sniadach to property other than wages in which both P and D had an interest in, you still have to give D opportunity to be heard before you can take their stove and record player back.

Front 45

Mitchell

Back 45

Cuts back sharply on Fuentes; similar situation, but with more safeguards (only judge can order sequestration and only with sworn affidavit of facts, etc)

Front 46

Connecticut v Doehr

Back 46

Digiovanni tried to get a lien on Doehr’s house so that Doehr couldn’t sell it to avoid paying damages. Sup Ct says no, unconstitutional. Adapts the Mathews test [see below] for attachment between private parties. Safeguards aren’t enough, P’s interest too small, D’s interest too big. You need notice and a hearing to attach a house.

Front 47

Mathews v Eldridge

Back 47

Said gov’t could terminate SS benefits w/o first affording recipients an opportunity to challenge decision. Developed Mathews test:
1) Private interests that are harmed by the pre-judgment attachment
2) Risk that existing safeguards will lead to erroneous deprivation and probable value of additional safeguards
3) Consider the interest of the P and interests of D

Front 48

Bates

Back 48

there can be multiple proper venues—the one where the debtor resides and the one where the collection notices were forwarded to are both proper in this case. It’s just where a “substantial part of events” took place.

Front 49

Hoffman v Blaski

Back 49

"in which it could have been brought" in S 1404 means only places where the P could have originally brought the suit, i.e., there was proper pers jur and venue in the proposed new location at the time of filing, i.e. where the P had a right to bring the suit, not just where the D’s have waived venue/PJ.

Front 50

van Dusen

Back 50

Under 1404 transfer (venue was originally appropriate): Don’t use the default Klaxon rule (fed courts should apply state choice of law doctrines of the state in which it sits), but rather use the choice of law doctrines of original court (where venue was proper)

Front 51

Gulf Oil

Back 51

1404 is a partial substitute for the forum non conveniens doctrine, which allowed courts to dismiss cases when venue was inconvenient. That was what fed courts used to do, and Gulf Oil said it was OK, but then Congress passed 1404. Still use Gulf Oil test to determine if it’s appropriate to transfer to a properer venue.


Public considerations: how congested is the court, burden of jury duty on a community, local interest in having a case litigated at home, appropriateness in having the trial of a diversity case in a forum that is at home with the state law that must govern the case.
Private considerations: relative ease of access to proof, availability of compulsory process for attendance of unwilling, cost of obtaining attendance of unwilling witnesses, possibility of view of premises, all other practical considerations that make trial of a case easier, cheaper, more expeditious, and enforceability of judgment.

Front 52

Piper

Back 52

fed courts can only dismiss (instead of transfer) when the properer venue is a foreign court

Front 53

Swift v Tyson

Back 53

Old choice of law doctrine - federal common law when there is no written state law governing a state claim


(1) On matters governed by a state statute or a provision in a state constitution, federal courts would defer to settled decisions of the state’s highest court about what the state statute or the state constitution meant. The same was true for matters governed by special local usages, like local usages about the transfer of real property within the state.

(2) Conversely, on matters governed by federal statutes or by a provision in the federal Constitution, state courts would defer to what the federal Supreme Court said the federal statutes or the federal Constitution meant. But

(3) On matters concededly governed by general law, federal courts weren’t bound by state courts’ view of the general law, and state courts weren’t bound by federal courts’ view of the general law.

[all still valid today except last--overturned by Erie]

Front 54

Erie

Back 54

Apply all state law to state law claims.

Best constitutional argument Brandeis was using: States decide how they’re going to make their own law, and they have all chosen to have state courts and state legislatures. Both make law—why prefer one over the other? Fed courts should respect all state law equally, whether it’s made by a legislature or a court of that state. Still a somewhat questionable foundation (states at the time probably didn’t think of their state supreme courts as “making” laws) but it’s the one that most strongly leads to Erie.

Front 55

Erie’s 4 Boxes

Back 55

i) Federal constitution rules all. If the fed constitution says law is one thing, everyone follows that, it controls. (Note though that some parts of the fed constitution, like the VII amendment, only apply to the fed government, not states.)
ii) If there’s a valid (meaning it’s within Congress’ power to enact) federal statute, court has to do that. [Fed law, though, could displace state law (saying states can’t legislate in an area) but hasn’t answered the question at issue, there is a gap. Then fed courts can make federal common law.]
iii) Follow Federal Rules of Civil Procedure if they’re on point. Hannah v Plumer
iv) If there’s no provision of written federal law (Constitution, statute, FRCP) and state law would govern if this were in state court, then it gets fun. Depends on whether it’s substantive or procedural for the purpose of Erie analysis.
a. If it’s substantive: apply state law according to state’s highest court.
b. If it’s procedural: don’t have to apply state law. Use federal customary practices, even if state court would do something else.

Front 56

Guaranty v York

Back 56

Erie analysis extends to suits at equity as well as suits at law. More important is the test for deciding whether an issue is substantive or procedural: if it’s “outcome determinative” it’s substantive for Erie purposes.

Front 57

Ragan

Back 57

go by state’s rules for when statute of limitations is tolled. State law controls whether and when service of process is necessary for a state law cause of action's statute of limitations to stop running. Fed district court should reach the same conclusion a state court should on this issue. You can't give a case longer life in fed court than in state court.

Front 58

Hanna v Plumer

Back 58

most important post-Erie case (about Erie doctrine). “Outcome determinative” test refined. Read everything in the context of the “twin aims of Erie”: 1) discouraging forum-shopping, and 2) avoidance of inequitable administration of laws. Example: paper-size rule—yes, it could determine the outcome of a case if it isn’t properly followed by one party, but it wouldn’t really make a difference in choosing between fora when deciding where to file suit ex ante. Sum: if a litigant would really choose a forum based on the issue, it’s substantive. Statutes of limitations that are shorter in state courts would clearly affect the outcome and so are substantive—see Ragan and Cohen. In Hanna, they decided that there was a valid FRCP that told how to serve process, so we weren’t even in box 4—just apply the valid fed rule.

Front 59

Walker

Back 59

a lot like Ragan—issue is whether the fed court should apply state law or FRCP in determining when an action is commenced for the purposes of tolling the statute of limitations (Ragan was about when it ends, not when it begins). But the question is: did Hanna implicitly overturn Ragan and say that there’s a FRCP that speaks to the issue of tolling statutes of limitations? No, sort of. Here, Rule 3 is determined not to speak to the issue (it speaks of commencing an action, but not for all purposes the court says) so it’s pure Erie analysis. Statute of limitations is a substantial part of the cause of action, so apply state law. The result would have been the same as in Hanna, and thus overruled Ragan, if Rule 3 were on point. Court reads that Rule very narrowly here in order to avoid overruling Ragan.

Front 60

Sibbach

Back 60

Good example of difference between the two kinds of substantive: it’s a box 3 case because there’s a FRCP at issue, and SC says that FRCP 35 (which allows a party to compel the other party to submit to a physical examination) is valid because it is within the scope of the Rules Enabling Act, i.e., it doesn’t modify/abridge/enlarge a substantive right. However, if there hadn’t been a FRCP about this and instead fed courts just decided as a matter of practice to allow it and you were in a state that didn’t allow it (i.e., this is a box 4 case)—which law to apply, the fed court practice or state law? This sounds like it is a substantive issue—having to submit to a physical exam in fed court in the state but not in a state court might very well make a party choose a forum based on that—so you would apply the state law.

Front 61

Stewart v Ricoh

Back 61

A box 2 case about forum selection clauses. Suit filed in AL fed court even though forum selection clause said all suits had to be brought in NY. Fed court said it couldn’t transfer because AL law didn’t recognize forum selection clauses. S 1404 is a valid federal statute, it says you can transfer—end of the matter (pretty much).

Front 62

Klaxon

Back 62

Use the choice of law doctrines of the state in which the fed court sits. Note that this is only possible because Congress decided to create at least one fed court in every state, which they didn’t have to do. Upside: easy to administer, no need for a big federal doctrine of choice of law. The downside of this is that it allows states to discriminate against out of state D’s even in the fed courts within their borders.

Front 63

Ferens

Back 63

van Dusen applies regardless of who moves for transfer: dirty P’s file suit in MS and immediately file for transfer to a more convenient venue—implicitly admitting they knowingly chose a stupid venue!—and succeed in getting MS choice of law doctrine applied even in the fed court in the new state. Wow!

Front 64

Mason

Back 64

in deciding what the content of a state’s law is, try to mirror what the state supreme court would say it is.

Front 65

Gasperini

Back 65

P wins a lot of money in a fed court in NY where NY law governed; 2nd Circuit reduces damages as state law says (state) appellate courts can do. But should state law control that reviewal? Ginsburg says yes, it’s a box 4 situation and it’s a substantive issue. She says the 2 candidates for written provisions of fed law—7th amendment and FRCP 59—don’t apply here. She says it’s substantive w/in Erie framework because it’s analogous to hard caps on awards, something that would clearly determine where a P would file his claim.
Scalia says no, it’s a box 3 case cuz FRCP 59 applies; but even if you say it’s a box 4er, Scalia still thinks this is a totally procedural issue and so state law should not govern.

Front 66

Shady Grove

Back 66

Class action would not be allowed in NY, but would under FRCP 23. Can a fed court in NY allow it? Majority says yes, 23 applies and makes it good to go, box 3 case.
Ginsburg says purposes are very different and so NY law is not overruled by FRCP 23. Scalia doesn’t care about laws’ purposes.
Best way to reconcile Gasperini and Shady Grove: they’re just in different boxes, man. Let it go. Gasperini had no applicable FRCP, so apply the substantive state law that prohibits forum-shopping; with Shady Grove there is an applicable class action Rule, so use it, and even though it encourages forum shopping (and Scalia admits it does) we don’t care because that is only relevant to box 4, Erie analysis, not to whether a FRCP is valid or not—that is just governed by the Rules Enabling Act, and Rule 23 passes that.

Front 67

Dioguardi

Back 67

Rule 8 taken to the (minimalist) extreme: you barely need anything at all (cue Ned Flanders: “It feels like I’m wearing nothing at all… nothing at all…”

Front 68

Doe v Smith

Back 68

Traditional pleading standard is based a lot on notice: as long as you get the point across to the D about what you’re suing him over (and it’s a valid legal theory), you’re good. As long as facts you allege have pled you out of court, you can sue.

Front 69

Conley v Gibson

Back 69

unless there is no set of facts that could prove P’s claim, he’s OK. Basically the same as the Dioguardi standard.

Front 70

Twombly

Back 70

Expands traditional understanding (how much is unclear?) saying that you need to allege enough to make the claim plausible, not just conceivable. Mere conclusory statements are not enough. Cost of large suits/discovery mentioned, but opinion was not very clear at all.

Front 71

Iqbal

Back 71

clarifies that Twombly standard (ahem) applies to all cases, not just anti-trust ones, though it is context-specific. Must be plausible, recitations of the elements of the cause of action aren’t enough.

Front 72

Riley v Vilsack

Back 72

(just a district court case) says you can’t read Iqbal too broadly—you can’t require too much from a P when it’s hard to get—but you do need more than just conclusory statements, some details to make allegations plausible are needed as well.

Front 73

Leatherman

Back 73

Courts can’t apply a heightened pleading standard on an ad hoc basis. Swierkiewicz continued this line; said heightened pleading-type cases listed are exclusive.

Front 74

Zielinski

Back 74

inadequate denial equates to admission

Front 75

Ingraham

Back 75

says a cap on damages is an affirmative defense

Front 76

Taylor

Back 76

says a cap on damages is not an affirmative defense

Front 77

Foman v Davis

Back 77

reasons why it would be OK to deny a motion to amend a pleading: undue delay, bad faith, undue prejudice, futility of amendment, repeated failure to correctly amend a pleading, etc.

Front 78

Beeck v Aquaslide

Back 78

Everyone thought Aquaslide made the bad slide, but they didn’t. Aquaslide is allowed to amend its complaint, even though the statute of limitations has passed. How to reconcile this with Zielinski? D in Zielinski looked a lot more like bad faith actor.

Front 79

Krupski

Back 79

Court gives broad meaning to word “mistake”. Also, once you allow an amendment to the pleadings, you don’t get to look at how long they took to amend when deciding whether it relates back—that only applies to whether you grant the amendment or not but is irrelevant to 15(c).

Front 80

Provident Tradesmen Bank

Back 80

Dutcher is not an indispensible party, says SC, because he won’t be bound by the judgment or if he were, the reason we would bind him (that he sat on his hands and chose not to intervene) make it sensible not to make him be a party here anyways.

Front 81

Jeub

Back 81

if D won’t have a claim against D until after P wins the suit, D can implead the TPD

Front 82

Ben Hur

Back 82

to see if diversity requirement is met, you only have to look at named representatives, not all class members; this seems to think of class members as non-parties to the suit.

Front 83

Zahn

Back 83

all class members’ claims must meet the amount in controversy requirement for there to be jurisdiction (overruled by Exxon v Allapattah, but important thing for this purpose is that it seems that the court there thought of class members as parties to the suit; Shady Grove also seems to take this view)

Front 84

Hansberry v Lee

Back 84

Previous class action can’t be used to estop new case when the representatives in first case weren’t adequately representing the interests of the whole class; only racists were represented adequately in the first suit.

Front 85

Phillips Petroleum v Shutts

Back 85

don’t need PJ over every class member for a decision to bind them (they won’t be able to later bring their own suit), they aren’t defendants so no need for minimum contacts. Argument is basically about burden on parties, territorial sovereignty is considered irrelevant/nonexistent. But this is only applicable if they’re adequately represented, they got notice, and they could have removed themselves.

Front 86

Hickman v Taylor

Back 86

You can’t get an attorney’s documents he’s using to prepare for a case, especially when you could get the same info they contain by talking to the witnesses yourself. We don’t want to let you try a case on borrowed wits. Don’t want to turn lawyers into witnesses. It would demoralize the profession. You need a good purpose to get this stuff.
Fact work product may be discoverable if it is unavailable to the opposing party (hidden away in a lawyer’s filing cabinet), but opinion work product is virtually never discoverable.
Opinion work product covers written impressions, recollections, and memos by a lawyer produced in anticipation of litigation.

Front 87

Harper

Back 87

Most courts have an objective and a subjective component to their tests of this issue. Objective component is temporal: how close to litigation was the document created? Whether litigation needs to be imminent or there just has to be a reasonable chance of litigation, this standard helps decide if a document was prepared in prep of trial. See Day 44 chalkboard for good summary of tests.

Front 88

Adlman

Back 88

if a document was prepared because of the possibility of litigation but not to prepare for a trial (like a business analysis of what might happen if a lawsuit arises—see Adlman and Jumpsport) qualify as work product.

Front 89

Upjohn

Back 89

adds some bells and whistles to AC privilege: who speaks for a corporation when it is the client? Can low-level employees’ communications count as attorney-client privilege? SC says yes, at least in this case. 6th Circuit had said no, they applied the control-group test: only the people responsible for directing the conduct of the company’s actions in response to the legal advice can benefit from AC privilege. SC says since 1) the low-level employees were asked to speak by members of the control group, 2) the control group needed their answers to decide what to do, 3) the questions concerned the employees’ corporate duties, and 4) they were told to keep their answers very confidential, their communications can be privileged although they weren’t themselves members of the control group.

Front 90

Krisa

Back 90

Rule 26 allows preliminary drafts of expert’s written report and notes used for it to be discovered by opposing party, but soon that will be protected by work product. But what about the documents you gave to the expert witness that he used to prepare—these are almost pure opinion work product!—? Krisa said those aren’t discoverable, but Musselman (more typical) says they are. Regarldess, soon (now?) they will all be protected by work product.

Front 91

Celotex

Back 91

D can win summary judgment if she points out that, hey!, P doesn’t have any evidence in the record to establish his claim! No need to show that P can’t prove the claim (like it was in Adickes), just have to show that he hasn’t yet.

Front 92

Beacon

Back 92

If there are issues of both law and equity all within one big suit, you can’t try the equity issues by judge if there are common issues of fact between those and the ones you’ll later try by jury—that estops the jury from deciding them! Used to be that an equity case could finish up before a law case and that would have the same effect of estopping the jury from deciding some issues; but Black loves trial by jury and so his expansive view of 7th amendment wins out.

Front 93

Curtis v Lother

Back 93

Modern statutory causes of action can trigger a constitutional jury right as long as they’re similar enough to a traditional cause of action, even if the new one doesn’t explicitly say so.

Front 94

Chauffeurs

Back 94

Union members want to sue their union for crappy representation and also demand a jury trial, SC agrees with them. 2-step test:
1) Is the action more like a 1791 equity or a 1791 law claim?
2) Is the remedy sought legal or equitable?
Modern analysis: if there is a close 1791 analogue to the present cause of action, history controls. But if there isn’t, it is based on type of remedy sought. [For declaratory judgments, pretend like the parties had sued each other normally and see where that leaves you]

Front 95

Galloway

Back 95

right to trial by jury isn’t completely frozen in place, procedural changes are OK. We also don’t have to use the same standard of determining whether evidence is sufficient for JAMAL as judges did in 1791 (though it would likely be unconstitutional to use a standard of “meh, I feel like it”).

Front 96

Slocum

Back 96

“conditional” submission of jury question is what makes JAMAL after a jury verdict constitutional; you couldn’t do it if it was submitted unconditionally to the jury. Hence 50b must be a renewal.

Front 97

Russel v Place

Back 97

meaning of “what was actually litigated and decided”. P had already sued at law for damages for infringing a patent and won on a general verdict. But they had made 2 claims of patent infringement, and jury didn’t say which one they thought was infringed (or both)! So D’s in this new case are not estopped from arguing that both patents are invalid. We don’t know which issue was necessary to the first judgment, so neither can be precluded.

Front 98

Rios v Davis

Back 98

accident in a contributory negligence jurisdiction. Popular Dry Goods sues Davis for damage to its truck; Davis asserts that PDG was negligent. Davis also files a third-party complaint, for damage to his car, against Rios, another driver—this is not a Rule 14 type complaint, it was not for indemnity. Rios says Davis was negligent in his defense. Jury finds everyone negligent, so no one can recover. Rios then files suit for personal injuries against Davis and Davis tries to say that the jury in the first suit found Rios negligent so he’s estopped from arguing that he wasn’t; but the court says no, that wasn’t necessary to the judgment in the first case, so it isn’t estopped.

Front 99

Blonder-Tongue

Back 99

SC starts allowing defensive non-mutual issue preclusion (DNIP). UI sued a manufacturer for patent infringement and lost because their patent was invalid. UI then tries to sue BT and BT wants to preclude UI from saying that their patent is valid. SC agrees. As long as you’ve had a full and fair opportunity to litigate the issue, you can’t argue it again.

Front 100

Parklane Hosiery

Back 100

Class of P’s sue D for false and misleading statements; while that case is pending, SEC sues D for pretty much the same claim, only for equitable relief, not damages (like P’s had done in the class action). P’s then try to invoke offensive NIP against D saying Parklane can’t argue that their statements weren’t false and misleading. Supreme Court ends up agreeing that ONIP is appropriate here (and that Parklane’s claim that they deserved a jury trial over the issue was bogus).

Front 101

Martin v Wilks

Back 101

Case #1: Black firefighters sue for racial discrimination; city settles and agrees to implement an affirmative action program; court enters a judgment on that. Case #2: White firefighters sue the city for discrimination from the AA program; city says Case #1 establishes the legality of the AA program in the context of the facts of that case because court entered a judgment approving it so it should have preclusive effect in the second case. Court emphasizes that an earlier suit can’t bind someone who wasn’t a party to it. The person you invoke issue preclusion against must have been bound by the original suit! This despite the fact that the white firefighters knew about the first suit and chose not to intervene even though they knew it might have affected their interests. Court says bullspit: we reserved this question in Provident Tradesmen Bank (can someone who deliberately chose not to intervene in a suit they could have intervened in be bound by the judgment?) and now we answer it “no.” But the court did not say it would be unconstitutional to have preclusion doctrines that would have bound the white firefighters here, they just said the existing doctrines don’t call for preclusion here. FRCP means you “may” intervene if you want, but you don’t have to and you needn’t worry about being bound by the judgment if you don’t. This makes sense because you don’t want to force all outside parties to always be looking into cases it might want to intervene in if they’ll be negatively affected by a bad outcome.

Front 102

Taylor v Sturgell

Back 102

reminds us that except in really rare circumstances, non-parties cannot be bound by a judgment to a suit: you can only be bound when you’ve had your day in court. Exceptions:
1. People can agree by contract to be bound by a judgment in a case they aren't a party to. Sometimes it's in a person's interest to be bound by some test case; that doesn't mean you don't have a right to a day in court, it just means you can waive that right.
2. Certain substantive legal relationships between the non-party and someone who was a party can justify preclusion of the non-party. If a property-owner litigates some interest in that property and then sells it, the new owner usually can't re-litigate the issue.
3. Sometimes adequate representation can preclude a non-party, but these are "limited circumstances." Class actions (she apparently isn't looking at class actions as big joinders, but rather as a way to preclude non-parties), suits by trustees/guardians, etc.
4. Montana v United States (pg. 1321) - if someone who wasn't a party takes control over a lawsuit they can be bound by the judgment since you've had your day in court just through a proxy.
5. Litigation by proxy in a second suit
6. Special statutory schemes, like bankruptcy or S 108 of CRA of 1991.

Front 103

Semtek

Back 103

Preclusive effect of fed court judgments is a matter of federal common law--states can't legislate it.

If it's a fed question judgment, it has preclusive effect in all courts and can be used for DNIP and ONIP as described in BT and Parklane.

If it's a diversity decision, fed common law piggybacks on state preclusion doctrines: pretend like it was a decision issued by a state court and apply the preclusive effect that that state court would give it. Exception: when that is incompatible with federal interests.