CIV PRO OUTLINE

1. Personal Jurisdiction
a. In rem= lawsuit against a tangible object; binds the rights of the whole world as
to that property
i. Probate estates= clear ownership or claims against the property
ii. Property must be named in the suit for which the judgment will attach
iii. Admiralty law suits= suit against the vessel
b. Quasi in rem
i. Involves interest of 2 particular persons in a piece of property
(foreclosure) and only adjudicates people in case not the whole world
ii. Attachment jurisdiction= have a piece of property that has nothing to do
w/ lawsuit that the court can use as means of achieving the result of the
lawsuit up to the value of the property when the person is not in the state
nor a resident of that state
iii. Two types
1. 1. Fictional type of personal jurisdiction (such as foreclosure) and
only adjudicates against the people involved
a. Property is the subject of the lawsuit
b. Distinguishable from in rem action b/c it does not involve
the whole world
2. 2. Attachment jurisdiction= Some property is brought into the law
suit but is not an actual part of the law suit, only used to satisfy a
judgment; when person is not in state nor a resident of the state
a. Shaffer case= applies minimum contacts to quasi-in-rem
type 2. Gives broad application of test to all assertions of
personal jurisdiction. Court says existence of ancient form
lacks substantial modern justification. No fear of debtor
removing assets to another state. Full faith and credit
applies. Exercise of this type of quasi-in-rem jurisdiction
rests on a fiction. It is in actuality jurisdiction over
person’s interest. Court reject’s sufficiency of state
interest. Leaves open propriety of jurisdiction when
property itself provides sufficient nexus or contacts. Here
the stock was unrelated to the suit. Insufficient contacts
between D’s and forum
i. Essentially, what Marshall said was that any form of
jurisdiction (in rem or quasi in rem or personal) should be
measured by the minimum contacts test  revolutionary
decision that overruled the quasi in rem portion of
Pennoyer
c. Personal or impersonam= must have this jurisdiction
i. Only binds persons in the suit
ii. Ways to obtain personal jurisdiction
1. Personal jurisdiction can be consented to
2. Presence
3. If you own property= quasi in rem

1
 4. Resident/citizen
5. Tag jurisdiction or transient jurisdiction= getting personal
jurisdiction when someone is in the state for only a minute as long
as that is when they are served
6. Blackmer case= jurisdiction of U.S. extends wherever citizen is in
the world; Blackmer was subject to the subpoena even though he
was in France
7. Long Arm statute
a. Analyze it under due process to provide reasonable notice
and minimum contacts
b. Same analysis under state statute, but the state statute
cannot extend the scope only narrow the due process scope
iii. Substantive due process= personal jurisdiction implicates substantive due
process b/c it provides each of us a liberty interest not to be subject to a
court that has no power over us
1. Procedural
iv. Pennoyer v. Neff= territorial/sovereign theory of personal jurisdiction. In
state service was central to exercise of jurisdiction over nonresident.
Limits exercise of jurisdiction beyond territory of state. Introduces role of
due process in personal jurisdiction concerns. Recognizes availability of
quai-in rem jurisdiction based on presence of property. But Mitchell did
not properly attach property at outset of suit. Illustrates ability to
collaterally attack judgment that is void. Court could have power over the
property you own even if you are not a resident up to the value of the
property.
1. Pennoyer rule= the principle that a court may not issue a personal
judgment against a D over which it has no personal jurisdiction
v. Hess Case= establishes implied consent for personal jurisdiction; driving
the car in the state illustrated the implied consent
vi. International Shoe case= minimum contacts analysis
1. Special appearance= can come to the state to question the
jurisdiction w/o being subject to the jurisdiction; can’t defend on
the merits w/o waiving rights of special appearance
2. ROL: due process requires only to subject a D to personal
jurisdiction holding if he is not present in the forum, he must have
minimum contacts w/the forum according to notions of fair play
and substantial justice
3. Minimum contacts analysis= 1. Systematic and continuous 2.
Resulted in a large volume of interstate business 3. In the course of
which the D benefited from the laws of the state including the right
for the D to resort to the courts for enforcement of these rights
4. Capias ad Respondendum= service by process server is enough
notice since the person might not ever have been in the state but
had minimum contacts
vii. Perkins= only time court has authorized general jurisdiction

2
viii. McGee= even one substantial contact is enough when the cause of action
arises from that contact
ix. Hansen= no relevant contact so no purposeful availment; differs from
McGee in that McGee reached out to the forum state whereas here the
company did not reach out and make a deal in Florida; not followed b/c it
is seen as too harsh
x. Gray= Long Arm Statutes
1. Two prong analysis: 1. Analyze long arm statute 2. Then analyze
the due process clause
2. First you look at the statute to see if the defendant’s actions fall
w/in the statute
3. Then look at the case law to decide if minimum contacts, fairness,
opportunity to be heard are met
xi. Shaffer= applies minimum contacts to quasi-in-rem of both types; here
the stocks were insufficient contacts between D and forum state
xii. Calder= established the effects test
xiii. Kulko= the effects test= action outside the state that had an effect on the
state
1. Only applies to wrongful acts or commercial activity
xiv. Worldwide= mere forseeability will not support jurisdiction; minimum
contacts has two functions: 1. Avoid burden of inconvenient litigation and
2. Limits exercise of sovereign authority of state as co-equals in federal
system;
1. 5 factor test for fairness
a. Burden on the defendant
b. P’s interest
c. Forum interest
d. Interstate interest in efficient resolution
e. Shared interests of the several states
2. Writ of prohibition= refrain lower court from overextending their
jurisdiction
3. Dissent= says it doesn’t necessarily have to be the best forum, just
has to be one w/ minimum contacts where there is not too much of
a burden put on the D
xv. Helicopteros= refused to find general jurisdiction under the facts;
probably could specific jurisdiction b/c the pilot was trained in Texas even
though the crash happened in Peru, but specific jurisdiction was not asked
for
1. Dissent= purposely availed itself in Texas and got benefits of the
forum; doesn’t offend fair play; got benefits of the forum
xvi. Keeton= single publication rule= could be sued anywhere, but only one
time for this incident; D purposefully availed itself of benefits of
distributing publication in forum
1. In personal jurisdiction the traditional calculus is to look at the
relationship of the defendant, the litigation, and the forum state to
determine which contacts are constitutionally significant

3
 2. If plaintiff ever lacks contact in the forum state, cite Keeton v.
Hustler
xvii. Burger King= contract alone is not sufficient to establish jurisdiction;
court looks at prior dealing, terms, performance and other factors
1. Dissent= uneven bargaining power; no real interest in FL; primary
contact was in Michigan; no stream of commerce
xviii. Asahi= need more than mere awareness for purposeful availment; some
indication of intent to serve forum for purposeful availment; used
reasonableness five factor test (Worlwide); just putting the items in the
stream of commerce w/o purposeful availment is not enough
1. Dissent 1= if you knowingly put your goods in the stream of
commerce then at some point you are going to avail yourself of the
state
2. Dissent 2= purposeful direction is an unneeded complication to fair
play
xix. Burnham= limits the scope of Shaffer to quasi in rem; affirms historical
transient jurisdiction
1. Choice of law provision: applies to contracts and the determination
as to which state’s substantive law will be applied to resolve any
legal disputes under the contract
2. Forum selection clause: allows the parties to agree that any
litigation resulting from that contract will be initiated in a specific
forum
xx. Insurance Corp. of Ireland= party can by conduct consent to
jurisdiction; non-compliance w/ discovery (that was being used to decide
if they were w/in jurisdiction) can be deemed to subject D to jurisdiction
xxi. Limited appearance= allows D in quasi in rem suit to appear for
the limited purpose of defending his interest in the attached property w/o
submitting to the full in personam jurisdiction of the court
xxii. Zippo= established the sliding scale to assess exercise of personal
jurisdiction in internet website cases; not a replacement for minimum
contacts; falling out of favor (DO NOT ANALYZE AN INTERNET
FACT PATTER using Zippo as precedent but rather as a reference tool for
the scale)
1. Interactive= transactions executed
2. Active= cannot transact business but can log info.
3. Passive= just an info. site
xxiii. Pebble Beach=
1. 3 prong test for jurisdiction of websites
a. D performed some act or consumated some transaction
w/in the forum or otherwise purposefully avails himself
b. Claim arises out of or results from the D’s forum-related
activities
c. Exercise of jurisdiction is reasonable (5 part test above)
2. Purposeful availment= intent to do something in the state

4
 3. Purposeful direction= effects test (wrongful act or commercial
activity)
d. For internet related jurisdiction still follow International shoe’s minimum contacts
test
e. Derivative action= stockholder stands in shoes of the corporation to bring suit
against officers of the corporation
f. Situs= physical location
g. Rule 12(b)(2)= way to challenge personal jurisdiction
i. Personal jurisdiction can be subject to waiver
ii. If you don’t file rule 12 #’s 2,3,4,5 in the motion to dismiss than it is
considered waived
iii. Rule 12(h)= if you don’t file a motion against personal jurisdiction then
you waive it
iv. Rule 12 eliminates the need for special appearances but not all states have
adopted this rule
h. Limited appearance= happens only w/ quasi in rem; person makes appearance
and actually gets to argue on the merits of the case but your liability is limited to
the value of the property; also obviously questioning the authority of the court
i. Collateral challenge= D who makes no appearance remains free to challenge a
default judgment for want of personal jurisdiction; non discretionary; allowed
when a judgment is void
i. In a "collateral challenge," most commonly filed in the form of a personal
restraint petition, the defendant can raise claims that were not addressed in
a direct appeal. Claims might include allegations that a witness committed
perjury, that the state withheld evidence tending to show that the
defendant was innocent of the crime, or that the defendant had ineffective
assistance of counsel. In a collateral challenge, the burden is on the
petitioner to prove that the actions caused actual and substantial prejudice
to the defendant's case.
ii. A case in which the defendant has prevailed on direct appeal or on a
collateral challenge may be returned to the trial court for further
proceedings. This may include a new sentencing proceeding or an entirely
new trial. A defendant who does not prevail in the state Supreme Court
may ask the U.S. Supreme Court to consider any claims pertaining to the
U.S. Constitution.
j. Vertical challenge= appealing an error in the court
k. 5 writs
i. Habeas corpus
ii. Certiarori
iii. Prohibition
iv. Mandamus
v. Quo Warranto

TEST FOR PERSONAL JURISDICTION

 

5
In order to expose a defendant to liability, a court has to have jurisdiction. A state has personal
jurisdiction over persons in the state because it is sovereign within its borders (Pennoyer v.
Neff). However, citizens are also entitled to substantive due process that provides them liberty
from a forum with which they have no connection. Therefore, when a defendant is absent from
the state, he must be personally served with notice in order for that state to exercise jurisdiction
over that defendant (Pennoyer v. Neff).
 
If a state is trying to assert jurisdiction over an out of state defendant and therefore the traditional
basis for personal jurisdiction do not exist, the court utilizes a two-part analysis. First, the court
looks to see if the state has a long arm statute and defendants actions fall under the statute, and
then the court ensures that exercise over the defendant is constitutional (Gray v. American
Radiator).
 
Once you have concluded the long arm statute allows assertion of due process, the court will
examine whether it violates an individual’s right to due process. There are a variety of different
tests the court uses to determine whether the exercise of jurisdiction would violate due process,
but the court has determined that this is fundamentally an issue of fairness. In International Shoe,
the Court determined that in order to be subject to personal jurisdiction, a defendant must have
such contacts as to not offend the traditional notions of fair play and substantial justice. Even
though the court did not elaborate on the nature or quality of the contacts, they noted that the
contacts were 1) systematic and continuous, 2) resulted in a large volume of interstate business,
in the course of which defendant enjoyed the benefits and protections of the laws of the state,
including the right to resort to the court for the enforcement of those rights (International Shoe).
The Court later refined the requirement to state that but the Court later stated that the unilateral
acts of a third party cannot be said to subject the defendant to jurisdiction (Hanson v. Denckla).
In Hanson, the court articulated a number of factors to assist in deciding whether the forum
should exercise jurisdiction: 1) Burden on defendant, 2) plaintiff’s interest, 3) forum interest, 4)
interest in efficient resolution, 5) several states-shared substantive interest. The other end of the
spectrum is that even if a defendant only has a single contact with the forum state, the defendant
is subject to jurisdiction over a dispute arising from that contact (McGee v. International Life
Insurance).
 
There is some dispute on whether placing products in the stream of commerce constitutes
minimum contacts. In World-Wide Volkswagen, the court determined that an automobile dealer
who only did business in three states, is not subject to personal jurisdiction without purposeful
availment to the benefits of the forum. In Asahi, the court reiterated mere awareness that the
product would meet a distant forum is not enough to subject them to jurisdiction, without
something more such as advertising in the state or establishing customer service departments for
customers in that state. 
 
The court will also give some weight to forum selection clauses, but the clause alone will not be
enough without more, such as in Burger King when there was a long term contract signed due to
the business owners actions, the main decisions rested with the Florida office, and the defendant
cannot show undue hardship.

Summons, Service and Notice, and rule 4

6
Due Process Requirements:
1. Court must have jurisdiction (personal and subject matter)
2. Adequate notice of the commencement
3. Opportunity to be heard

Mullane v. Central Hanover Bank & Trust Co.

- Holding: notice required by the N.Y. Banking Law, requiring the trust co. to notify
each person entitled to share in the income by mail, is incompatible with the
requirements of the 14th Amendment; judgment for P
- Court doesn’t lay down a fixed rule for notice
- Due Process is satisfied if notice would reasonably reach the appropriate parties

Service of Process- gives notice that one could be subject to liability:

1. Summons
2. Complaint

Green v. Lindsey
- Notice was posted on the door of an apartment building
- Holding: posting was not reasonable notice b/c they could be torn down

Maryland State Fireman’s Association v. Chavez

- Rule 4(d) Waiving Service
- MSFA sent the complaint and summons to Chavez by first class mail and not certified
mail, as required by Rule 4(d)
- Holding: MFSA’s motion for judgment by default denied for insufficient service

National Equipment Rental, Ltd. v. Szukhent

- Rule 4(e)(2)(C) Delivery to an Agent Authorized by Appointment
- Issue of whether the person upon whom the complaint and summons were served was
an authorized agent
- Service of process is a federal matter; apply federal law
- Holding: prompt notice was given through the agent who was authorized through a K
as permitted under Rule 4

FRCP 4(d)
(d) Waiving Service.
(1) Requesting a Waiver.
An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has
a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a
defendant that an action has been commenced and request that the defendant waive service of a
summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent,
or any other agent authorized by appointment or by law to
receive service of process;

7
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means
for returning the form;
(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and
not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30 days after the request was sent - or at least
60 days if sent to the defendant outside any judicial district of the United States - to return the
waiver; and
(G) be sent by first-class mail or other reliable means.
(2) Failure to Waive.
If a defendant located within the United States fails, without good cause, to sign and return a
waiver requested by a plaintiff located within the United States, the court must impose on the
defendant:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those
service expenses.
(3) Time to Answer After a Waiver.
A defendant who, before being served with process, timely returns a waiver need not serve an
answer to the complaint until 60 days after the request was sent - or until 90 days after it was sent
to the defendant outside any judicial district of the United States.
(4) Results of Filing a Waiver.
When the plaintiff files a waiver, proof of service is not required and these rules apply as if a
summons and complaint had been served at the time of filing the waiver.
(5) Jurisdiction and Venue Not Waived.
Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

FRCP 4(e)
(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual - other than a minor, an incompetent
person, or a person whose waiver has been filed - may be served in a judicial district of the
United States by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service
of process.

Rule 4(k)(1)(B) is the Bulge rule

Rule 4(k)
(k) Territorial Limits of Effective Service.
(1) In General.

8
Serving a summons or filing a waiver of service establishes personal jurisdiction over a
defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the
district court is located;
(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the
United States and not more than 100 miles from where the summons was issued; or
(C) when authorized by a federal statute.  Interpleader statute
(2) Federal Claim Outside State-Court Jurisdiction.
For a claim that arises under federal law, serving a summons or filing a waiver of service
establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws.

If a lawsuit is brought by/against a minor or someone who is not mentally competent, service is
effected under FRCP 4(g)
(g) Serving a Minor or an Incompetent Person.
A minor or an incompetent person in a judicial district of the United States must be served by
following state law for serving a summons or like process on
such a defendant in an action brought in the courts of general jurisdiction of the state where
service is made. A minor or an incompetent person who is not
within any judicial district of the United States must be served in the manner prescribed by Rule
4(f)(2)(A), (f)(2)(B), or (f)(3).

FRCP 4(e)
(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual - other than a minor, an incompetent
person, or a person whose waiver has been filed - may be served in a judicial district of the
United States by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service
of process.

Under 4(e)(1), you can carry service in a manner where the federal district court sits or where
you can effect service. If the defendant travels all over the country, then you will follow the
service of process statute for wherever that person is located.
If the suit is in New York but you find the guy in Missouri, then you would follow the
service process for Missouri
This rule can also reference 4(h)

Service on an attorney is only proper if you can show that the attorney was an agent for the
purpose of service of process

9
FRCP 4(h)
(h) Serving a Corporation, Partnership, or Association.
Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or
foreign corporation, or a partnership or other unincorporated association that is subject to suit
under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive service of
process and — if the agent is one authorized by statute and the statute so requires — by also
mailing a copy of each to the defendant; or
(2) at a place not within any judicial district of the United States, in any manner prescribed by
Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

When dealing with a receptionist circumstance or some mid-level instance, need to determine if
the person is so integrated in an organization that they would know what to do with the papers

Notice alone without compliance is not going to cut it

Generally speaking, the courts are not there yet regarding email service

Courts have authorized email service in some circumstances but you must really show
that there was sufficient evidence that attempts were made to locate and serve the
defendant but that the defendant was playing hide and seek

Usually used as a method of last resort in a very narrow category of cases but this
might change as technology becomes more advanced

FRCP 64

Seizing a Person or Property

(a) Remedies Under State Law — In General.

At the commencement of and throughout an action, every remedy is available that, under
the law of the state where the court is located, provides for seizing a person or property to
secure satisfaction of the potential judgment. But a federal statute governs to the extent it
applies.

(b) Specific Kinds of Remedies.

10
The remedies available under this rule include the following — however designated and
regardless of whether state procedure requires an independent action:

 arrest;
 attachment;
 garnishment;
 replevin;
 sequestration; and
 other corresponding or equivalent remedies.

Return of Service
- After the process server has delivered the papers, she must file a return, which should
disclose enough facts to demonstrate that D actually has been served and given notice
that he is required to appear in court.

Immunity from Process

- Ex. Witnesses, parties, and attorneys who come to a state to participate in a lawsuit
often are granted immunity from service of process in other suits
- Usually justified as promoting the administration of justice

Fuentes v. Shevin
- Leading case involving the opportunity to be heard
- Fuentes defaulted in payment for a stereo and stove and the items were seized by the
sheriff under a writ of replevin
- The officer who seized the property was required to hold it for three days, during
which time the debtor could recover it by posting bond for double its value
- Fuentes was provided no prior notice to the goods being taken and allowed no
opportunity to challenge the writ
- Holding: state statutes that fail to provide for a hearing before a creditor can take back
goods through a writ of replevin from a defaulting debtor is unconstitutional; Due
Process requires opportunity for hearing before deprivation of property can take place

Pre-judgment Remedies:
1. Preliminary injunctions
2. Pre-action attachments
3. Temporary restraining order

Goldberg v. Kelly (welfare)

- Most impt. Supreme Court case; application of Due Process: notice and opportunity
to be heard
- Extension of Reich’s new property
- Concept of due process is very flexible – judged by P’s interests
- Holding: recipient of gov-funded public assistance is entitled under the Due Process
Clause to the opportunity for an evidentiary hearing prior to termination of benefits

11
Connecticut v. Doehr (modifies the Mathews test for private matters)
- Conn. statute permitted attachment of property without notice to the property owner
or a pre-attachment hearing so long as the P provided an affidavit that there was
probable cause to sustain his claim, among other requirements
- Court applied a balancing test and modified the Matthews Test:
1. The private interest that will be affected by the pre-judgment attachment
2. The risk of erroneous deprivation through the procedure under attack and the
probable value of additional or alternative safeguards
3. The interest of the party seeking the pre-judgment remedy, giving due regard
to burdens on the gov in providing the additional procedure
- Due Process doesn’t only apply to full possession, also protects temporary
deprivations

Rule 4: Summons
(a)(1)Contents: name of the court and parties, directed to the D, name and address of P or P’s
attorney, time within which D must appear, notify D that failure to appear will result in
default judgment, signed by the clerk, and bear the seal of the court

(b) Issuance: clerk must sign, seal and issue it to P for service upon each D

(c) Service:
(1) summons must be served with a copy of the complaint
(2) by any person at least 18 years old and not a party to the lawsuit
(3) most common form of service = U.S. Marshall service

(d) Waiver
- individual, partnership or corp. has a duty to avoid unnecessary costs
- if D accepts, he gets 60 days instead of 20 days to respond
- must be in writing and sent to an authorized agent by certified mail or hand delivered
- must contain the date the waiver was sent out

(e) Serving an Individual within the U.S.

- may be hand delivered to the individual personally or left at that person’s home or usual
place of abode with someone of suitable age and discretion or by appointment of an
agent
- actual notice is not sufficient (including e-mail)

(f) Serving an Individual in a Foreign Country

- may use a waiver under 4(d)
- by internationally agreed means or by means prescribed by the foreign country’s law

(g) Serving a Minor or Incompetent Person

- same as serving a foreign individual in not within the U.S.
- must be served by following state law in within the U.S.

(h) Serving a Corporation, Partnership or Association

12
 - within the U.S.: same as serving an individual or hand delivering and mailing a copy
to corp. headquarters’ authorized agent
- outside the U.S.: same as a foreign individual

(i) Serving the U.S. and its Agencies, Corporation, Officers or Employees
- must be delivered to the U.S. attorney in the district the action is brought or a
designated clerical employee or to the Attorney General of the U.S. and to the
individual employee being sued and must be sent by registered or certified mail

(j) Serving a Foreign, State or Local Government

(1) Foreign state: in accordance with 28 U.S.C. 1608
(2) State or Local Gov.: to its chief executive officer or as prescribed by that state’s law

(k) Territorial Limits of Effective Service

- to parties subject to the jurisdiction of the court or who are joined to the lawsuit
- Interpleader Statute: permits nation-wide service
- Bowles Rule: 100 miles from place where summons is filed
- use interpleader when there is federal law being applied, and use Bowles when it is
state law that is being applied (Erie, etc…)

(l) Proving Service

- Affidavit required unless service is waived or service is by a U.S. marshal or deputy

(m) Time Limit for Service

- must serve D within 120 days, unless you can show good cause, or else case can be
dismissed without prejudice

(n) Asserting Jurisdiction over Property or Assets:

(1) Federal Law: notice to claimants must be given
(2) State Law: jurisdiction over one’s assets can be found in a district even if that
district doesn’t have personal jurisdiction over that individual

TEST FOR SUBJECT-MATTER JURISDICTION: DIVERSITY

 
Pursuant to §1332, a federal court can hear state claims brought by citizens of states against
citizens from different states for an amount greater than $75,000. This statute has been
interpreted by the court to require complete diversity, i.e. every defendant must be diverse from
every plaintiff.
 
In order to be a citizen of a state, a person must be physically present and have the intent to
remain there. (Mas. v. Perry)

Strawbridge v. Curtiss
2L.Ed. 435 (1806)
F: P, a resident of Massachusetts, brought action against D, a resident of Vermont, and other
Ds, residents of Massachusetts. Action brought in Federal Court based on diversity of

13
 citizenship. "Some of the complainants were alleged to be citizens of the state of
Massachusetts. The defendants were also stated to be citizens of the same state, excepting
Curtiss, who was averred to be a citizen of the state of Vermont, and upon whom the
subpoena was served in that state."
I: Does federal court have subject matter jurisdiction when one defendant is from different
state but other defendants from the same state as P?
R: The words of the act of congress are, where an alien is a party; or the suit is between a
citizen of a state where the suit is brought, and a citizen of another state.

The amount in controversy can be satisfied so long as the plaintiff makes a good faith estimate
that the value of the claims, including actual and punitive damages and the value of injunctive
relief, meets the required amount. Punitive damages may be included so long as they are
available for that type of action (A F A Tours v. Whitchurch).
 
A plaintiff can aggregate the amount of all claims against one defendant.
 
TEST FOR SUBJECT-MATTER JURISDICTION: FEDERAL QUESTION
 
Determining whether there is federal question jurisdiction is very fact dependent, so there is not
one uniform test. The creation test is usually useful for the majority of cases. Call upon
knowledge/understanding of various formulations the court has used to determine whether there
federal jurisdiction.
 
American Wellworks: Creation test. If a cause of action was created by a federal statute, then
the cause of action presents a federal question giving rise to subject matter jurisdiction.
 
Mottley: Well-pleaded complaint rule. The basis for federal subject matter jurisdiction must be
present in the plaintiff’s original complaint, and not the result of an anticipated defense.
 
Kansas City Title & Trust: Imbedded question test is satisfied if state law allows a plaintiff to
sue but the right to relief depends upon the application or construction of the Constitution or a
law of the United States.
 
Soshone: When a federal law creates the cause of action but local law determines the outcome,
there is no federal question jurisdiction.
 
Merrell Dow: When there is a state cause of action which relies on a federal statute as an
element for its claim but does not rely on the statute for a remedy, then there is not a federal
question.
Holding= FDCA was an element to the case b/c the case was for negligence, but wasn’t a
substantial enough factor to bring in front of federal court; to prove negligence they used the
FDCA standard, but didn’t bring suit for violation of the FDCA
Dissent= b/c there was a federal statute then the federal courts should be the ones to
interpret it
 

14
Grable: 1) Does the state claim necessarily raise federal issues? 2) Is that federal issue actually in
dispute? 3) Is that federal question substantial? 4) May the federal court hear this case without
disrupting the balance of federal and state judicial responsibilities?
 
Organize with bullet points federal jurisdiction under article III or 1331 by Congress. Federal
courts are limited jurisdiction. Under 1331, dispositive question is does this arise under laws,
treaties, or Constitution?
1. Does it arise under the laws of the U.S.
2. Ingredient test (broadest expression of federal jurisdiction, reflects fact nation
was young and court was concerned about primacy of federal law and central
government)
3. Courts utilize a number of different analysis: creation test (wellworks) resolves
most issues, it is better at inclusion than exclusion.
4. Instance of state created cause of action with imbedded federal question from
Smith v. Kansas City (must be substantial, involve interpretation or application of
federal law)
Smith v. Kansas City Title & Trust Co.
255 U.S. 180 (1921)
F: Where Smith alleged that bank had violated state law allowing it to invest
only in legal securities (and the supposed illegal securities were bonds issued
by a federal agency, under federal law that Smith claimed was
unconstitutional).
I: Whether a Missouri law to enjoin the investment in securities where the
issuance of unconstitutional.
R: If there is a state created cause of action that has an embedded federal issue
that requires a construction or interpretation of a federal law or constitutional
issue and that question is substantial, then federal question jurisdiction will be
held to exist.
C: Federal jurisdiction, b/c federal law is integral part of state law & the
interpretation of federal law was necessary to determine the claim.
Holmes dissented by stating that his American Well Works test should have
been applied.
5. Put Shoshone, as an oddity, federal created cause of action, state law supplied
law of decision (eliscu is good example of run through of various test), or Merrill
Dow, illustrates in case where there is a state created cause of action relying in
some form or manner to provide an element, no federal question if court does not
give rise to federal question.
6. Four prong Grable test.
 
TEST FOR SUPPLEMENTAL JURISDICTION
 
Supplemental jurisdiction is different than original jurisdiction. The policy that underlies
supplemental jurisdiction is efficiency and fairness. It is desirable for a court to entertain an
entire controversy. It is a matter of fairness because a party should be able to obtain complete
relief in one lawsuit, so they do not have to fight a war on two fronts.
 

15
In Gibbs, the court held supplemental jurisdiction was appropriate if the cause of action lacking
jurisdiction arose from a common nucleus of operative fact.
 
1367 gives supplemental jurisdiction to the full limit that the cases and controversies clause
permits (except as provided in sections b and c) if you have alternative theories for the same
cause of action, same act violating two statutes, etc. Subsection b) restricts the use of those
devices by the plaintiff under Rule 14 and is targeted at exclusively diversity jurisdiction.
 
1367 (b) takes away supplemental jurisdiction from only plaintiffs in diversity cases against
parties joinder under Rule 14, 19, 20, and 24.
 
1367 (c) when courts may decline supplemental jurisdiction in these instances. Make known that
Gibbs predated the supplemental jurisdiction statute and there is a debate among the courts as
to whether it is just a codification of Gibbs. 9th circuit ruled in Executive Software that 1367 was
a codification of Gibbs and that the court must conclude that declining jurisdiction best
accommodates the values of economy, convenience, fairness, and comity. The court must
analyze the specific facts of the case at hand and expressly identify why there are exceptional,
compelling reasons for declining jurisdiction.

Federal court has the power, under Article III, to hear pendent case claims
Retained the essential division reflected by the Gibbs case
Has discretion to decline hearing these non-state claims
Can only decline if one of the four factors under Section 1367 (c) are present
1. the claim raises a novel or complex issue of State law,
2. the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
3. the district court has dismissed all claims over which it has original
jurisdiction, or
4. in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
Allowable under Article III because it falls under cases and controversy

1376 (d) is a mechanical tool which allows for tolling of the statute of limitation during the
period a state claim was pending in federal court and for 30 days after it was dismissed.
 
In class action suits, the Supreme Court held in Exxon where the other elements of jurisdiction
are present, that is the elements of complete diversity, and at least one named plaintiff satisfies
the amount in controversy, jurisdiction is permitted under 1367.
 
TEST FOR WHETHER REMOVAL IS PROPER
 
A defendant can remove the case to the federal court in the district in which the case was brought
in state court only if plaintiff could have brought the case to federal court originally.
 
Removal must be sought within thirty days of receipt of notice or when the case becomes
removable, but not later than one year after the case was filed.

16
 
All defendants have to consent, and it is not allowed in a diversity case if any of the defendants
resides in the forum state.

Supplemental Jurisdiction

Supplemental Jurisdiction allows additional claims and parties to be brought into a federal case
without independently satisfying subject matter jurisdictional requirements, once there is a basic
controversy as to which there is subject matter jurisdiction.

BACKGROUND

 Codified in the Judicial Improvements Act of 1990 – 28 U.S.C. § 1367.

 This combines the two previous doctrines:
o Ancillary Jurisdiction – the basic use of ancillary jurisdiction in cases where there
was diversity jurisdiction for at least one claim between one plaintiff and one
defendant, and where additional parties, or additional claims, were sought to be
joined to that ”core” claim.
 Used mostly to give federal courts jurisdiction over certain types of claims
made by parties other than the plaintiff(s) that do not independently meet
the requirements for federal subject matter jurisdiction because of lack of
diversity or failure to meet the minimum amount in controversy.
 Generally not allowed for Plaintiffs – ancillary jurisdiction protected
defendants mostly where there was a compulsory counterclaim that could
be forever lost if not allowed to be asserted.
 Plaintiffs can’t even use ancillary jurisdiction to assert a claim against a
third-party defendant who has been brought into the action by the
defendant’s use of the ancillary doctrine. Owen Equip. v. Kroger.
 Example: P brings a wrongful death diversity action against D, a utility,
for negligently maintaining a power line that electrocutes P’s husband. P is
a resident if Iowa, and D is a Nebraska corporation. D then makes a third-
party claim against X, a contractor, alleging that X caused the accident by
its negligence in operating a crane, and that X must therefore indemnify D
against any judgment that P may obtain against D. X is an Iowa
corporation. P now tries to make a claim against X, arguing that X is liable
directly to P for X’s negligence. Since P and X are citizens of the same
state, P could not use ancillary jurisdiction because this would create a
back door to the statutory requirement for complete diversity by only
filing the action against those defendants who would satisfy that

17
 requirement, and waiting for them to implead the other non-diverse
parties.
 Even the 1990 codification of supplemental jurisdiction maintains the
plaintiff/defendant distinction drawn in Owen. It remains that a diversity
plaintiff may not use the ancillary doctrine against a third party defendant.
o Pendent Jurisdiction – if a federal court had jurisdiction over a federal question
claim between two parties, it could also adjudicate a state-created claim between
those same parties, even though the state claim could not come to federal court by
itself, as long as the two claims were sufficiently related to justify use of the
Pendent Doctrine.
 This was good where parties were citizens of the same state, and therefore
not diverse
 For the Pendent Doctrine to be applied, the facts underlying the federal
claim and those underlying state-law claim must be closely related
 TEST: the state and federal claims must “derive from a common nucleus
of operative facts” and must be so closely related that usually a plaintiff
would be expected to try them all in one judicial proceeding. United Mine
Workers v. Gibbs
 “Pendent Party Jurisdiction” allows a third party to the state law claim
to be brought to defend in federal court, even if that party is not a part of
the federal claim at all.
 However, the Supreme Court in 1989 made it very tough to apply
the Pendent Party Doctrine, allowing it only where Congress had
affirmatively indicated that it wanted to allow such parties to be
added.
 The result was that many state claims were tried independent of the
federal claims so that the other party could be impleaded. But see
below…
 CURRENT LAW: One of the most important results of
“supplemental jurisdiction” was that it reversed the Supreme
Court’s holding in Finley and now allows those third parties to be
brought into federal court.

CURRENT SUPPLEMENTAL JURISDICTION

 28 U.S.C. § 1367 combines pendent and ancillary jurisdiction into supplemental

jurisdiction.
 “In any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case

18
 or controversy under Article III of the Constitution. Such supplemental jurisdiction shall
include claims that involve the joinder or intervention of additional parties.”
o Exceptions: Subsection (b) lists the exceptions (14, 19, 20 and 24), which apply
where the original action is based solely on diversity; subsection (c) gives the trial
court’s right to decline to exercise supplemental jurisdiction.
o But as long as the case or controversy is closely related to the original federal
claim, federal courts are given jurisdiction to add any claim, or party. (if the claim
derives from a common nucleus of facts)
 Federal question cases – (pendent) assuming the state-law claim involves only the same
parties as the federal-law claim, § 1367 will produce the same effect as the pre-1990
pendent jurisdiction doctrine would have produced.
o In one respect, § 1367 is broader than previous pendent jurisdiction – no
affirmative grant of jurisdiction by Congress is required. Section 1367(a)
specifically overruled that requirement set forth in Finley.
 Diversity Exclusions – (ancillary) where the “core” federal subject matter jurisdiction is
based solely on diversity, there are restrictions.
o Section 1367 generally allows claims that would be ancillary to fall within the
Court’s supplemental jurisdiction in diversity-only cases (§ 1332). But…
o Section 1367(b): additional claims by the plaintiff, in diversity-only federal
claims, may not be heard where it would encourage plaintiffs to evade the
jurisdictional requirements of 28 U.S.C. § 1332 (diversity). Those claims that will
not be heard are:
 Claims against third-party defendants: Claims by P against third-party
defendants, pursuant to Rule 14(a), are excluded from supplemental
jurisdiction
 Compulsory Joinder: Claims against or by a party brought to the suit by
joinder, Rule 19(a), are not within the supplemental jurisdiction in a
diversity-only case.
 Rule 20 Joinder of Defendants: Claims by P against parties permissively
joined as defendants do not fall under supplemental jurisdiction in
diversity-only cases.
 Rule 20 allows multiple people to be joined as defendants if there
is asserted against them jointly, severally, or in the alternative, any
right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any
question of law or fact common to all defendants will arise in the
action.
 HOWEVER, Rule 20 co-plaintiffs are not restricted.
 Intervention: claims by prospective plaintiffs who try to intervene under
Rule 24 do not get the benefit of supplemental jurisdiction.

19
 Claims that are still allowed – some diversity-only situations in which supplemental
jurisdiction does apply:
o Rule 13(a) Compulsory Counterclaims
o Rule 13(h) Joinder of additional parties to compulsory counterclaims
o Rule 20 “Permissive joinder” provision for multiple plaintiffs
o Rule 23 Class action based on diversity
 If one or more named plaintiffs meet diversity and amount in controversy
requirements, the unnamed plaintiffs don’t need to meet these
requirements because they fall within the court’s supplemental
jurisdiction.
o Rule 13(g) Cross-claims by one defendant against another
o Rule 14 Impleader of third-party defendants for claims by and against third-party
plaintiffs, and claims by third-party defendants; but not claims by the original
plaintiff against third-party defendants.
 AGGREGATION – In a diversity case, can a plaintiff who did not individually satisfy
the amount in controversy requirement use supplemental jurisdiction to join together
permissively with one or more other plaintiffs who did meet the requirement?? Yes! In
two scenarios:
o The plaintiffs join permissively under Rule 20; and
o The plaintiffs are members of a plaintiff class action under Rule 23.
o HOW IT WORKS: When the well-pleaded complaint contains at least one claim
that satisfies the amount-in-controversy requirement, and there are no other
relevant jurisdictional defects (complete diversity, and a single Article III “case or
controversy”), the district court has original jurisdiction over that claim.
o Also, if the court has original jurisdiction over a single claim in the complaint, it
has original jurisdiction over a civil action within the meaning of § 1367(a),
including other claims in the complaint.
 The Indivisibility Theory held that each claim had to be analyzed independently for
jurisdiction. Supplemental jurisdiction reversed this theory, as just described.
 The Contamination Theory held that if one claim in a complaint failed to meet original
jurisdiction requirements, the entire complaint failed!! This too was rejected, especially
under the “amount-in-controversy” reasoning, because that reasoning is used to ensure
that a federal case is sufficiently important to justify a federal court forum; a claim that
falls short of meeting that minimum doesn’t reduce the importance of the claims that do
meet it. This theory has more merit in diversity-only cases.

 Rejection of Supplemental Jurisdiction – just because a claim is within a court’s

supplemental jurisdiction doesn’t mean the court must hear that claim.

20
 o Section 1367(c) gives four reasons a court “may decline to exercise supplemental
jurisdiction”:
 The claim raises a novel or complex issue of State law;
 The claim substantially predominates over the claim(s) over which the
district court has original jurisdiction; or
 (probably the most important) The district court has dismissed all claims
over which it had original jurisdiction
 However, the later in the suit the court dismisses the original
claim, the less likely they court is to decline to hear the
supplemental claim.
 In exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
o For a court to throw out a supplemental claim, it must fall under one of the four
reasons listed in § 1367(c).
o How the “exceptional circumstances” catch-all works:
 Even if the court uses this reason to decline supplemental claims, the
reason must be carefully justified
 Supplemental jurisdiction doesn’t eliminate the requirement of jurisdiction over the
parties, nor does it eliminate the requirements of service of process. It is only a question
of subject matter jurisdiction.
 Venue does not have to be addressed in supplemental claims

Federal Question Jurisdiction

The grant of original jurisdiction over federal question cases is given in 28 U.S.C. § 1331:
“Jurisdiction extends to all civil actions arising under the Constitution, laws, or treaties of the
United States.” This is similar to Article III § 2 of the Constitution, but Art. III also applies to
appellate jurisdiction.

 Arising under the Constitution basically means the suit must be on a substantial claim
founded directly upon federal law. The Supreme Court’s test is:
o In order for a federal question to exist, it must be the case either that federal law
creates the cause of action or that the plaintiff’s right to relief necessarily depends
on resolution of a substantial question of federal law.
 Federal Claim – in federal question cases, federal law will be the source of the cause of
action. If the plaintiff’s cause of action is one arising from federal law, the case falls
within federal question jurisdiction.

21
  State-created Claim – where a claim is created by a state law but requires the
interpretations of a federal law for adjudication, the claim is not within federal question
jurisdiction. (determined by Merrell, can talk about Kansas City)
 The Federal Question MUST be part of the Well-Pleaded Complaint: The federal
question must be integral to the plaintiff’s cause of action, as revealed by the plaintiff’s
complaint. It does not suffice for federal question jurisdiction that the plaintiff anticipates
a defense based on a federal statute, or even that the defendant’s answer does in fact raise
a federal question!
 Even if the merits of the case will result in a 12(b)(6) dismissal, a claim that is based on a
federal law qualifies for federal question jurisdiction. Such a case will result in a
dismissal for failing to state a claim; not for lack of subject matter jurisdiction.
o However, if the “federal claim” is made only to obtain jurisdiction, or is “wholly
insubstantial and frivolous,” the court will dismiss for lack of federal question
jurisdiction.
o If a federal question claim is dismissed where other supplemental claims are
involved, the court may decide to dismiss those also, or to hear them. But if it has
no subject matter jurisdiction over a falsely alleged federal-question claim, it
cannot hear the supplemental claims either.

Subject Matter Jurisdiction

The court’s power to adjudicate the kind of controversy before it.

 Two basic types:

o Diversity
 Amount in controversy exceeds $75,000 (not required for federal
question)
 Complete diversity required. No plaintiff is a citizen of the same state as
any defendant.
 A corporation is deemed to be a citizen of any state where it is
incorporated and of the state where it has its principal place of business.
o Federal Question
 A federal question suit is one arising under the constitution, laws, or
treaties of the U.S.
 Usually, federal law is the source of the plaintiff’s claim
 Supplemental Jurisdiction
o Under the doctrine of supplemental jurisdictional, if a basic controversy satisfies
federal subject matter jurisdictional requirements, additional claims and
additional parties may be brought into the litigation, whether the basic claim is
based on federal question or diversity.
 Removal Jurisdiction

22
 o Under the doctrine of removal, any action brought in state court which the
plaintiff could have brought in federal court may be transferred (“removed”) by
the defendant to federal district court. In diversity cases, the action may be
removed only if no defendant is a citizen of the state in which the action is
pending.
o Even if it a faulty state claim, you can still remove it to federal court to be heard
o Cannot remove if you have local D in a diversity matter, but if it is a federal
question matter then you can
o If you have multiple D’s then all must agree, the exception is the John Doe D
o D cannot remove based solely on his defense that is rooted in federal law
o 1441(c)
 Allows the removal of supplemental or independent claims in a federal
question case (only applies to federal question, not to diversity)
 It can even happen if they are factually unrelated
o You 30 days to file removal from the receipt of complaint
 Runs from the time the first D is served (general rule, but is basically a
jurisdictional matter)
 If the initial complaint doesn’t have a basis for removal, then the time
starts from when that issue comes up
 1 year basis to remove if it based solely on diversity
o Notice has to show a short plain statement
o Subject to rule 11 sanctions
o Removal is affective upon notification in state court
o Forum selection clauses can result in a waiver of removal; consent is not a waiver
 Probably locks in all D’s in the case
o 30 days to challenge for irregularities
o If it is remanded it goes back to the state court it started in
o Untimely action can be a waiver
o Fraudulently joined D= D is added to try and destroy removal; D’s can remove if
there is no reasonable chance that the D could be found liable
o Once the case is removed based on diversity, the P can join a party destroying
diversity and the court has discretion on whether to allow or dismiss D and also
whether to allow or dismiss D
o Artful Pleading= allows the D to remove if the P’s complaint was in state law
language but it was in actuality a federal question
o Complete Preemption= legislated on by Congress and the federal law is so
comprehensive in the subject matter that it is removed to federal court
 1447(d)

23
 o Bars appellate review on remand orders based on the lack of subject matter
jurisdiction except for civil rights violations
 Orders of remand that are reviewable
 A motion to remand that is untimely is reviewable
 Abstentation doctrine= when the federal court could have taken it
and decided not to
 Civil rights violations

GENERAL PRINCIPLES

 Subject Matter Jurisdiction is the power to adjudicate a certain kind of controversy.

 Subject Matter Jurisdiction cannot be consented to the way jurisdiction over the parties
can.
 Kinds of subject matter jurisdiction, besides diversity and federal question:
o Admiralty cases
o Cases where the United States is a party
o Cases involving ambassadors, etc.
 At any time in a suit, if a deficiency in subject matter jurisdiction is noticed, the suit must
be stopped and dismissed for lack of jurisdiction.
 Rule 12(h)(3) allows a party to object to a court’s subject matter jurisdiction.
 Even on appeal a case can be dismissed for lack of subject matter jurisdiction.
 Federal subject matter jurisdiction is not a waivable defect. Jurisdiction over the parties
can be waived, but subject matter jurisdiction can never be waived.

Diversity Jurisdiction

Article III § 2 and 28 U.S.C. § 1332 state the same language regarding diversity jurisdiction.

Diversity prevents local prejudice against an out-of-state defendant.

VENUE – controlled by Fed R. Civ. Pro.

1391(a)= based solely on diversity

1391(b)= based on federal questions
Locality where suit heard, motion filed (not choice of law)
Turns on D’s residence, or where most occurred
Key is convenience for litigants, witnesses
Protects D from P filing suit and selecting venue hostile to D
Fairness just as much as issue as convenience, then
1391 a and b outline rules
If special statute exists, then it controls over general rules

Not jurisdictional, in that does not have to do with binding power, remedy, court’s power

24
 Always already presumed
Comes into play after personal/subject jurisdiction already figured out
Determined district to district

Doesn’t implicate constitutional concerns

Waivable, like personal jurisdiction

Generally done in favor of D
Objection to venue treated as affirmative defense – generally of greater concern to D

Forum selection clauses – once disfavored, now presumed valid

Can actually select an improper venue
Freedom of K

1391(a) – diversity based; 3 ways to site

Where D resides, if all D in same state
District where substantial part of events/omissions occurred
District where any D subject to personal jurisdiction, if all else fails

1391(b) – not solely based on diversity; 3 ways to site

First two factors are same; third factor is any district where D can be FOUND (basically
apply the minimum contacts test)

Diversity cases are precedent for venue matters, in that tied to residence/domicile of D

May need to bring separate suits to get to all defendants

1391(c) – corp residence defined by personal jurisdiction at time lawsuit filed

District with most contacts, if no particular jurisdiction found, gets venue; corporation is
subject to venue of any district in which is satisfies the minimum contacts test

1391(d) – aliens treated differently

Can be sued in any district where court has jurisdiction; residence ipso facto not issue

Reasor-Hill Corp. – MO farmers suing AR corp; can AR hear case on damages to property in
another state?

local action rule: still majority rule, though rejected in Arkansas in instant case; subject to
venue, so cannot be jurisdictional; roots in common law; rooted in property CoA – needs to be
where action occurred; generally used for title actions

Hoffman v. Blaski
Can you transfer case to venue in which P did not have right to bring?
Just because D consent, still doesn’t make it proper
Would prevent D from defeating P’s privilege of selecting venue
Still good law, though very P-centric

25
 Absent Hoffman, courts would allow D to select venue

TRANSFER STATUTES

1404(a) and 1406 – analysis depends on if filed in right or wrong district

1404(a) – where filed in proper district

Should enhance Convenience of parties/witnesses, interests of justice
Can transfer to any other district court where might have been brought
Must also meet personal/subject matter jurisdiction test

1406 – when filed improperly, dismissed without prejudice

Within discretionary power of court to transfer instead

28 USC 1631 – transfer to cure want of jurisdiction

More limited, only in Fed court
When lacks subject matter jurisdiction, permits transfer to proper court
Applies when transferee deemed to have exclusive fed jurisdiction
Eg, fed claims court

Party moving has burden

Practical minded: P’s ease, witnesses, proof/evidence, enforceability of judgment,
obstacles beyond procedure, docket stress
Can depend on disputed facts, which can delay decisions
Will often have evidence hearings to determine venue

Waiving defense of venue doesn’t mean cannot raise later

No time frame

Once transferred, court loses authority/jurisdiction

Designed to limit P from forum shopping

Manipulation still occurs, in that under 1404(a), transferee must still apply transferor law
– both substantive and choice of law

In Fed question case, such a decision happens automatically, as each district applies own Fed
interpretation and works to protect jurisdictional bounds

As procedural rule, transfer orders not final – only interlocutory

Don’t have to wait to appeal under either statute

FORUM NON CONVIENENCE

Stems from common law

26
 Limited to fed courts now
Really only applies in instances when only other option is foreign court
Outcome, when found, is dismissal
Codified in part in 1404(a)
Also applies when dealing with 2 separate judicial systems
Mitigates harsh common law result, in that allows transfer when found
Even if dismissed, courts will condition it on D’s waiver

When invoking, party needs to show amenability

Docket, relation of court to issue, avoiding law conflict, witness/evidence burden,
expenses
General bias isn’t enough – need to be specific

Piper Aircraft v. Reyno

When foreign party raising forum non convenience, their choice of law gets less
deference
Illustrates where jurisdiction/venue proper but court still able to decline
Another forum would be more appropriate
Procedural injustice not enough
Outcome is dismissal, not transfer

Erie Doctrine:  
Is there a federal rule of civil procedure or some other federal directive on point or that
covers this issue? If yes, apply federal law as long as it is valid. This is not an Erie
problem at all (Hanna v. Plumer). This is because of the Supremacy Clause. In
Hannah, FRCP 4 allowed substituted service of process, but state law did not. The
Supreme Court said Rule 4 governs and is valid. (Note: FRCPs are valid if arguably
procedural and they have never been held unconstitutional) 

Assume that we do not have a federal directive on point…

A federal judge in a diversity case faces a particular issue. The question is does the
federal judge have to apply state law to decide that issue. Erie Railroad v. Tompkins
states state law must apply if it is a substantive issue. This result is compelled by 1) the
Rules of Decision Act in Section 1652, which says you have to apply state law unless
there is some federal law on point 2) Constitution compels court to apply state law,
even though court did not state which part, general assumption is that it is the Tenth
Amendment. 
How do we tell if it is substantive?  
When you are defining when someone is liable, i.e. the elements of a claim or defense,
there is no question that it is a state law.
The Supreme Court has given a variety of phrases over the years, but has not stated
how to apply them together. 

    1. Outcome Determinative: In Guaranty Trust v. York, plaintiff’s claim was barred
by state statute of limitations. The Supreme Court said the federal judge in diversity
must follow state law regardless of whether it is law or equity because it was outcome

27
 determinative. If state law applies, the case is dismissed. The opposite outcome occurs
if the doctrine of laches was applied. Therefore, the statute of limitations was
substantive and state law must apply.  Judge made doctrine of laches modifies the
cutoff date in federal cases; more flexible w/ statute of limitations

   2. Balance the Interests: In Byrd v. Blue Ridge, there was a question that under state
law would be decided by a judge and not a jury. The Court said this state law is not
clearly substantive, so the state law should be applied unless there is a good reason not
to, like a federal interest in running its own judicial system. Federal courts have an
interest in allocating authority between judge and jury. The Court said the state had no
reason for the rule, but the federal courts favor jury system and that interest outweighed
the state interest.   Three prong test 1.) is the inconsistent state rule bound up w/ state
created substantive rights and obligations in dispute in the lawsuit or is the inconsistent
rule related to mode or manner of enforcements of those rights? 2.) would application
of state law frustrate or disrupt one or more federal policies? 3.) whether the threatened
or burdened federal policies outweigh the risk of affecting the outcome? Are the
policies so important that they outweigh the risk that the outcome may be different in
federal than state court?

   3. Twin Aims of Erie: As stated as Hanna v. Plumer in dicta, twin aims are to avoid
forum shopping and the inequitable administration of the law. If the federal judge
ignores the state law, will cause people to flock to federal court? If so, that would be
unfair because only out of state plaintiffs can have access because of the diversity
requirement and it would lead to inequitable administration of the law. A federal court
will have to apply a federal rule of civil procedure when: 1.) the scope of the rule is
sufficiently broad to cover the issue at hand 2.) the federal rule has to be constitutional
and w/in the power of the Supreme Court to promulgate (Supreme court has never
found a rule unconstitutional). Hanna was trying to decide between using state service
rules or federal service rules and it decided to use federal b/c they were in federal court
and no one would come to federal court just for the lenient service rules.

4. Stewart case: A forum selection will never trump rule 1404(a) of the rules of
civil procedure
1404(a)= change of venue rule for the convenience of the parties, in the interest of
justice, the district court can transfer any civil action to any other district or division
where it might have been brought

5. Klaxon case: federal court will use the choice of law statute from the state
that it is sitting in to decide what state law to use

 Pleadings, motions, complaints, and the drafting thereof

Fed Rules Civ Pro – shift from code pleading (common law origin) to notice pleading
Goal of efficiency, flexibility, simplicity
Designed to develop factual outlines of case
Want cases decided on merits, not pleading technicality
Movement in last 8 years to tighten pleading standards

28
 But no move towards amending Rule 8, even post-Twombly

Rule 7= types of pleadings

Complaint, answer to complaint, answer to counterclaim designated as counterclaim,
answer to a cross claim, a third-party complaint, an answer to a 3rd party complaint, and if the
court orders one, a reply to an answer

Rule 8 (a) – general description of content of pleading

Subject jurisdiction
Short and plain statement of claim (doesn’t have to be enough to win the case just enough
to keep it in court) (may have changed post-Twombly= asked for more than just the bare
bones facts)
Decided on case/case basis
Demand for judgment/relief
Want to create a complaint that can survive MSJ and MTD
Want to get to discovery
Pleadings can render inconsistent claims/remedies – discovery remedies this

8(b) – defenses/admissions/denials
(1)(A)= party must state in short plain terms its defenses to each claim
(1)(B)= admit or deny the allegations asserted against it
(6)= usually if you don’t deny it, then it is deemed admitted, except for damages

8(c) – affirmative defenses; not denying the allegation but just saying they can’t be liable for the
offense
If you don’t raise or an affirmative in your answer then it is deemed waived; except for
amendment process

8(d)(2) – Alternative statements of a claim or a defense= a party may set out two or more
statement of a claim or defense alternatively or hypothetically,; if a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient

Rule 9 – specifics of what needs greater particularity; this rule calls for more detail then is used
in rule 8 b/c of the particularity of the request and denials
9(g) – Heightened pleading at odds with notice in Rule 8
Applies to special damages, like K damages, consequential damages
Fraud, for instance, has to be pled with particularity

Rule 10 – forms of pleading

(a)= every pleading must have a caption
(b)= party must state claims or defenses in numbered paragraphs
(c)= a copy of a written instrument that is an exhibit to a pleading is a part of the pleading
for all purposes

29
Leatherman v Tarant County Narcos
Cannot apply more stringent pleadings in civil rights violations against cities
Potentially changed post-Twombly

Burden of pleading v. the Burden of Production (burden of production is higher b/c the P
sets forth enough evidence to hold up in court)

Swierkiewicz v Sorena
Age discrimination case where the court found that a complaint for employment
discrimination does not have to reach the level of a prima facie case; D just needs to be
on notice of what is being alleged
Court found that pleading standard not evidentiary standard
Illustrates traditional rules of Civ Rules – heightened reqs conflict with Rule 8

Conley v. Gibson
Claim cannot be dismissed with prejudice unless no set of circumstances can produce
CoA
Should not dismiss unless cannot prove claim at all
Illustrates liberal view of pleading, rule 8
Precedent which was overturned by Twombly

Bell Atlantic v. Twombly

Class action suit brought under Sherman Anti-Trust Act, which complicates decision and
scope of holding – unsure about future application
Uncertainty about how to satisfy new reqs and conformity with Rule 8
Need to show factual context – ‘plus factors’ – which forces P to prove much more than
is necessary under Rule 8
Merely alleging illegal conduct not sufficient – need to actually show conduct
Effectively burdens P; difficulty of proving case prior to discovery
Some sense that court concerned with burdening corporate defendants

Erickson v. Pardust
Court held that only need short, plain statement of facts for Rule 8 pleading
Decided immediately after Twombly
Indicates difficulty of Twombly, limited circumstances in which it (perhaps) applies

Garcia v. Hilton
Courts construe in favor of P; don’t have allege every essential element to a cause of
action

Rule 12 – Defenses and Objections

RULE 12 (a)(1)(A)(i) – D has 20 days to serve an answer to complaint

UNLESS otherwise stipulated by Federal Statute

30
RULE 12 (a)(1)(A)(ii) – If service has been timely waived under Rule 4(d),

IN US: D has 60 days after request for waiver was sent.

OUTSIDE US: D has 90 days after request for waiver was sent.

RULE 12(b) – How to Present Defenses

THESE ALL MUST BE DONE BY MOTIONS

Rule 12(b)(6) – Failure to state a claim upon which relief can be granted; usually dismissed w/o
prejudice

- American Nurses’ Ass’n v. Illinois – Nurses sued for pay discrimination based on
sex. Ct originally gave motion to dismiss. Then ct of app. Said no b/c enough facts
were given that a fact finder could find for P, BUT pleader can plead themselves right
out of ct. Nurses almost did by adding males that were in the nursing field.

RULE 12(c) Motion for J on Pleadings

- Party can move for J on pleadings

o After pleadings are closed
o BUT early enough not to delay trial
o Only use facts from the complaint

RULE 12 (d) When present matters outside of the Complaint

- If bring 12(c) motion or 12(b)(6) motion BUT use more than 4 corners of the
complaint, then ct will treat the motion like 56(c) SUMMARY J MOTION.

Rule 12(e)= motion for a more definite statement; disfavored motion

Rule 12 is connected to rule 4 in the context of time

Rule 11 – Signing Pleadings, Motions, and Other Papers

Directed at frivolous pleadings and lawsuits

31
RULE 11 (b) To best of atty’s knowledge, allegations are well founded and have support. Not
being filed for improper reason (i.e. Raise cost, harass, etc)

11(b)(2) – All claims and defenses are well founded in law

- Applies to BOTH P, and D.

11(b)(3) – Facts are supported by evidence OR will be soon enough

- Directed at P

11(b)(4) – Denials are warranted; there is evidence for the denials they are making

- Directed at D

RULE 11 (c) – Sanctions

- 11(c)(2) SAFE HARBOR RULE = Party seeking sanction must give the other side
21 days to correct error
o Hadges v. Yonkers Racing Corp – Jockey and Atty sued for discrimination
and used false evidence. Atty said he didn’t know. Ct said if given the 21
days, the mistake would have been fixed.
- 11(c)(4) Judges have to be reasonable w/ sanctions
o Sanction must be proportionate to the violation.

RULE 11 (d) – These sanctions are not applicable to Discovery violations

Rule 15 amendments
1. Purpose is to provide opportunity for a claim to be decided on the merits rather than
procedural technicalities
a. Limits the role of pleadings to providing parties w/ notice of nature of claim and
occurrence that’s been called into question
2. (a)= Amendments before trial
a. (1)= Amendments as a matter of course may be done once (as a matter of course
amendments)
i. (A)= Before being served w/ responsive pleading OR
ii. (B)= w/in 20 days of serving pleading if response not allowed and action
not on trial calendar (should grant if justice requires)
b. (2)= other amendments= party may amend w/ opposing party’s consent, or courts
permission (leave of the court amendments)
c. (3)= must respond to amended pleading w/in time for original pleading or 10
days, whichever is longer
3. relation back doctrine of amendments (rule 15(c))
a. amendment changes party name (if it’s same occurrence and w/in 120 days)

32
 i. if new party received notice of the action and won’t be prejudiced in
defending
ii. if new party knew or should have known action would be brought against
it
b. relates back to the prior pleading and assumes it was timely
c. when the party tries to add new parties, then the court will apply the state law
when it is more lenient
d. 15(c)(1)(c)= allows you to add a new party after the statute of limitations has
already run
i. Three part test
1. Must arise from the same claim
2. New D who is going to be added has received notice w/in 120 days
of filing of the complaint (rule 4(M)) such that he or she is not
prejudice
3. The D to be added w/in that 120 day period but for a mistake that
she was the proper D (Worthington case w/ the cops where P had
to name John Doe J D’s b/c he didn’t know who they were)
4. rule 15(d)= supplemental pleadings= court may allow party to serve supplemental
pleading alleging a new occurrence that happened after original pleading, even if original
pleading doesn’t state a claim or defense
a. refers to matters that happen subsequent to the complaint; amendments apply to
matter that happen prior to the complaint
b. these aren’t allowed as a matter of right so you need to seek courts consent
5. governs two types of amendments
a. a matter of course= P has a right to amend anytime before the D files their
answer (or their pleading) to the court (20 days to answer but if you amend then
the time starts over)
i. motion to dismiss and motion for summary judgment do not cut off D’s
chance to amend b/c they are not pleadings
ii. generally court does not have the discretion to reject a filing if it is still
w/in the time period of amending
iii. the right to amend only applies to D’s who have not answered when there
are multiple D’s
iv. if there is a requirement in the case management, then most courts will say
that rule 16 applies for amendments instead of rule 15; this elevates the
level of amending to good cause
b. leave of the court (after time period has lapsed)
i. court looks at it to see if it is undue delay, faith, motive, potential
prejudice
ii. the mere passage of time alone will not support a basis to deny an
amendment
iii. still have 10 days to respond
iv. can use rule 61 (harmless error rule) to amend/fix claims
6. if you failed to ask for a jury trial in original pleading, then try and amend and ask for a
jury trial you will not be able to unless you file a new claim that is triable by a jury

33
Joinder:
Joinder requires 3 principal steps. Rule 19: (1) Is the party required for a just adjudication (is
non-party necessary to resolve the lawsuit?). 2) Is joinder feasible? 3) If there is a question about
feasibility? Then the court will ask whether there is equity in good conscience and whether the
lawsuit should proceed without party or dismiss the lawsuit.
Step 1: Look at 19 (a)(1)(a) in trying to determine whether an absent person is required or
necessary. In the absence of joinder, can complete relief be given? Will there be inconsistencies?
This reflects a desire to decide cases in the aggregate and not do piece mail justice. It shows
prejudice that will come about with inconsistent judgments.
Joinder is not feasible if 1) it would destroy diversity, 2) court does not have or cannot
acquire personal jurisdiction over party, or 3) venue would be improper. A corporation in a
derivative action is an indispensable party. To join a defendant permissively, they have to show
they have a right to relief jointly or severally or with respect to a claim, that arises out of the
same transaction or occurrence. (Rule 20). Severance will result in separation action.
Rule 18(a) states that the P can assert any and all claims she has against the defendant that
aren’t related. Once you compile the claims, you have to get them into federal court.

Counterclaims:
Counterclaims are covered in rules 13(a) and 13(b) and are defined as claims against
opposing parties. There are two types of counterclaims: compulsory and permissive. Compulsory
is covered under rule 13(a) and refers to claims arising out of the same transaction or occurrence
as the plaintiff. It must be filed in the answer. Permissive counter claims, arising under rule
13(B) does not arise out of the same transaction or occurrence. It is permissive because you may
assert it here, but don’t have to, as you can sue on it separately. Even if you meet the
requirements of 13(a) or 13(b), you still have to have subject matter jurisdiction.
4 tests to determine whether a counterclaim arises from the same transaction
1.) Are the issues of fact and law raised in the counterclaim largely the same between the
two claims? Similarity test
2.) Would the claim preclusion bar a subsequent suit by D on their counterclaim?
3.) Will largely the same evidence support or refute the P’s and D’s claims?
4.) Is there any logical connection or relationship between counterclaim and main claim?
If a counterclaim arises after they file their answer it is not deemed compulsory it is deemed
permissive.
Compulsory counterclaims are deemed supplemental jurisdiction
Permissive counterclaims do not traditionally fall under supplemental jurisdiction even
though it is now being argued that it should (Jones v. Ford Motor)
Two concepts
Recoupment claims= compulsory
If claim becomes barred by something such as time and the D had a claim for X
amount of dollars, then they can bring a recoupment claim against P for the difference in
what they were owed and what the P is asking for
Just using this claim to reduce potential liability when the claim became barred
If P was to lose then nothing would come from it
Set off= permissive
Deemed not to arise from the same transaction or occurrence and therefore are
deemed permissive

34
 Same thing essentially as recoupment claim

Cross claims:
Under rule 13(g), against a co-party, and it must arise from the same transaction or
occurrence as the underlying case.

Cross claim and counterclaim can survive even if the main suit is dismissed
Joinder rules do not answer jurisdictional issues and the case still needs to evaluate these
jurisdictional issues

Third parties:
Rule 14 applies to cases when a party wants to implead a third party. Under Rule 14, when
the defendant is looking to bring someone in for impleader, that third party claim has to have a
basis for jurisdiction. If third party defendant presents a problem, the suit can still go forward
because that defendant is free to go after them in a separate suit. Under rule 14(a)(3), a plaintiff
can assert a claim against a third party defendant if it occurs from the same transaction or
common occurrence of the underlying case. However, under 1367(b) if the third party defendant
destroys diversity, there will be no more federal court supplemental jurisdiction. D has 10 days
to implead after service of their answer.

Rule 24 refers to intervention, which means that a new third party is coming in to the case on
either the plaintiff or defendant’s side. 24(a)(2) regards intervention of right, which means you
have to show that (1) Absentee interest may be harmed if she is not joined and (2) her interest is
not adequately represented.

Difference between rule 14 and rule 19

Rule 19 throws out the case if a party that is necessary is not in the suit
Rule 14 is used by the D to bring in a 3rd party to alleviate some of the liability

Rule 21= misjoinder

Misjoinder is generally not a ground for dismissal
Distinguished from non-joinder b/c not joining someone who is crucial to the suit,
dismissal is proper

Cases:
Permissive Joinder Under Rule 18:

M.K. v. Tenet: Ps claims can be joined if the D’s acts and omissions pertaining to the
claims are logically related events (Rule 20(a)). 2 part test: (1) A plaintiff asserting a
claim against the defendant may be joined in the action if his or her claim “arises out of
the same transaction, occurrence, or series of transactions or occurrences.” (2) The
claims of all plaintiffs against the defendant must share a common question of law or
fact. Under Rule 18, P can sue for anything that happened but it does not have to be
related to the initial claim. Under Rule 20 the claim must be related.

Additional Claims:

35
United States v. Heyward-Robinson Co.: Ps brought a claim for a subcontract with D,
D counterclaimed, and P counterclaimed back. D disputes the compulsory nature of the
counterclaims. A counterclaim is compulsory if it has some logical relationship to the
opposing party’s claim.

Cross-Claims:

Lasa Per L’Industria Del Marmo Societa Per Azioni v. Alexander: A cross claim is
valid as long as it bears some logical relationship with the transaction or occurrence that
is the subject matter of the original action or counterclaim. The court had ancillary
jurisdictions because the claims all arose out of the same transaction. Rule 42(b) allows
the court to separate claims so jury won’t be confused.

Permissive Joinder Under Fed. R. Civ. P. 20:

Tanbro Fabrics Corp. v. Beaunit Mills, Inc.: P tries to join two Ds in single action for
breach of implied warranty. Separate claims against various parties may be joined if the
claims are logically related; there is no requirement of an identity of duty of contract
before the court will permit the consolidation. This helps P avoid the necessity of
prosecuting to discover who breached which warranty.

Compulsory Joinder of Persons Needed for A Just Adjudication:

Provident Tradesman Bank & Trust Co. v. Patterson: P sued Lumbermen, but did not
join the insured party. When parties to an action fail to raise before or at trial the issue of
failure to join an indispensable party, does the absence of that party does not render the
judgment invalid. Rule 19(a) compels joinder only if the overriding interests in the case
make such feasible. The court determines feasibility under Rule 19(b) by reference to the
p’s interest in the forum, the D’s interest in avoiding multiplicity of suits, the interests of
the parties who could be potentiall joined, and the court’s interest in efficient and
economic judicial administration. The deadman’s rule says that if death seals the lips of
the D, it should also seal the lips of the witness.

Third-Party Practice Under Federal Rule 14:

Jeub v. B/G Foods Inc.: P, who was poisoned, sued D, who impleaded 3rd party, seeking
indemnity. The right to implead is procedural and is therefore governed by federal law in
diversity cases. Since Swift might have been liable to the D for indemnity, the D had the
right to implead Swift (the federal law allowed impleader when there “may be” a right to
indemnity.

Too, Inc. v. Kohl’s Depart Stores, Inc.: P filed action against D for copy right
infringement. D sought contribution and indemnification from two of their employees. A
3rd party may bring a complaint for contribution if the interests of judicial economy
outweigh the risks of prejudice and undue delay. If the court decides the claim would
meet the test, it considers (1) whether the movant deliberately delayed or was derelict in
filing the motion, (2) whether impleading would unduly delay or complicate the trial, (3)
whether impleading would prejudice the 3rd party D, and (4) whether the complaint states

36
 a claim upon which relif can be granteed. A party may not bring a 3rd party complaint for
indemnification if it most likely cannot succeed on such claim. Impleader is appropriate
when the 3rd party D’s liability to the third party P is “dependent on the outcome of the
main claim” or the 3rd party D is “potentially secondarily liable as a contributor to the D.”

Interpleader:
State Farm Fire & Cas. Co. v. Tashire: An insurance company is not required to wait
until persons asserting claims against its insured have reduced those claims to judgment
before seeking to invoke the benefits of interpleader. A district court, through
interpleader jurisdiction, cannot compel all of the tort plaintiffs, even those whose claims
are not against the insured and could not be satisfied out of the insurance proceeds, to
litigate the case in a single forum of the insurance company’s choosing.

Intervention:
Smuck v. Hobson: Intervention is possible when the third parties do not seek to
intervene until after the initial judgment. The D in this case had no separate interest and
could not appeal. Rule 24(a) does not involve the exercise of judicial discretion.

Discovery
l. Purpose is to develop evidence, to develop claims, or to preserve evidence prior to
trial; good tool to help bring about settlement
m. Rule 26= scope of formal discovery; informal would be like google
i. (b)
1. Parties may obtain discovery for any non-privileged matter that is
relevant
a. Relevant info. does not have to be relevant at trial
2. If you can show good cause, the court may allow discovery for any
matter that is relevant to the subject matter of the case
ii. The rule does not define what relevant is
iii. Can discover electronic data, paper documents, physical objects, property
iv. If you are attempting to take down the other side’s case, you can obtain
discovery for impeachment evidence
v. Privileged information is not discoverable under rule 26
vi. A protective order under rule 26 restricts or prohibits a particular
discovery
1. Marrese v. American Academy pg. 774
a. Trial courts have great discretion on scope of discovery
b. Balance interest of party seeking discovery v. prejudice
that would result to party resisting or a 3rd party
c. Illustrates the operation of a protective order
vii. When there is a dispute over sensitivity or cost/ burden to produce, then
court has authority to require discovery to come in stages
viii. (c)= Governs issuance of protective orders

37
 1. Can put terms/conditions on use/scope of discovery
2. When you move for a protective order, you must file a certificate
of a good faith referral
3. Good cause is the standard (not defined in the rules so it is a
discretionary matter that the court will look at)
4. Says it is meant to protect against: annoyance, prejudice, or undo
burden
ix. (d)= Limits the time before which discovery can take place
1. Generally parties cannot have discovery before they have their
discovery conference under rule 26(f)
x. (a)= Ongoing duty to supplement your answer
1. Need to supplement in a seasonable manner; if you find out your
answer was incomplete, you need to supplement accordingly
2. Duty to supplement also applies to expert reports
xi. (f)= Discovery conference
1. Purpose is to have parties to agree on cut off deadlines and other
discovery principles
2. Case management report comes from discovery conference
a. Comes w/ the scheduling order
i. w/in scheduling order court can restrict number of
depositions that can be taken
xii. (g)= Signature and certification requirement for lawyers as well as other
parties
1. Every request, response, objection should be signed
2. If you send discovery that is not signed, the court will strike it
xiii. Motion to compel is asking court to make other side provide info. that they
are refusing to provide
1. Need to put enough information in the privilege block for the court
to determine that the document is/isn’t privileged
a. If you do not provide an adequate privilege block, you
could be deemed as waiving the privilege (this would be a
pretty harsh outcome)
xiv. Self directed requirement to disclose certain information early on in
discovery
xv. (a)(1) (A)= categories of information
1. (i) Identity of witnesses who are believed to have discoverable
information that the disclosing party may use to support its claims
or defenses, unless the use would be solely for impeachment
2. (ii) a copy of all documents, electronic stored info., and tangible
things that the disclosing party has in its possession, custody, or
control and may use to support its claims or defenses, unless used
solely for impeachment
3. (iii) damages and materials used to compute them
4. (iv) insurance
xvi. (a)(1)(C)= time for initial disclosures which says in general initial
discovery must be done at or w/in 14 days

38
 xvii. (a)(2)(c)= Unless otherwise ordered by the court, you are required to
disclose at least 90 days before trial the identity of any expert witnesses
1. If expert is used only for impeachment or rebuttal then it is only a
30 day notice before trial
2. Every expert that is going to testify at trial must have an expert
report
xviii. (a)(2)(B)= what must be in the written witness report
1. (i) complete statement of all opinions the witness will express and
the basis and reasons for them
2. (ii) data or other info considered by the witness in forming them
3. (iii) any exhibits that will be used to summarize or support them
4. (iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years
5. Maybe ok to suggest form of report but may undermine his
expertise if you suggest content
xix. If you fail to comply w/ either of the expert rules you may not be allowed
to put your expert on the stand
xx. Applies to experts who are generally going to be called at trial
xxi. Un-retained expert is not subject to discovery; someone you may call a
few times just to question and not someone used to testify
xxii. Don’t depose until you get the report
n. Rule 37= principle rule for court to issue sanctions for discovery process
i. Evasive is the equivalent of no answer and would be a basis to ask the
court to compel the other side to give a more conclusive answer
ii. You must confer prior to moving to compel or your motion will be denied
iii. Court has discretion not to necessarily award fees and costs even though
the language says it must
iv. Court has a broad discretion w/ fees and cost and can award just a portion
v. Refusal to abide under this rule could be viewed as a contempt
vi. (b)(2)(A)= 7 orders court can award for failure to meet its discovery
obligations
1. Directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims
2. Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence
3. Striking pleadings in whole or in part
4. Staying further proceedings until the order is obeyed
5. Dismissing the action or proceeding in whole or in part
6. Rendering a default judgment against the disobedient party
7. Treating as contempt of court the failure to obey any order except
an order to submit to a physical or mental examination
vii. Court can immediately issue sanctions and doesn’t have to go through the
two step process if they fail to show for deposition, they don’t answer
interrogatories entirely, or…

39
 viii. Cannot defend against a motion to compel simply by saying that the
question is improper; you must object to the question properly as the
answer or you can move for a protective order under 26(c)
ix. Failure to supplement answers to prior discovery request can result in
sanctions
1. Court has option to let jury know of your discovery problem
x. Failure to admit to a fact that should be admitted could be sanctioned if
party later proves that fact
o. Rule 30= oral depositions
i. Do not need permission of the court to take a deposition once discovery is
started
ii. Serve notice of deposition on the other side and do not have to file it in
federal court unless you have a dispute over when it can be taken
iii. Notice must specify method of recordation; normally stenographic or
video
iv. Only parties are subject to depositions under rule 30
v. A non-party can only be brought for a deposition coercively by a rule 45
subpoena
vi. Limits on the issuance of a rule 45 subpoena
1. 45(b)(2)(a-d)
a. Issued anywhere w/in the district from which the court
issues it
b. If outside the district it must be served w/in 100 miles of
the place specified for deposition, hearing, trial
c. Anywhere w/in the state of the issuance of the court if that
state has a statute that allows it to be anywhere w/in the
state
d. Any place that the federal court authorizes through good
cause if there is a federal statute that is allowed
2. 45(c)(3)(A)(ii)=
a. Requires a court to quash or modify a subpoena that
requires a non-party to travel more than 100 miles from
persons home, work, or regularly transacts business
vii. exceptions for when you need permission of the court to depose
1. if person is in prison
2. 10 deposition limit no matter how many parties (ask court for more
then 10; not uncommon for parties to agree to more)
3. Reasonable notice (the 90 day rules)
viii. Allows you to tell people w/in the notice that they are required to appear
and bring certain documents w/ them; must remember that rule 30 allows
30 days to produce the documents
ix. (b)(6)= allows you to name someone other than a live individual in a
notice for deposition
1. Can name a corporation/government/etc. and give notice of the
areas that are to be deposed and the person in charge of that party

40
 is responsible for bringing the parties that know that part of the
corporation
2. The entity is obligated to produce appropriate persons
x. (d)(1)= limited to 7 hours on one day
1. Breaks and lunch not included in this period
xi. Entitled to mover for protective order under rule 26 and suspend the
deposition until it goes through; the rule permits you to ask for this order
in the district in which the deposition is being taken or the court the case is
in
xii. (g)= Party notices the deposition and fails to show up can be sanctioned
1. If someone is subpoena and they show up and the other side
doesn’t, you can be sanctioned
p. Rule 32= use of deposition at trial and what happens at deposition
i. 3 conditions for the use of deposition against a party
1. Party had to be present at deposition or was represented at the
deposition or had reasonable notice of deposition and failed to
show
2. Use of that deposition is admissible consistent w/ the federal rules
of evidence
3. Use of that deposition is otherwise allowed under the provisions
under rule 32
ii. Deposition can be used for substantive evidence or solely for
impeachment purposes
iii. (a)(3)= deposition of the opposing party can be used for any purpose
iv. (a)(4)= witness who is not a party
1. Witness is unavailable generally
2. 1. Dead
3. 2. More than 100 miles away from the trial
a. Cannot use that exception if you are in some ways
responsible for something?
4. 3. Confirmed otherwise sick or incapacitated
5. 4. Can’t locate witness but you have a deposition
6. 5. Exceptional circumstances= must give other side notice that you
are using the exceptional circumstances clause
v. (8)(a)
1. Use of depositions from a prior lawsuit can be used
a. Requirements
i. Procedural proper/lawful
ii. Person against has chance to cross examine
iii. Same subject matter
vi. (d)(3)
1. Addresses the matter of objections
a. Form of the question (confusing, compound question); can
be cured at the deposition and can’t object later at trial

41
 b. If confident in the form of the question then you can just
proceed and not acknowledge them unless they instruct
their client not to answer the question
vii. (d)(1-2)= refer largely to problems w/ the qualifications w/ the officers
1. Court reporter not qualified to take deposition
2. If you don’t raise this in writing, then it is deemed waived
viii. If they ask your client about hearsay, relevancy, etc. those are not waived
and can be objected to at trial
ix. Any procedural defect or question going to the structure of deposition or
question must be objected to at the deposition
x. Wilson case (video deposition)= does not require any extra showing of
notice for it to be a video deposition
q. Rule 33 interrogatories
i. Discovery device that is sent to the other side asking them questions to
uncover factual information or contentions
ii. A good lawyer can avoid having to answer interrogatories
iii. Once you have court permission for discovery you do not need court
permission for interrogatories unless you ask more than 25
iv. Answers basically have to be sworn to
v. Verification required by rule 33(b)(3); answers must be sworn to under
oath
vi. Big area for dispute w/ interrogatories is that a party has to provide
responses or information w/in the control, custody, or possession of that
party or that party’s agent
vii. In the Christy case the court overruled objection b/c the relationship was
legally enough for Christy to have the information in her possession
viii. Can be used at trial
1. The question is, are these answers admissions?
a. Split of authority b/c some courts say they are not b/c they
can be changed, but some courts say they are evidentiary
admissions
ix. In any discovery response, a party is authorized to supplement meaning
they have, to modify if there has been a change in an answer
x. Have to state answers with direction (can’t use may be, must be more
definite)
xi. Contention interrogatories
1. They help narrow the issues by drawing sharp lines around the P’s
claims
2. They are more difficult to avoid answering
r. Rule 34= Discovery device request for production
i. Allows one party to obtain from another party documents, to inspect
evidence, to inspect land; apply to electronic data
ii. All governed in terms of the scope of discovery, doesn’t have to be
admissible, only has to be reasonably applicable to lead to admissible
evidence

42
 iii. Only applies to an opposing party; if you want documents from a non-
party you would have to use a rule 45 subpoena
iv. Has to be in the control, custody, or possession of the opposing party
v. 30 days is the response time
1. Add three days if you send it out by mail
vi. Before you can get a motion to compel from the non-answer after the
delay, you must have conferral (call and ask opposing party for answer)
vii. (c) takes into account the rule 45 subpoena for getting information from
non-party
viii. Don’t necessarily have to send you the things, they can make you come to
their office to inspect
ix. Electronic stored data
1. Active online data
2. Nearline data (disks and things like this?)
3. Offline storage archives (tapes)
4. Backup tapes
5. Erased or damaged data fragments
x. Spoiliation is a concept that runs all through discovery
1. Destroying evidence before a rule 34 request for production
s. Rule 35= Permits a party to compel another party or someone under their custody
or control to submit to a physical or mental examination
i. Cannot just simply send out a request to have the other side submit to an
examination; it requires a court order
ii. (a)= the court where the action is pending may order a party to submit
1. A party whose mental or physical condition is in controversy
iii. Doesn’t technically have to be by physician, psychologist, etc…; it could
be a chiropractor
iv. (b)(4)= By requesting and obtaining examiner’s report, or by deposing the
examiner, the party examined waives any privilege it may have
concerning testimony about all examinations of the same condition
t. Rule 36= Request for admissions
i. Done to try and narrow and eliminate contested issues of fact in the case
ii. If you make an admission, it is only good for the life of the lawsuit
u. Hickman v. Taylor pg. 831
i. Rule 26 (b)(3)(a & b)
ii. Work product doctrine
iii. Tugboat going across the Delaware river that sank while it was towing a
railroad car near Philly; 5 of the crew members died and the cause of the
accident was unknown; tug owners went out and hired counsel to defend
against potential law suits as well as sue to rail road company whose car it
was
iv. Signed statements from some of his interviews, but also got other
statements that were not signed
v. Survivor filed suit and sent interrogatories to the tug owners asking what if
any statements of the crew members were taken and wanted to have them
attached

43
 vi. Another interrogatory asked if there were any statements made or memo
concerning the sinking, salvage of the tug boat
vii. Lawyers said this was privileged
viii. District court added that the info. was discoverable, and the third circuit
reversed holding that the matter was privileged
ix. Supreme court said a rule 45 subpoena should have been used
x. P argued that the privilege should have been narrowly construed to be
between attorney and client, not between other opponent
xi. Court said that discovery is meant to be liberal under rule 26 so that all
parties can argue their claim correctly
1. Has limits
a. Can use these to annoy other party
b. Cannot use discovery to seek privileged information
xii. Court decides that the memorandum statements from surviving crew
members and the memos the attorney made after talking to the crew
members, did not fall w/in the attorney client privilege
xiii. Work product is not a privilege and is distinct from attorney client
privilege
xiv. P seeks as a matter of right things said be witnesses who are available to P
and had chance to be at open forum conversations; so the court said the P
wanted access to the thinking process of the other side
xv. Court draws a sharp line around, mental interpretations, legal
understandings of the lawyers b/c lawyers need to have a zone of privacy
v. Mental impressions
i. That is rarely available for discovery
w. Rule 26(b)(3)= work product doctrine
i. Work product is not a privilege and not a mental concept
ii. It is discoverable
iii. Codification of Hickman v. Taylor
iv. The work product doctrine provides that a party may not obtain discovery
of documents or other tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative. But,
those materials may be discovered if
1. They are otherwise discoverable under rule 26(b)(1)
2. The party shows that it has substantial need for the materials to
prepare its case and cannot, w/o undue hardship, obtain their
substantial equivalent by other means
v. Surveillance tapes generally not work product b/c it can be evidence used
by both parties; as opposed to photos taken by investigators and things
vi. Generally does not apply to facts concerning the creation of the so called
work product, nor facts gathered by the lawyer
vii. Once a document is closed by work product protection it is generally
protected in other litigation
viii. Need may overcome protections offered by work product
ix. (B)= mental impressions have the highest level of protection
1. Pretty much never discoverable

44
 x. (C)= exception to work product is entitled to get a copy of his own
statement from the other side
1. A non-party may obtain a copy of their statement as well
xi. Work product doctrine is subject to waive
xii. Work product can be waived if you fail to assert it or fail to disclose it by
giving it to the opposing party or give it to a third party who could then
give it to someone else
xiii. If your client has a treating physician then they might act as a expert
witness as well as necessary witness so they may not be shielded from the
other side by the work doctrine
xiv. If a lawyer provides testifying expert w/ information then the other side
can discover that b/c it is no longer protected by the work doctrine
xv. Attorney client privilege is directed at protecting client communications
and to promote confidentiality between the attorney and client
1. The person asserting the privilege has to be a client or wants to be
a client
2. The person to whom the communication is made must be a lawyer
or a subordinate of that lawyer and generally needs to relate to the
seeking or giving advice or assistance
xvi. Upjohn v. U.S. pg. 841
1. Independent accountants that were doing an independent audit and
found out that bribes were being made to foreign officials
2. In house lawyer got one of his lawyer’s to consult and also talked
to upjohn’s CEO
3. Lawyers sent questionnaire to all of its foreign located managers
4. 6th circuit held that the attorney client privilege was not applicable
in this context to the extent they were held
5. Work product doctrine not applicable in administrative proceeding
6. Supreme court said= rejected the control booth theory b/c low and
mid level employees need info from lawyers
a. All the information was in the course or scope of their work
b. Distinguished that what the employee’s disclosed internally
to the corporate lawyers was under the attorney client
privilege, but the IRS was not prevented from interviewing
those clients and asking factual questions; anything that
the employee’s shared w/ lawyers was discoverable
c. ROL: Underlying factual information is discoverable, just
their conversations w/ the corporate counsel
xvii. Factors identified for when information can be received from employees
of the corporation (not set in stone)
1. Interviews or communications have to be made at the direction of
the corporate counsel
2. Employee communication were made to corporate counsel or
someone in their direction
3. The info being solicited or obtained from employees relate to the
course and scope of their duty

45
 4. Employees at the time they are providing the info are on notice that
the…
x. Rule 16
i. Gives the judge great authority over the management of cases to make
sure case is heard efficiently and is fair
ii. Object of the pretrial conference is to narrow down issues in the case
iii. Pretrial conferences; scheduling; management rule
iv. (a) sets out the purposes of pre-trial conference
v. (b) regulates the issuance of pre-trial scheduling orders
vi. (c) describes different categories that a court can place on judicial calendar
vii. (d) governs the issuance of pre-trial orders after the court holds a
particular pre-trial conference
viii. (e) governs final pre-trial conference
ix. (f) violations can lead to sanctions
x. Discernable

Summary Judgment – Rule 56c provides standard

Short circuits lawsuit

Prevents/avoids trial
Not necessarily a final judgment
Either party free to use
Can knock out case, defense, issue (partial summary judgment)
No material fact in question, occurs when movant has right to decision as matter of law
If lacking material fact necessary to prosecute case, then not entitled to SJ – not discretionary
Evidence/fact: what rational factfinder would find necessary
Based on personal testimony in form of affidavits
Person must be competent to testify
56f provides ability for court to grant more time if cannot oppose via affidavit
Most useful when legal question is main source of dispute
Parties often stipulate to facts to produce MSJ
By rule, has to be served at least 10 days before hearing
Generally do not have hearing set prior to service
Court draws all inferences in favor of non-movant
Reasonable inferences, accept facts as is
If dispute turns on credibility, SJ likely not awarded b/c goes in favor on non-movant
Generally only rule on admissible evidence
Some courts will attempt to reduce inadmissible evidence to proper form
Also can occur if file a premature MSJ prior to discovery’s completion
Courts increasingly not tolerant of such a situation

Similarities and differences with 12b6

Both dispositive, in that want to end suit
Principle difference is that 12b6 confines judge to 4 corners of pleading
MSJ has broader scope
MTD transforms into MSJ if attach evidence, under rule 12

46
 Court obliged to treat as MSJ

P can move for SJ no sooner than 20 days after commencement of action, or immediately after D
files

D may file at any time

May file cross motions for SJ

Doesn’t mean that disputed facts exist
Courts treat as independent

Not clear if filing tolls time when D must answer

Very easy and often to ask for extension and have it granted

Celotex Corp, SCOTUS, 1986

If party can demonstrate that movant hasn’t proven essential elements of case, then
does not need evidence and has no duty to support MSJ with evidence of their own
can win simply by showing holes in other party’s case
As practical matter, should still file/use evidence
Changed paradigm of SJ – stressed utility of it and began uptick in use

Anderson v Liberty Lobby

If one part has heightened burden for whatever reason, carries over into SJ form
Enlarged scope of SJ by expanding traditional areas covered by SJ
State of mind issues – fraud – once thought inappropriate
Post-Anderson, more courts willing to use SJ even if dealing with knowledge
Fed courts still reluctant to embrace such a standard – questions of evidence

Ashito v Electric, SCOTUS

MSJ may be granted even if evidence exists that supports reasonable inference

RULE 41 – PROCEDURAL ASPECTS OF (IN)VOLUNTARY DISMISSALS

Allows P to abandon suit – either permanently or to start over

Determines timing/frequency of procedure
Designed to protect D from serial suits, talked about in terms of harassment
Happens for many reasons
Mistake, judge conflicts, pending suits in other jurisdictions, discovery problems, etc

Right to dismiss unilaterally – 41(a)(1)(A)(i and ii)

Limited to time before party serves answer or MSJ or stipulation prior to dismissal
Once that time past, done by stipulation of all parties or via court order

47
 Have to dismiss all pending claims to invoke Rule 41, otherwise use Rule 15
amendments
Voluntary dismissal it not an adjudication
41(a)(1)(B) – done w/o prejudice
Dismissal does not cut off time to file answer
Can be dismissed even if D objects
In supplemental counterclaims situations, where jurisdiction would not survive on
own, court could condition dismissal on ability to re-file

2-Dismissal Rule:
First voluntary dismissal by P is w/o prejudice unless ct order says otherwise
After answer /SJ, dismissal voluntary
After settlement, dismissal done by stipulation of both parties
Second voluntary dismissal by P has effect of adjudication on merits
If second dismissal is done via stipulation or court order, does not apply
Second dismissal must be in Fed forum

Involuntary dismissal – 41(a)(1)(B)

Occurs when:
P fails to prosecute
Sanction to force P to comply with court orders – pretrial schedule, discovery
issues
Generally disfavored, as violates policy of deciding case on merits
Involuntary dismissal ordinarily operates as adjudication on merits unless stated
Unless done for reasons of venue, jurisdiction, joinder

41(c) also applies to third party claims and actions

RULE 55 – DEFAULT AND DEFAULT JUDGMENT PROCEDURES

Former is necessary to secure latter, and are separate
Entitled against party who fails to defend (plead/respond) when affirmative relief sought
Enforceable decree
Mistakes of the lawyer are attributed to the client unless it is gross negligence

When it occurs:
When party fails to do anything (rule 55)
As sanction, when parties fail to comply with particular orders (rule 37 and 16)
Extreme sanction

In general, strongly disfavored because of policy behind Fed. R. Civ. Pro.

Party can show diligence/clean hands/circumstances to defeat defaults

55(a) – default entered by clerk

Default (which is first step in securing default judgment) entered when party fails to
respond

48
 ‘Defend’: seems to mean a summons, pleading, answer – more than mere
appearance
Can be avoided if respond within set time – 20 days
Not appealable
Court can set aside for showing of good cause via affidavit or some other record

Effect of default:
Deems admitted all well-pleaded complaints
Effectively makes party liable (see 55(c))
Cannot contest liability once defaulted
Not deemed to admit pure conclusions of law
Do not admit to damages

Factors the court considers

1.) Possibility of prejudice to P if they don’t
2.) Merits of the claim
3.) Sum of $ at stake
4.) Whether statement of facts are disputed on their face
5.) What the court knows about the reasons for default

55(b) – default judgment entered by clerk when:

D was complete no-show
Courts construe appearance very broadly, especially for pro-se litigants
For sum that is certain or sum made certain via computation
D not a US party
P makes requests and shows amount

In theory – certainty of sum can be difficult, and produce unfair results at small-claims level
More often, requires court evaluation, especially if calculating attorney fees
If not certain, court must hold hearing and bring in parties
Once decided, functions as final judgment

If entitled as matter of right, more of a discretionary matter

Courts will look at merits, funds available to be paid, fairness, amount of sum, prejudice (if any),
strength of facts, reasons why default required, etc

Default judgments must mirror amount sought in complaint

1. Clerk
a. D must not have appeared in anyway
b. D is not an infant or a minor or an incompetent person
c. Damages are a fixed liquidated amount
d. D is not the US or US subdivision
e. P actually makes a request for a default judgment and the default judgment
states all the facts and issues needed

49
 f. If these 5 things are not met then the court has to enter a default judgment;
(courts usually construe appearance liberally)
2. Courts
a. Rare instance in theory
b. If D has any way appeared in any action, the D is entitled for 3 days notice on
hearing for default judgment
c. Discretionary decision by the judge; not entitled to as a matter of absolute
right
d. Where there are multiple D’s, default against one does not serve as default on
the others

55(c) – asking court to set aside default judgment (though not default itself)
Must show good cause, if defense could have been used, prejudice (if any)
Linked with rule 60(b) – setting aside final judgment in equitable context
General rule: less culpable you are, more likely it will be set aside

RIGHT TO JURY TRIAL – RULE 38

Presumes right to jury trial
Preexisting via 7th Amendment and English Common law in 1791
7th Amend only binding at Fed level
Similar rights enshrined at state levels via statute and constitution

Not deemed an absolute, ipso-facto, prima-facie right:

Must be pled no later than 10 days after last pleading directed towards jury trial issue
Better to ask early, in other words
If multiple D’s, 10 days runs from answer of last D concerning issue
Has to be in writing, and via a complaint

Can only raise in amended complaint if raising, for first time, issue that generally has jury right

If filing compulsory counterclaim, D does not need to raise because comes out of same nexus of
facts and already should have been stated
If a permissive counterclaim and has not been raised, then need to raise it

Jurisdictional split re: raising, waiving, and manner thereof

Can be sought on specific issues, rather than specific claims

When done in this manner, opposing party needs to list what issues they want before jury

Once jury trial made, cannot be withdrawn w/o consent of all parties or via court order

Fox v Beacon

50
 When common law and equity matters raised through same set of facts and in same case,
jury questions must be decided first, and factual determinations of jury are binding on
subsequent equity decisions and determinations
Cannot close of jury rights simply by legal maneuverings or timing/structure of suit
Illustrates great import of jury rights
Can get jury trial regardless of how trivial matter appears, or labels parties use

Test for jury trial right:

If existed in 1791 (historical test)
If should take effect due to common law evolution
Decided issue by issue
If dealing with statutory action:
Court looks at remedy and CoA to decide if jury right attaches
If legal question, generally need a jury
If question of equity, generally not a jury issue
Also will look to see if congress has created specialized court:
Military, patents, bankruptcy, etc

Dealing with juries

Challenges – two types: preemptory and for cause

Generally get three of the former (in fed ct)
Always want to negotiate for as many as possible
Backstrike – technical term for going back to passed over jurors and excuse via
preemptory challenge
Jury process is required – at least submitting written examination, if not personally asking
Jury pool is not considered naturally unbiased

Cannot be used for improper, unconstitutional reasons

Can challenge under Batson/Edmundson

Show juror is part of protected group
Burden then shifts to excusing party to articulate fairly rational explanation
Relatively low burden
Aggrieved party can then come back and show explanation not true and really devolves
back to protected status
If not raised almost immediately, deemed waived

RULE 48
Minimum number of jurors – 6, unless parties otherwise consent to less

JURY INSTRUCTIONS

Judge has great discretion to allow/deny

51
If request denied, must show
Instruction request actually made and accurately states law
Evidence supporting instruction for jury to act upon
Must be necessary to decision of case

Instructions should be precise/clear/fairly short

Many jurisdictions have model forms, but do not cover every issue/case/defense

Parties generally entitled to every instruction raised by evidence

Deemed harmless error if some reason particular question not raised but covered elsewhere

In Fed. Ct, submit q’s before trial

Often will have jury question conference at some point prior to trial
Supposed to be submitted jointly, but rarely happens

In a jury instruction, generally want to have cases that authorize statement of law/defense/burden
of proof
Party prosecuting has burden or production and persuasion
Measured by hypothetical/reasonable juror examining evidence and possibly rendering
judgment in favor

Three levels of evidence: needs to be indicated in jury instruction

Preponderance of evidence
Clear/convincing evidence
Beyond reasonable doubt

Quotient verdicts – damages contemplation:

Coming to verdict via mathematical calculation
Generally frowned upon
Deemed improper b/c undermines deliberative process and review of testimony
Challengeable by either party

Directed verdicts – requests made orally or in writing, often done as formality at conclusion of
either party’s presentation
Judgment as matter of law – pre-verdict
Renewed judgment – post-verdict

RULE 50

Way to stop trial from occurring because no reasonable juror could return verdict in favor of
party

Lack of reasonably sufficient basis – can be claim/defense/etc, including particular issue

Legal question; question of evidentiary (in)sufficiency

52
Can even be raised after opening statements, technically. More often raised as matter of course
after each side presents case

Judgment as matter of law is coequivalent with MSJ

Court basically saying that reasonable people could only conclude one way, so no need to submit
to jury

Standard for renewed judgment is same

Done after jury renders verdict, but have to make motion prior to jury submission
Some courts treat it as discretionary – allowed irregardless of time of filing
Trial court always free to consider motion for new trial at any time, which is way around
Rule 50 technical requirements
Common to just use one pleading for both motions
Some differences in scope between motions
Greater review under motion for new trial

Court looks to all the evidence in file to determine if proper to grant (not uniform, however)

Court not permitted to weigh evidence to resolve controversy/testimony, or consider quality

Will consider in light most favorable to non-movant

10 day timeframe for filing, cannot be extended (unlike other time frames in rules)
See rule 6(b) for filing for extensions with other rules
Does not take into account mailing period; very strict

Cannot raise issues that were not raised in motion for JMOL

Rule 50c1
If granted, requires court to rule on any motion for new trial (if made) in case judgment
later vacated/reversed. So ruling becomes operative at certain point

50e – it trial ct denies JMOL, party who defended against is on appeal can ask for a new
trial if appellate ct reverses the denial of JMOL from trial ct

Does not apply to non-jury cases

52 applies to judge tribunals

Rule 59 – motion for new trial

Permits trial judge to correct mistakes made at trial without having to go up to appeal

Does not specific what grounds can be

53
 Can include: evidentiary issues that are prejudicial, attorney/juror misconduct, mistakes
in jury instructions

A1b – new trials in non-jury cases

Rule 51 – types of attorney misconduct improper in closing/opening statements, or raising

evidence that is supposed to be suppressed
Motions in liminae – bringing up evidence banned by judge

Remitature – when jury verdicts excessive, court can remedy; not against 7th amendment
Way to avoid granting new trial
Way to compel benefitting party to agree is by threatening new trial that could
completely remove judgment
When judge enters, she figures out amount

Aditure – when jury verdict though too low; violates 7th Amendment; not available to federal
judges; available to many state courts

When trial judge considering motion for new trial, can weigh evidence (not like JMOL)

59c – affadavits can be filed in support of motion for new trial

Opposing party has 10 day period (can go up 20 days) to oppose
Affadavits need to be filed simultaneously with motion

59d - Trial judge can grant new trial on own initiative

Can also do so for other reasons that parties asked
If so, needs to give parties notice
Has to set out rationale with specificity

59e – motions to amend/alter a judgment

Designed for a district court to correct own mistakes in entering judgment
Strict 10 day limit
Also can used by parties when manifest errors of law or court error

Motion to reconsider – outside rules, but still used

Often brought under 59e
Offends justice, change in law, availability of new evidence, something overlooked
Or when court commits palpable error in calculating justice
High standard, especially because basically accusing judge of fucking up
Considered extraordinary remedy

28 USC 1291
Confers grant of general appellate review over trial court at fed level
Party can only appeal when final (final judgment rule)

FINAL JUDGMENT
Decision by judge that ends litigation on merits and only leaves execution

54
Does not include awarding of fees

No precise litmus test

Many summary judgments are not final, particularly if done with grant to refile
But if granted with prejudice, probably appealable

General prohibition against piece-meal review

Final judgment rule is general rule

54b is exception (when multiple parties/claims, courts can issue some, but not all)
1292a/b also contain exceptions
a) Temporary restraining order are immediately appeable
Statutory, judge, and rule based exceptions
Collateral order doctrine – when something sufficiently impt to review
Order has to sufficiently conclude question
Issue must be separate but sufficiently connected
Effectively be unreviewable on appeal if wait till end of case
Mandamus is another avenue, under 28 USC 1661
Appeal triggered by notice of appeal, and content determined by 3c
30 days to file
If defective, fine as long as on time
Certain post-trial motions toll running of appeal clock
Motion for judgment under 50b
Motion to alter/amend under 59
Motion for new trial under 59
Motion for relief under rule 60
Motion for reconsideration DOES NOT toll

54d awards fees, and have 14 days to appeal

Can be enlarged, but if miss filing, is a problem
Court can hold hearing, though not required, if disputed facts

RES JUDICATA, STARE DECISIS, COLLATERAL ESTOPPEL, CLAIM PRECLUSION

Stare decisis – doctrine of precedent (CLAIM PRECLUSION)

Similar to res judicata in that has controlling influence on later cases
Practically, means particular question of law decided same way
Different function that res judicata
Tool to develop uniform law
Directed at predictability (for all parties)
Appearance of uniform decisions
Protects reliance interests
Less of a rule in constitutional/SCOTUS questions, unlike lower courts

55
Effects of final judgment/res judicata – foreclose litigation of matters not even litigated because
of determination that should have been raised in case
Concept of preclusion
Policy of compelling P to bring all claims together, and not split causes
Brings finality
Protects parties from burdens of relitigation, economy
Promotes certainty

To apply: has to be final judgment, has to be same claim/CoA (transactional view), must involve
same parties

Merger/Bar
If have two CoA, and only bring one and win, res judicata bars bringing new suit because
it merges all claims
If lose and bring another, res judicata bars subsequent claim

Differences between doctrines

SD only applies to legal questions
SD more flexible and applies to all parties
Fact that issue on appeal does not remove res judicata effects, except if appealed

Judgment must be on merits to have effect – venue, jurisdiction dismissals not enough
12b6 dismissals are treated as judgment on merits

If do not raise res judicata, deemed waived. Treated as affirmative defense

Often see in MTD or MSJ

ISSUE PRECLUSION/COLLATERAL ESTOPPEL

Turns on relitigation of issue of fact/law already litigated and determined by court and
was essential to judgment
Need identity of issues, actual litigation/resolution, necessity/essential to outcome
If party in first law suit did not have ability to present, does not apply
Discretionary: courts look towards fairness, evidence, other factors
Will not apply when default J in first case
Does not generally apply to legal questions, but instead when fact issues or mixed
Used defensively or offensively
Claims in two suits do not need to be similar

Differences between RJ and IP

Claim/issue
Parties/all people can invoke (no issue of mutuality[binding of both parties in suit])

For exam, there will be a bonus question on the New Deal, the three musketeers and the four
horsemen

28 USC 1331

56
The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.

FRCP 14, 19, 20, 24

57