Personal Jurisdiction 22/08/2007 21:04:00

← VII. Personal Jurisdiction

← a. Due Process of law requires court to give full, faith and credit to a judgment rendered with the
following:
• 1. Basis for jurisdiction (Power Theory):
o Personal (over a person)
 a. If they were served in the state
 Jurisdiction based on physical presence alone constitutes due
process because it is one of the continuing traditions of our legal
system that define the due process standard of traditional notions of
fair play and substantial justice. (Burnham v. Superior Court)
 Normally for a state to assert jurisdiction over a person
• Assertion is in accord with the law of that forum
• Law in that forum does not exceed the permissible grounds
of Due process set out by the Supreme Court
 It is possible for a person to be privileged from service of process
while in the state:
• If you are brought into the state by force or fraud by the
plaintiff
• In Illinois, if you pass through the state to testify for court of
another state you cannot be served
• If you waive extrication in Illinois you cannot be served on an
issue related to the criminal matter

 b. If they consented to jurisdiction of state over him
 Actual consent in clause in a contract
• You can’t put a clause like that in the contract just to make it
awkward and difficult for people to sue. But in this case it
did make sense because that is where there home base
was. It allowed them to sell their cruise tickets cheaper.
 By appointment of a person in that state as your agent with express
authority to accept service of process on your behalf
 Implied consent by appearing in court (general appearance)
 If a person shows up in a case and starts defending they are said to
have filed a general appearance and waived their objection to
personal jurisdiction

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 c. If they were domiciled in the state or a resident of the state
 Divorces -- Marriage is a kind of status and any court where that
status is located can grant a divorce abolishing that status in a quasi
in rem jurisdictional way. The status is located in the state of
domicile of either married partner. Married status does not extend to
child support or alimony. The court does not have jurisdiction over
the person in the married couple, only the status of the marriage.
 d. The “Minimum Contacts Test-“ – International Shoe
 In order to subject the defendant to a judgment in personam when he
is not present in the state, he need to have certain minimum
contacts with it such that the maintenance of the suit does not offend
the traditional notions of fair play and substantial justice.
 If a corporation receives the benefits and protections of the laws of a
state, including the right to resort to the court to enforce those rights,
it should be subject to jurisdiction.
 “General Jurisdiction”
• the action was directly connected to activity in the state and
done in a regular and systematic way.
• the action was not directly connected but regular and
systematic.
 “Specific Jurisdiction”
• the action was directly connected but isolated
• No supplemental jurisdiction exists in cases involving
specific jurisdiction
• Must have:
 1. Minimum Contacts –
• Action in the state( (mail or telephone may suffice) –
“purposefully avail “
• Cause of action must be directly connected to the action
• Action must be purposeful
o Keaton v. Hustler -- Shipping goods to a state is
enough to satisfy minimum contacts because the
injury directly arose from shipping the goods
o Calder v. Jones -- Performing an action in a state
knowing it will cause injury in another state subjects
a person to personal jurisdiction over

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 o Long term contract is sufficient
o Doing Business is sufficient (Coastal Video v. The
Staywell Corp.)
o Putting a good into Stream of Commerce is not
sufficient
o Service on an officer or agent of a corporation is not
sufficient to gain personal jurisdiction unless the
corporation is doing business there unless you are
doing such systematic and continuous activity that
you avail yourself of general jurisdiction.
o Internet Cases
 Look at the interactive nature of the website.
 If its not interactive you normally
won’t get jurisdiction
 If it is interactive, what activities
would cause you to be subjected to
the jurisdiction in the state?
 Selling things to people who logged
on and shipping items into the state
 There is a problem with inverse use
of Internet as a source of jurisdiction
over the small consumer.

 2. If Minimum Contacts exist, the assertion of jurisdiction must not

offend traditional notions of fair play and justice. Look at:
• 1. Burden on the defendant
• 2. Interest of plaintiff
• 3. Interests of the state of forum
• 4. Interstate system in getting case into most convenient
court
• 5. Any substantive factors should be considered

o In rem jurisdiction or quasi in rem
 The presence of property of the defendant in the state
 Property must be attached prior to suit (a seizure on behalf of the state).

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  May subject the property to their power by selling property and turning
proceeds over to attorney who was owed. If sales price didn’t’ satisfy any
claim they couldn’t enter judgment over Neff.
 “Pure” in rem
 not against individual, against property regardless of who owns it
 Quasi in rem
 against a person but predicated on the ownership of property within
the state
 only constitutional if the defendant has minimum contacts within the
state
 1. Cause of action is related to property in state
• Constitutional according to Sheffer
o You will also have personal jurisdiction over person
but you may use quasi in rem jurisdiction to serve
them by publication instead of personally which is
required for personal jurisdiction
 2. Cause of action is NOT related to property in start
• Unconstitutional according to Sheffer
 Internet Cases: Allows you to use in rem jurisdiction to vindicate
domain name by attaching it at the location of the registrar’s
computer allowing the court in that state to have jurisdiction.

• 2. Defendant be notified and have opportunity to defend (Notice Theory)

o Personal service fulfills notice requirement
o Consent to Juridiction
o Types of Clauses pertaining to Jurisdiction
 Consent to Jurisdiction of a particular court for litigation of a particular case
(does not exclude the jurisdiction of any other state but gives preference to
the jurisdiction mention)
 Choice of Forum clause – Carnival Cruise line case. Not only a consent to
the personal jurisdiction to that particular forum but it excludes possible
litigation in any other forum.
 Valid as long as it is valid contractually.
 Agreement to Arbitrate dispute. Agreement in contract saying parties will
submit to arbitration for disputes arising out of contract.
 Cognovit Clauses (Confession of Judgment Clause)–

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  Consents to courts jurisdiction over you and that judgment is
confessed against you. You waive any defense.
 Courts have said it cannot be used in a consumer transaction for
personal family or household use.
• Applicable in leases (NOT in CHICAGO but in suburbs)
• Applicable in loans
o Under Illinois Law if you sign a clause you may
 Rule 276 provides a procedure by which
you can move to have that confession of
judgment against you set aside. Burden of
proof is shifted from plaintiff to defendant to
show he doesn’t owe the money.
 The Constitutional Requirement of Notice
 Service of Process
 State must have a basis of jurisdiction and defendant must be given
such notice as to allow them to defend themselves in court
• When basis is personal service in state, the service of
process, serves both as basis of jurisdiction and gives
adequate notice of suit with opportunity to defend.
• New basis of jurisdiction must still have some notice
 Notice of jurisdiction in rem
• 1. The notice of an action pending, given to a party must be
of such nature as reasonably calculated to convey the
required information and it must afford a reasonable time for
those interested to make their appearance.
o To be reasonable must have a good chance of
reaching person or be the best way to serve person
o Notice by mail is required as to all the beneficiaries
of the trusts that the bank has addresses for.
Contingent future interests do not need to be notified
by mail.
• 2. Service of publication is normally proper because Owners
of tangible property are such that they usually arrange
means to learn of any direct attack on his possessory rights.
Service of mail is more likely to get notice to parties involved
when the property involved is not tangible. (trusts)

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←
• Service of Process in Federal Courts – Rule 4
o Service can be given by person over 18 who is not a party
o Waiver of service of process
 Person may agree to waiver or refuse
 If they waive it that waives any necessity of service of process, but
you do not waive any defense including personal jurisdiction but you
may not object to process or means of process.
 Defendant has 60 days instead of 20 to respond to complaint if
service is waived and up to 90 days if case is filed outside the US
 If you don’t agree to waiver and your request is deemed to be
unreasonable then you will have to pay other sides costs of making
service on you (including attorney’s fees) (Not applicable in IL)
 If other side doesn’t agree to waiver then you must make service of
process under normal rules
 US government and infants and incompetents cannot waive
service of process.
o How to make service:
 1. In any way that is valid under the law of the state where the federal court
is sitting including long arm statutes.
 2. Personal service
 3. Abode service (leaving summons at defendants normal place of abode
with person of reasonable age and discretion residing therein (do not have to
be family) and informing them of the contents.
 4. serve an agent authorized on defendants behalf
 corporation: any officer, managing or general agent or agent
specifically appointed to receive service
 in IL: any agent of the corporation (not janitors or menial workers)
 Federal court can serve within the boundaries of the State it is sitting
 Joined by 14 or 19 – Third party defendants or indispensable parties
 100 miles within place where summons was issued
 May serve outside boundaries of state when permitted by other
federal law  1335 Interpleader, anti-trust cases
 Must be made within 100 days of when you file the suit

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  In IL if you do business in IL under an assumed name (ex: Mike’s Hotdogs)
you must file with the county clerks office. You can find out if it is an
individual or a corporation. If they aren’t listed in there you can sue the
unknown owner’s of Mikes hotdogs and serve any employee.
 You can have minimum contacts with the US in general but not with a
specific state but only in federal court and in cases arising under federal law
 Federal statute provides for nationwide service of process (Interpleader)
 Enforcement of civil contempt order arising from litigation involving
fed ?
 Service outside US
 Hague Convention – each signatory country must appoint a central
authority
 You contact the central authority and send your request to the
central authority to serve defendant
 1. Any way that is legal in that country
 2. Any way plaintiff requests as long as it is not contary
 3. If defendant voluntarily accepts service.
 If person has assets in US, serve them in a way enforceable in US
and attach their assets.
 Sewer Service – where server signs service of summons even though he
didn’t actually serve them
 In IL you can contest the affadavit but it will not be set aside by your
own uncorroborated testimony you must have corroborating
testimony.
o
o b. Response to a state’s exercise of jurisdiction over you
 1. Ignore it
 Default judgment entered against you
• When the other state brings the judgment to your home state
you could collaterally attack the claim based on the fact that
they have no jurisdiction
o If you win, the judgment won’t be enforced
o If you lose, you have lost the right to defend the
case on the merits
 2. In federal court, file a 12(b)(2) motion to dismiss for lack of personal
jurisdiction.

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  You can waive it by filing another Rule 12 motion and don’t include
lack of personal jurisdiction as a defense or if you don’t file a rule 12
motion if you don’t raise it in your answer
 3. In a state court you may file a special appearance. The first thing you
have to do is file a special appearance objecting to the state jurisdiction and
you couldn’t join anything else in the motion.
 Illinois rule: Rule 5-2-301, your objection to personal jurisdiction
must be the first thing you do in the court except asking for an
extension of time and you can join other issues with it if properly
identified and isolated.
 If you lose your 301 motion, and then you defend on the merits, you
do not lose the right to contest on appeal whether the court had a
basis of jurisdiction but you do lose the right whether service of
process was properly effected
***Anytime you contest the jurisdiction of the court (state or federal) you lose the right to
collaterally attack the decision (res judicata).
←
• If the action was not directly connected and isolated then no jurisdiction exists.
Federal Courts sitting in the state have the same personal jurisdiction as the state
court of that state.

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←
← I. Subject Matter Jurisdiction
← - exlcusive jurisdiction- when federal court has exclusive right to hear the case,
the state court must dismiss the case if it is filed there
← - concurrent jurisdiction- when both state and federal court may hear the case,
the plaintiff may choose where to file it.
←
← a. Federal Question Jurisdiction- Section 1331, Article 3 Section 2 (Constitution)
← 1. Jurisdiction in federal cases is given in 28 U.S.C. 1331- extends to all civil
actions arising under constitution, laws or treatises of United States
← - "Arising under" = either federal law creates the cause of action or the plaintiffs right to
relief necessarily depends on resolution of substantial question.
← - Must be a substantial claim (not frivolous) or court will dismiss
← - No amount in controversy requirement
← - No diversity requirement
← - A State claim with a necessary federal law element presents a federal
claim
← only if the federal law also affords a private right of action (Merrell Dow Pharmaceuticals
v. Thompson)
← - Mottley Rule – the federal question must be an essential and necessary part to the
plaintiffs cause of action, not simply an anticipation of defense. This is an interpretation of what
Congress meant in 1331
← -- If the issue has to be determined under the federal Constitution even though it is a
state claim, there can be federal jurisdiction.
← - Declaratory judgments- declaration of rights is sought instead of damages, in order to
determine if it is a federal question, the courts look behind the declaratory judgment to the
essential nature of the lawsuit and if it would qualify for federal question jurisdiction

← - A dismissal for lack of jurisdiction is not res judicata

← 2. Certain Issues are solely for Federal Courts to decide
← - Admiralty and issues of maritime
← - Bankruptcy
← - Commerce and Anti-trust regulations
← - Patents and Copyrights
← - Federal Civil Rights laws
← - Suits involving ambassadors and/or public officials

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← 3. Issues left to state courts
← - Divorce
← - Alimony
← - Child support
← - probate
←
← b. Diversity Jurisdiction- Section 1332
← Article 3, Section II of the U.S. Constitution allows federal courts to hear controversies:
← Between citizens of different states
← 1. complete diversity- In cases with multiple plaintiffs and defendants, no plaintiff may
have citizenship in the same state as any defendant regardless of whether each defendant was
named in each claim (not required by Constitution) Strawbridge v. Curtis
← a. Exceptions-
← -High stakes class actions- most diversity suits over $5 million at stake
satisfies diversity requirement if minimum diversity is met (no federal question is required)
← - any mass action (ex: air crash) if it involves 100 or more plaintiffs with common
facts.
← -Interpleader- a proceeding by which a person
compels parties making the same claim against him or her to litigate the matter between
themselves, complete diversity not needed as long as two or more adverse claimants have
diverse citizenship
←
← 2. For the purpose of jurisdiction Puerto Rico and the District of Columbia are considered
their own state
← 3. In order to be a citizen of a state the person must be a citizen of the United States
and domiciled in a state
← - domicile – actual residence plus intent to
← remain and to return if absent
← - acquired at birth (take domicile of
← parents) and kept until it is changed may change by acquiring new residency and
showing intent to stay there if domicile is changed before lawsuit is filed to create diversity, there
is diversity as long as it exists at time of filing and was made “in good faith”
← 4. Citizenship of partnerships is determined by considering the citizenship of all the
partners or members of the organization
← 5. Citizenship of corporations- the corporation is citizen of both the state in which it is
incorporated and the state in which it has its principal place of business.

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← a. principal place of business- either where the bulk of the business takes place
(muscle test) or where corporate headquarters are (nerve center), or a combination of each
← Between citizens of a state and a state, citizen or subject of a foreign nation
← The court does not have jurisdiction to hear cases solely between citizens/subjects of
foreign states
← A permanent resident alien is treated as a citizen of the state he is domiciled in
← A US citizen domicile abroad does not have diversity against anyone thus cannot sue in
federal court (Redner v. Sanders)
← Resident alien v non resident alien – no jurisdiction
← Dual Citizens are only the U.S. citizenship counts
← Cases in which U.S. citizens and foreign citizens are mixed satisfies diversity as long as
every party is diverse from each other (i.e. US parties are citizens of different states)
←
← Amount in controversy must exceed $75,000 exclusive of interests and costs (interest
imposed by law, not interest accumulated in a contract)
← a. If the plaintiff recovers less, the court does not lose jurisdiction
← b. amount is determined by amount sought in plaintiffs complaint and does not included
amount in a counterclaim
← c. Good Faith standard applies – if person in good faith believes the amount in
controversy exceeds $75,000
← d. If the plaintiff seeks an injunction, the value to the plaintiff, the cost to the defendant
with complying to order, or the cost to the party invoking federal jurisdiction shall be used to test
amount in controversy requirement.
← e. Aggregation:
← 1. If one claim exceeds $75,000 the requirement is satisfied for all claims
← 2. A single plaintiff may aggregate his claims against a single defendant even if
they are not related. If the total amount of controversy is in excess of $75,000, the requirement
is satisfied.
← 3. Multiple plaintiffs cannot aggregate unless they present a joint claim.
← 4. A plaintiff suing multiple defendants meets the amount in controversy if each
defendant is potentially liable for an amount in excess of $75,000.
← 5. If multiple plaintiffs exist and only one’s amount in controversy reaches
75,000, supplemental jurisdicition may allow other plaintiffs to bring claims in federal courts as
long as they are factually related to each other.
← 6. Class Actions assign the claim to one or two people, if they win, everyone
wins

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← Cases that meet diversity requirement may be heard in either state or federal court
← Diversity must exist at commencement of the action
← 5. Burden of establishing jurisdiction rests with plaintiff (unless it the case is removed to
federal court by the defendant, then D has burden)
← 6. The court may use its discretion and decline to exercise jurisdiction when it exists
← a. claim raises novel or complex issue of state law- federal court
← can make a binding decision on state law
← b. claim substantially predominates over claim(s) which court has original
jurisdiction
← c. district court has dismissed all claims in which it has original jurisdiction
← 7. Counterclaims- if the original complaint must be in excess of $75,000 but the
counterclaim does not as long as it arises from same nucleus of facts
←
← 8. Devices used to create or destroy diversity
← a. Diversity denied when a party is improperly or collusively joined to invoke
jurisdiction (ex: A sues a nondiverse party and in an attempt to gain diversity assigns his claim
to B, who is diverse with defendant for $1 with the understanding that B will give A majority of
recovery.) Good faith assignments are respected, shams are not
← b. If a necessary plaintiff is purposefully omitted and that party destroys diversity
the court may decide that the case may be dismissed
← c. There is no statute that permits joinders to defeat jurisdiction
←
← c. Supplemental Jurisdiction – Section 1367
←
← - Claim may be federal question or diversity claim.
← - If the case has multiple claims and only some the claims satisfy the
jurisdictional requirement the court may still exercise jurisdiction if:
←
← 1. The claims arise out of the same common nucleus of operative fact (same
factual setting, same transaction)
← 2. Exceptions: 1367 (b) – Claims bases solely on diversity  narrows
scope of jurisdiction
← – applies to claims brought by plaintiffs joined under certain listed rules. Only applies in
diversity cases in which plaintiff is joining a new claim against a new defendant. A new claim
against the same defendant does not destroy the jurisdiction
← - does not apply to counterclaims or crossclaims made by defendant,

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← nor impleaders made by defendant.
← 3. Supplemental jurisdiction has been held to be applicable if you have multiple
claims some of which are under the 75000 limit, even if it is a claim of another defendant as
long as diversity exists and the claim arise under the same nucleus of operative facts. (only in
diversity claims)
←
4. Courts may use discretion to not use supplemental jurisdiction if:
o Complex state law
o No federal question left
5. If a party’s claim is dismissed for lack of supplemental jurisdiction and the statute of
limitations runs out you have 30 days to re-file in state court
←
← d. Removal – Section 1441
←
← - Transfer is a discretionary change in venue, Removal is the right to move the
case from state to federal court.
←
← - Worker’s compensation laws of state cannot be removed
←
← 1. any case that could be originally filed in federal court can be removed there if the
plaintiff files in state court only in the district and division embracing where the action is pending
← 2. The entire case must be removed.
← 3. Only the defendant may remove a case.
← a. defendant- any actual party directly adverse to the plaintiff
← b. if multiple defendants are involved, they all must join to remove
← 4. Diversity in removal cases is treated the same as a case originally filed in federal
court
← Exception: If case is in state court of ANY defendant, case may not be removed.
← a. Diversity must exist at the time the case was filed as well as when
removal is filed
← Exceptions:
← - If a plaintiff voluntarily dismisses his claim against nondiverse parties in the state court
action, the case can be removed if it meets the other requirements for removal.
← - Caterpillar v. Lewis- If a case in which diversity does not exist and the case is
improperly removed but the district court fails to remand any judgment by the court is valid
provided that diversity did exist at the time the judgment was entered.

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 • If district court recognizes case was improperly removed it must dismiss it
← 6. Removal based on supplemental jurisdiction must satisfy the conditions as it would if it
was filed originally in federal court.
← 7. Must file for removal within 30 days of complaint
← 8. Diversity jurisdiction must be satisfied within 1 year of filing of claim in order to remove
← 9. Objections to removal must be made within 30 days following filing of notice.
Objections to the subject matter jurisdiction of federal court can be made at ANYTIME.
← 10. You have 30 days after removal to file a remand.

←
←
←
← e. The Erie Problem
←
← 1. Erie Rule -- The federal court sitting in diversity must apply the substantive law of the
state in which it is sitting. This can be state statutes or the opinions of the highest court in the
state. This only applies when there is no federal law on point. This overrules Swift v. Tyson.

← 2. The courts apply the same substantive law as the court of the state where the federal
court is sitting, including the conflicts of law rule.
←
← 3. substantive law = law that governs people operating in society (ex: torts, property)
← procedural law = the way we litigate the rules that we use to litigate an alleged violation
of substantive law
←
← 4. Hanna v. Plumer
← - Federal court could apply the federal rules of procedure even though the
state rules of procedure may differ. Erie does not void any federal law, it merely applies the
state law in the absence of a federal rule.
← - Outcome determination analysis – rule has to be outcome determinative
as of the time the choice of forums was made. Once you make the choice of forums, it is no
longer outcome determinative, you must apply the procedural rules of the forum you choose.
The rule was not outcome determinative at the time the choice of forums was made, but
after the forum had been selected and defendant was served by rules of that forum.

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 • - Presence of federal rule specifically on point -- Enabling Act- in adopting rules of
civil procedure you may not interfere with substantive rights. The fact that a federal
rule has been adopted unless you can prove it violates the enabling act, it must be
applied even if there is contrary state rule. (i.e. FRCP on point will always prevail)
←
• 1. General Rule: A federal court sitting in diversity must apply the substantive law of
the state in which it is sitting, and its own procedural law. To determine whether a
law is substantive or procedural, look to the kind of federal law that conflicts with the
state law in the fact pattern, and then apply the appropriate test.

2. Tests:

1. Is there a conflict with a federal rule or FRCP that is on point (can be difficult to
court's inconsistent standards).
o Conflict with a federal practice or FRCP that is not on point:
1. Modified outcome determinative test
1. Where there is a conflict between state law and federal practice,
presumption that state law will prevail
2. However, must ask whether, at the time the choice of forum is made,
the outcome would be different depending on whether the plaintiff filed in state or federal
court
1. If so, state law prevails unless the state practice is not bound up
with the rights and obligations of the state citizens, AND there are "affirmative
countervailing considerations of federal judicial administration present." Then, federal
law prevails.
2. Conflict with a FRCP that is on point:
1. Is the FRCP on point?
1. Yes if can't simultaneously comply with both
2. If not, apply modified outcome determinative test (see above)
2. Is the FRCP valid under the Rules Enabling Act of 1938? To determine:
1. Is the FRCP one of the "rules of practice and procedure" as
determined by Sibbach?
2. Is it constitutional (for our purposes, always)
3. If passes both tests, then FRCP must be applied. HW, if fails one or
both tests, state law must be applied.

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 **Special note: no case has ever held a FRCP to be beyond the scope of the REA of
1938.

• 2. Conflict with Constitution-Constitution always wins (Supremacy Clause)

← 5. When there is no abundantly clear state rule the court may:
← 1. Follow precedent state court has held in the past
2. Ask for certification from the state supreme court
← 3. Predict what the state supreme court would rule on the issue based on
growing trends of state supreme courts
←
←
←
←

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Venue 22/08/2007 21:04:00
← VIII. Venue
← 1391 – Venue
• Civi action founded solely on diversity may be brought
o 1. A judicial district where any defendant resides (not domiciled, can be temporary
residency), if all defendants reside in the same state (not applicable if you have
more than one defendant who reside in different states)
o 2. A district where a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial (always applicable unless cause of action occurs
outside the country) part of property that is subject of the action is situated
o 3. District where defendant is subject to personal jurisdiction at the time the action is
commenced, if there is not district in which the action may otherwise be brought
(before you can use this option you have to have a case where you can’t use
the 1st 2 because there is no valid venue in US).
• Civil action not founded solely on diversity jurisdiction may be brought:
o 1. Same as above
o 2. Same as above
o 3. A judicial district in which any defendant may be found, if there is no district in
which action may be otherwise brought.
• Corporations are deemed to reside in any judicial district in which it is subject to personal
jurisdiction at the time of the action
o In a state with more than one jurisdiction the corporation shall be deemed to reside
where it has sufficient contacts to subject it to personal jurisdiction, if there is no such
district then where it has its most significant contacts.
• An alien my be sued in any district. (But you must have pj over them)
o Dee-K Enterprises v. Heveafil – If you have alien defendants and US defendants you
must bring suit in a venue that satisfies the US defendants as well
o The general venue statute (FRCP) overrides special venue laws that place venue
more specifically
• An action against the US government or an officer
o where any defendant resides
o where a substantial part of the events or omissions giving rise to the claim occurred,
or a substantial part of property that is subject of the action is situated
o the plaintiff resides if there is no real property involved in the action
• An action against a foreign state:
o where a substantial part of the events or omissions giving rise to the claim occurred,
or a substantial part of property that is subject of the action is situated

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 o any district where vessel or cargo of a foreign state is situated
o in the district where agency or instrumentality is licensed to do business
o in US District Court for the District of Columbia
←
← Doctrine of a Local Action
• Those that have to be brought in a particular location
o If it involves title to real estate it must be brought in the state where real estate is
located
o If a suit is filed by a State to collect state taxes it must be brought in the state
←
← Venue in IL is very similar to Federal Venue
• Except you can bring it any county where a significant part of the cause of action took place
• You can bring it in the county of residence of any defendant
• Corporation is deemed to have residence in a county where it has an office and does
business
•
← 1392
• Any civil action of local nature involving property located in different districts in the same
State, may be brought in any of such districts.
←
← ****When an action is brought in state court federal venue statutes are irrelevant. Cases
removed to federal courts from state courts are similarly not subject to federal requirements venue lies in
the district encompassing the state court from which it is removed.
←
← Forum Non-Conveniens
• Doctrine whereby a court meets all the requirements (smj, pj, proper venue) can dismiss the
case if they believe there is a more proper and convenient court in which the action should
be tried.

18
• Whitney v. Madden – forum non conveniens recognized in IL by IL SC
o Has to be filed within 30 days of the pleading
o Intrastate forum non conveniens – if its filed in an inconvenient county (out of county
cause of action, out of county plaintff) the court can transfer it to the county more
convenient. (Torez v. Walsh)
• Whether a case should be dismissed on forum non conveniens lies in the sound discretion of
the trial court.
o 2 Prerequisites for Motion
 Out of state plaintiff
 Out of state cause of action
o If you have those you are supposed to consider public and private factors:
 Private factors:
 Ease of access to source of proof
 Availability of compulsory process for attendance of unwilling
 The cost of obtaining attendance of the willing
 Possibility of view of the premises
 Public factors:
 Administrative difficulties flowing from the court congestion
 Local interest in having localized controversies decided at home
 Interest in having a diversity case in a forum that is at home with the
law that must govern the cause of action
 Avoidance of unnecessary problems in conflict of laws
 The application of foreign law
 The unfairness of burdening citizens in an unrelated forum with jury
duty.
• Forum non conveniens may not be defeated unless the remedy is so clearly inadequate and
unsatisfactory that it is no remedy at all. You must take into account the public and private
factors listed above. (Piper Aircraft v. Reyno)

19
 • Defendant is required to waive statute of jurisdiction and statute of limitations if the plaintiff is
used in the correct forum
←
← 1404(a) – Transfer of Lawsuit
• civil action may be transferred for the convenience of the parties and witnesses and in the
interest of justice
• can only be transferred to a district or division where it might have been brought (must
satisfy smj, pj and venue)
• more liberally applied and enforced
• cannot be utilized to transfer cases out of the country
• Piper used forum non conveniens and not 1404 because the US court can’t transfer cases
out of the country
←
← Joinder of Claims
• Joining more than one claim by the plaintiff
o A plaintiff can bring as many claims as he wants against the same defendant, but he
doesn’t have to join them if he doesn’t want to
o If he doesn’t join 2 claims that arise out of the same action, he will be barred from
raising it by claim preclusion
o Subject matter jurisdiction and Personal jurisdiction may limit your ability to join
claims
 if you are bringing suit under state long arm statute, you cannot bring another
claim that is not governed by long arm statute.
• Joinder of Claims by a Defendant
o Crossclaims – claim by one defendant against another defendent
o Rule 13 – Counterclaims
 Compulsory – claim that arises out of the same transaction or occurrence
that is the subject matter of the opposing party’s claim and does not require
the presence of third parties (court has jurisdiction over)
 Are the issues of fact and law the same?
 Would res judicata bar a subsequent suit on a counterclaim?

20
  Is the same evidence involved?
 Is the counterclaim logically related to the main claim?
 Permissive – claim not arising out of same occurrence or transaction that is
the subject matter of the opposing party’s claim (court does not have federal
jurisdiction)
o Crossclaims
 There are no permissive crossclaims. They must arise from the same
occurrence or transaction that is the subject matter of the opposing party’s
claim.
o Permissive Party – Rule 20
 Plaintiff can join any defendant or other plaintiff as long as the claims meet 2
requirements
 Must arise out of same transaction or occurrence or series of
occurrence
 Must be a common question of law or fact
 Court can separate claims if one of these conditions does not exist
o Rule 42 – Consolidation – Court may order a joint hearing or trial for any or all
matters on issues in the action
 (b) – Separate Trials – in furtherance of convenience or to avoid prejudice
the court may order separate trials or order a separate trial for any cross
claim, counterclaim, etc.
o Rule 14 – Third Party
 A defendant has right to file a third party action within 10 days of filing its
answer. Thereafter they must make a petition to the court and the court has
to use its discretion.
 Because there is no original jurisdiction over 3rd party defendant they have to
be subject to jurisdiction of court and properly served.
 2 requirements
 Third Party action must contend that 3rd party defendant is or may
be liable to original defendant
 Must rest on fact that if defendant is liable to original plaintiff, third
party will be liable to defendant
 Action does not need to be mature enough to bring a separate action
 Third party defendant has all rights of a normal defendant and can raise any
defense original defendant has against the original plaintiff

21
  You cannot sue 3rd party as a defendant just because you think plaintiff
should have sued him originally
 Line of liability running from original defendant to third party defendant and
not from third party defendant to original plaintiff
 Contribution or indemnification are often grounds for bringing third part action
 You are no required to bring 3rd party action you can wait, if you lose then
bring separate suit.
←
• What happens when diversity is destroyed by adding a third party?
o Owen Equipment and Erection v. Kroger
 Allowing supplemental jurisdiction in cases such as these would encourage
future plaintiffs to sue only those defendants who were diverse of citizenship
and then wait for the defendants to implead the others.
 Neither the convenience of the litigants nor the considerations of judicial
economy can suffice to justify extension of the doctrine of supplemental
jurisdiction to a plaintiffs cause of action against a citizen of the same state in
a diversity case.
←
← Indispensable Parties – Section 19
• In making a determination whether a case should be dismissed because of failure to join an
indispensable party
o 1. Must determine whether that person is someone who must be joined if feasible
 complete relief cannot be given between the existing parties because of
persons absence
 if they have an interest in the controversy and that interest may be prejudiced
if not included
 the existing parties may be subject to multiple obligations
o 2. If 1, is true, person must be joined unless it is not feasible to join them
 if they would destroy diversity jurisdiction
 if they would destroy personal jurisdiction
 if they object to proper venue
o 3. If it is not feasible to join then, ask whether the case should be dismissed because
of the parties actions or whether you should continue without them
 the prejudice of existing parties if not joined

22
  extent to which prejudice can be avoided by proper shaping of judgment
 whether judgment in their absence would be adequate
 whether plaintiff would be able to find an alternative forum
• Desire to prevent duplicate litigation is not enough to require a permissive but feasible party
tot be joined.
• A person does not become indispensable to an action to determine rights under a contract
simply because the person’s rights or obligations under an entirely separate contact will be
affected by the result of the action.

Intervention – Rule 24
• If you intervene you are a party and bound by res judicata
• 1) Intervention of Right
o When a statute gives you an unconditional right to intervene
o When you have an interest in the controversy and that interest:
 Will be adversely effected by the outcome of the controversy
 Existing parties might not adequately represent your interest
• 2) Permissive Intervention (lies in discretion of the court)
o Must have a claim or defense which has a common question of law or fact with that
being litigated
• A party may not be bound by a judgment rendered in an action in which he was not a party
even if he had knowledge of the action.
II. Pleadings – written statements of the parties
← Complaint- statement of plaintiff as to why defendant is guilty
• Two Types of Pleading
o A. Fact Pleading- plead the facts that constituted his cause of action (used in
Illinois State Civil Procedure rules)
o 1. figure out what your cause of action is – will determine your restrictions

23
  -look at the essential elements of the cause of action in the
substantive law. Prima facie case does not require the pleader to
negate affirmative defenses. Show which facts are needed to prove
the allegations.
o 2. Plead facts under a fact pleading jurisdiction that show that each element
in the prima facie case are present.
 A complaint to be proper must be legally and factually sufficient.
 All the elements and all the facts adding up to the elements are there.
o B. Notice Pleading- Federal Rule 8- rules for pleading in federal courts
o 1. short and plain statement of the ground’s upon which jurisdiction is based
o 2. Short and plain statement of the claim showing the pleader is entitled to
relief
o 3. a demand for judgment for relief the pleader seeks
 Look at forms provided in supplement to see how detailed you need
to be
 Don’t describe the cause of the action but rather the result
←
← Haddle v. Garrison
• The purpose of 1985 is not to protect property but to prevent intimidation people who are
going to testify on behalf of the government, there is not reason to insist on a vested const.
property right. At will employment is protected in other areas of law, because purpose of
statute is discourage intimidation, at will employment is a sufficient injury to your property to
constitute a violation of 1985.
• A demurrer will not be granted if there is a way to interpret the facts to constitute a cause of
action
←
← Answer to Complaint
First step: respond to complaint. Illinois- 30 days Federal- 20 or 60 days
1. can raise an objection that doesn’t have to do with facts/merits Rule 12 (b) motions –
will dismiss this cause of action at this time, can be brought against you again
• Rule 11- pleading, motion or document
• every pleading must be signed by one of the attorney who drafted it unless the client
is pleading pro se (without an attorney)

24
• Paragraph b – can be subject to sanctions if you sign a pleading without 1) having
made an investigation of the facts reasonable under the circumstances, 2) on basis
of investigation is supported by law and fact 3) if you are defendant any denials are
based on factual support or absence of knowledge on facts
• Paragraph c: sanction may be imposed either on party for violation of b. who signed
the document or the firm or the person responsible.
• Proceeding of sanctions for 11 b may be initiated by motion of the court itself – court
must identify what they believe the violation to be and file rule to show cause
• Can be initiated by opposing party specifying wherein the rule was violated it has to
be served after 21 days of allowing the party to withdraw the complaint. Attorney’s
fees may be awarded to party who wins motion.
• Sanctions are never to be more severe than to deter future violations:
• 1) non monetary
• 2) penalty to be paid to the court
• 3) payment to other side for the costs the other side has incurred because of the
violation of the rule
o Limitations: Client can never be held liable when the complaint is insufficient
in law, monetary sanctions cannot be awarded on courts initiative before
there is a voluntary dismissal of claims or settlement of claims

2. Defend case on merits –

a. Demurrer
 facts are true but challenges the legal sufficiency, motion to dismiss,
in federal courts any defense raised by a pre-answer motion may be
raised in the answer. Rule 12. If you don’t file a pre answer motion
you can raise it in an answer.
 judgment based on the pleadings, look solely at the pleadings and if
everything stated is true, is there a cause of action
o NON WAIVEABLE: Subject matter juris, failure to join indipensable party,
failure to state claim in which relief can be granted
o WAIVEABLE: the other four (improper service of process, improper process,
improper venue, personal jurisdiction failure) are waived if they are not
brought in pretrial motion or if you don’t file pre-trial motion, in the answer
 **Removal does not waive your right to object to personal jurisdiction

b. Traverse – denial of one of the essential allegations

25
 o Zielinski v. Philadelphia Piers, Inc.
 1. Any allegation of the plaintiffs complaint that is not denied by the
defendant stands admitted for purposes of the trial.
 2. If a denial is issued it must be a proper denial, which makes it clear
what you are denying and not denying. Can’t have a misleading
denial. Must specify which claims you are denying and which you
admit to be true. You may deny by saying you have no knowledge if
you don’t know if allegation is true or not.

c. Affirmative defense
o Layman v. Southwestern Bell Telephone Co.
 The defendant issued a general denial but then entered an easement
which is an affirmative defense into evidence. You cannot raise an
affirmative defense at trial you must plead it in your answer.
o If you plead an affirmative defense when it isn’t one, the defendant may have
the burden of proof at trial.

← Every defense shall be asserted in responsive pleading with exceptions in 12(b)—lack of

jurisdiction over subject matter, lack of jurisdiction over the person, improper venue, improper
process, improper service of process, failure to state a claim upon which relief can be granted,
failure to join an indespensible party CAN RAISE ANY OF THESE IN YOUR ANSWER
←
← Christian v. Mattell, Inc.
← The circuit court held that the lower court’s decision must be vacated because the
court’s conclusion on the Rule 11 motion could have been tainted by other misconduct by Hicks
not related to the motion and misconduct which cannot be sanctioned under Rule 11. The case
is remanded so the lower court can have an opportunity to delineate the factual and legal basis
for its sanctions orders. District Courts Rule 11 orders are vacated.
←
← Special Claims: Requiring and Forbidding Specificity in Pleading
← Stradford v. Zurich Insurance Co.
← Rule 9(b)- Fraud and mistake have to be pledged with particularity which require the
time, place, and nature of alleged misrepresentations be disclosed to the party accused of fraud
←
← Allocation of Burden
• All you have to do is plead the elements of your case in your complaint

26
 • Plaintiff only has burden of pleading elements of prima facie case, Defendant has to
prove affirmative defenses
• Whoever has the burden of pleading an item has the burden of proving that item at
trial.
• Whoever has burden of proof on a point must enter evidence on that matter first may
suffer a directed verdict unless sufficient evidence supports it.
←
← Court said a municipality may be liable but only if its their own policy or procedure
causes the violation and not that it was acting under a respondeat superior.
←
← Gomez v. Toledo
• Good faith is an affirmative defense and the plaintiffs failure to state this in his claim
was not grounds for dismissing the case. The good faith defense should be on the
defendant to allege and prove. There is no way to obligate the plaintiff to anticipate
such a defense and to do so would be contrary to analogous areas of law. That
knowledge is within the defendant.
←
←
← Reply
o Plaintiff response to defendant’s affirmative defense raised by the defendant.
o Like an answer, if you don’t deny facts in answer, they are taken as admitted.
o In federal law, you don’t have to reply to affirmative defense unless the court
tells you to
o If defendant raises a couterclaim, the plaintiff MUST reply to allegations
←
←
← Amendments
← - the more liberally the courts allow you to change your position the less critical it is if you
make a mistake in your pleadings.
← - trial and appellate courts are very liberal when it comes to amending pleadings
← Federal Rule 15 governs pleadings/amendments
o Leave to be freely allowed by court when justice so requires
o Given 20 days after pleading is served and no answer has been filed

← Beeck v. Aquaslide ‘N’ Dive Corp.

27
 • Amendments are liberally allowed but the court must weigh the prejudice to the
opposite side in allowing the amendment against the reasons why the plaintiff or
defendant made the amendment (negligence, bad faith?)
• Eve of trial amendments- very near the start of trial, court will most likely deny
because it will be too prejudicial under the circumstances but the court does have
discretion to allow it but will grant a continuance to the defense to prepare new
defense
←
← Statutes of Limitations and Relation Back of Amendments
← 15(c) 1) original complaint must be followed in a timely matter
2) new claim or defense must arise out of same conduct, transaction, occurrence (same
common nucleus of operative fact)
3) One thing you may not do as liberally is: add a new party as a defendant
4) In order to add a new defendant, in addition to conditions 1 & 2 you must satisfy two
more requirements:
o Defendant must have known about the suit before the limitation period
expired
o Defendant knew but for a mistake, he would be named a defendant in the
original case.
←
← Moore v. Baker
• The courts often look at whether the defendant was adequately informed in case #1
so that the issues raised in the amendment allows him to prepare his defenses and
preserve his evidence. The courts purpose is to protect the defendant.
←
Bonerb v. Richard J. Caron Foundation
Rule 15 states that leave to amend may be granted freely when justice requires. The
claims in the new and amended claims derive from the same nucleus of operative
facts.
III. Discovery
← 3 steps in Discovery Process
1. Disclosure – only has to disclose those issues which he will rely on in his form of his
case (ex: witnesses)
2. Broad discovery step – what is relevant and not privileged
3. apply to judge to narrow or broaden this to include relevant to subject matter of the
case and not just the issues

28
←
←
← Privilege
• Right against self incrimination: in a civil case, what may make you liable in a
criminal case.
• You waive your privilege once you begin talking about the positive aspects (for you)
of the topic
• Corporate attorney client privilege: In federal courts, the Upjohn case decided there
was a test for determining: any employee of the corporation may be protected if: 1)
they are talking to attorney because he are an employee 2) he is talking about how
they perform their corporate duties 3) the way he performed his duties is the matter
in litigation or the reason the attorney’s advise is being sought.
o In Illinois, only those employees high enough in the corporate ladder to
handle how the attorneys handle the case are considered privileged (control
group theory)
← Rules Governing the Scope of Discovery
←
• Davis v. Precoat Metals
• Rule #1: Anything that is relevant to the issues of the case and is not privileged,
should be discoverable.
o Relevance = Look to the pleadings as to what the issues in the case are and
then look at evidence you are trying to discover and ask if it will make one of
these issues more or less likely or lead to information that would, includes
matter that can lead to the evidence
o Can get judge to modify discovery request if it is repetitive or overly wasteful
or burdensome/excessive.
←
← Rules Particularized to Discovery and Methods of Discovery
←
A. Rules Governing Disclosures
o Rule 26(a)(1)
1. Must provide name and address of each individual likely to have
discoverable information to establish YOUR case unless solely for
impeachment, identifying the subjects of the information
2. Copies of all documents to support YOUR claims or defenses except
for

29
 3. For a plaintiff, a computation of claimed damages including the amount
of damages for each item you are receiving
4. For defendant, liability insurance coverage that pertains to the incident
o Solely for impeachment- is not used to prove any relevant issue of the case
but rather the credibility of the witness
o There is a 16(b) scheduling conference that will set a schedule when
everything is due (motions, start of trial, discovery info) is to be held within
120 days from the date the defendant is served with process or within
90 days in which the party appears in the case
o 21 days before the scheduling conference the attorney’s are supposed to
meet and work out a proposed schedule
o Disclosures are to be made at the conference or 14 days after
o Certain cases are excluded from automatic disclosures (26 (a)(1)(e):
 Habeas corpus cases
 Federal prisoners pro se action
 Other actions (see pg. 72 of supplement)
o Parties may not use other forms of discovery until after meeting required by
26(f) and required disclosures
o Normal sanction for not disclosing information is that you will be barred from
using that at trial
 Exception: if it is not harmful (if they learned about it through other
means) Rule 37 ©
←
B. Interrogatories (Rule 34)- a written question directed to another party, may only be
served by one party to another party part of the lawsuit
o After interrogatories are answered they are sworn in and notorized and
submitted to other side.
o If a question exceeds the bounds of discovery, you may object to it rather
than answer it.
o Should be specific and precise, but not too precise or you may not get the
answer you want.
o Advantage: can make person do a little bit of research into specific numbers
they would have to consult their books in order to answer
o Maximum for federal rules is 25 including subparts
 Illinois allows 30

30
C. Depositions (Rule 28, 30, 31, 32)- witness is interrogated by opposing counsel but
the scope of discovery governs what questions are being asked
o May be taken of ANY prospective witness
o Advantage of a deposition is its flexibility, can pin person down to be more
precise
o Disadvantages: expensive and time consuming
o Maximum is 10 depositions not exceeding 7 hours, no person may be
deposed twice without permission of the court or other side
 Illinois: no limit on number of depositions but time is limited to 3 hours
o If deponent is not a party, court has no jurisdiction over them, so you need to
serve them with a subpoena to make them show up
o Depositions on written ?’s may be used if you can’t ask an interrogatory but
they are in another state or country and you don’t want to depose them in
person (Rule 31)
o How do you take a deposition of a corporation?
 Serve them with notice according to 30(b)(6) and set forth the matters
to which you want them to testify. The corporation shall then send an
officer or employee with that knowledge to the deposition
 What happens if questioning is off topic? Make an objection on the
record and ask judge to stricken it from record at trial.
 If the matter is privileged you can tell the deponent not to
answer the question. If you do this the opposing party may
under rule 37 motion to make disclosures or cooperate
discovery. Rule 37- may be ordered to answer the question.
If you lose that motion you must pay opponents costs of the
motion including attorney’s fees, if you win, the other side will
have to pay cost of motion and attorney’s fees
 Before you make a 37a motion must include certification
that says you met with the parties and tried to work it out
before filing the motion

C. Production Requests (Rule 34)
o can only be directed to parties in a lawsuit
o non parties can be subpoened by rule 45
o Documentary evidence including computer documents
o Physical evidence (gun, car, etc. )

31
 o Problems with physical evidence
 Destructive testing- sometimes it may be allowed if the information
cannot be gotten in any other way, it will not compromise the evidence
o Specificity with which the request had to be made: specific enough so a judge
can know definitively whether a document falls within in the request (can be
made in categories, doesn’t have to name specific documents)
o Can be produced as kept or organized and labeled with each request
D. Physical Examinations (Rule 35)
o If a persons physical or mental status is at issue in a lawsuit, the opposing
party may have the patient examined by a doctor of their choosing
o If you put your condition at issue in the lawsuit, you are subject to
examination
o If you hire an expert in the case, if you are going to call a witness at trial you
will have to produce his report prior to trial. If you are not going to call him as
a witness, you do not have to submit that report
 Under Rule 35, if you ask for a copy of the opposing sides doctor
report, you have to submit all doctors reports even if you didn’t plan
on using all reports in trial
o Good cause requirement- it is not enough to require physical examination for
another person to challenge your mental or physical health, you must have a
good cause for them to be examined
E. Requests for Admissions (Rule 36)
o Not really discovery devices but designed for trial itself
o Normal discovery sanctions apply to requests for admission
o You may serve on the other side any time after original disclosures have
been made request that they admit certain facts for purposes of the trial.
 Once a request is served upon a party, they must either admit it (it is
admitted for purposes of the trial), object to it or deny it.
 If you refuse to admit it and it is later determined that you didn’t have
reasonable grounds to refuse to admit you will be charged costs and
attorneys fees caused by the refusal to admit. Designed to fill the void
caused by notice pleading.
 If you don’t respond within 30 days you admit it.
 Judicial admission- if you admit something in your pleadings or
through a request for admission. This fact is no longer at issue in the
lawsuit.

32
  Regular/Evidentiary admission- If you say something in your
testimony that can be construed as an admission, that is still an issue
in the lawsuit, the issue is still open and may be refuted. Does not
take the matter out of controversy in the lawsuit, merely goes as
evidence on that particular point.

Rule 26 (g)
o Similar to Rule 11, designed with respect to discovery
o The court may sanction the other side with attorney’s fees for failure to
comply with said rule
o
Rule 37 Failure to Make Disclosures
o b. Failure to Comply with Order
 May be held in contempt of court for failing to answer a question
o Severe sanctions you lose your case, your case is dismissed
o Sanctions may be imposed there must be a court order ordering you to reply
to discovery rules and you fail to comply with such an order.

May vacate taking of deposition by:

o Moving for protective order under 26 c
o Make for Motion under 26 b2
←
← 1. May object to production of materials he claims are privileged and then have other
party file a Rule 37 motion
← 2. Move for a protective order under Rule 26 c
• Under 26 c you are the moving party
←
← Protective Orders under Rule 26 (c)
• Before you move for 26 c you must have certification that you made good faith effort
to resolve issue
o To prevent: Annoyance, embarrassment, oppression or undue expense
o If party who thinks the discovery request would cause 1 of the four above
conditions has to make a motion for a protective order to be granted by the
discretion of the court (the court can rule one way or the other without being
reversed (sometimes reviewing court will reverse for abuse of discretion))

33
o In exercising the discretion the court is supposed to weigh the importance of
this information to the side that is seeking it against the annoyance,
embarrassment, etc. that it will cost the other side.
o Stalnaker v. Kmart Corp.
 Any sexual activities between the witnesses and Graves is relevant,
however, to the extent that they show his part to encourage, solicit, or
influence any employee of defendant to engage in such activities.
This information could still be embarrassing and so the parties shall
use this information only for this litigation and shall not disclose it to
anyone outside of this litigation.
o Discovery orders are not normally review-able because they cannot end a
case.
o When a magistrate judge (appointed judges, not an Article III judge and have
restrictions on what they can hear, may not hear dispositive motions (motions
that will end the case)) hears a motion you can always appeal the ruling to
the DISTRICT JUDGE not APPELLATE JUDGE. The District judge may
reverse only on a factual matter if it is clearly erroneous or contrary to law.
Must give some deference to magistrate judge.
o Hickman v. Taylor
 Lawyer’s “work product”
 An attempt to secure the written statements in the lawyers files and
mind must be accompanied with showing of necessity or indication
that denial of such production would unduly prejudice the preparation
of the petitioners case or cause him harm or injustice.
 In IL no showing of necessity is required
o Rule 26(b)(3)Recognized some limitation on discovery
 Work product- material obtained by one party in anticipation of
litigation
 Two types:
• Mental impressions or litigation plans of the attorney –
should never be discoverable
• The rest of the material prepared for litigation (does not
involve mental impressions) – discoverable if there it is
important to case and there is no other way to discover
it.

34
 o Not limited to an attorney, can be for any
material prepared in preparation or anticipation
of litigation. If it is used for normal business
then it is not work product and not protected.
o The names of witnesses is not protected but the
materials in preparation are
o Work Product privilege in Illinois
 Illinois Supreme Court Rule 201 (b) provides that the work product
privilege/protection only extends to the mental impressions or litigation
plans of the attorney only
 Absent corporate atty-client privilege Fortenbaugh would have
to turn over info under IL rules
o Expert Testimony: 26 a(2), 26 b(4)
 Subset of material obtained in preparation of litigation
 Certain disclosures have to be made from experts and the remainder
is governed by normal discovery rules
 You have to disclose the identity of any expert you are going to have
testify and in addition their qualifications, opinions , etc. You may take
deposition after getting the disclosures
 To be an expert you must be someone who is hired to testify in
preparation of litigation
 If the expert isn’t going to testify may only be discovered under two
circumstances:
 If you ask for other sides files about physical examinations you
would have to turn it over
 Work product provision – showing necessity, you can’t get info
any other way
 You have to pay expert his fees for submitting to examination
 If you try to discover another witness by the necessity
provision you don’t have to pay the other side
 Thompson v. The Haskell Co.
 Chiquita International Ltd. V. M/V Bolero Reefer
• Court in Chiquita said it’s not the other side’s fault you
didn’t examine the boat earlier, just because you didn’t
do it doesn’t mean you get the report of the other
witness.

35
• Thompson was distinguishable because there was no
way the defendant would have been able to examine
plaintiff at time she was first examined.

36
IV. Resolution Before Trial
←
← a. Pre-trial Dispositions
• Demur – Rule 12 (b)(6)
• Discovery Sanctions – Rule 26, 36, 37
• Dismissal for lack of jurisdiction of the court -1331, 1332
←
←
• Summary Judgments – Rule 56
o A motion when there is no genuine issue of material fact and the moving
party is entitled to ruling of law
 Genuine issue: whether reasonable people can differ in their opinions
o Go behind the pleadings and establish facts aren’t true
o The party seeking the summary judgment always bears the burden of proving
it (burden of production, may be shifted):
 By Affadavit:
 State facts admissible in evidence not opinions/conclusions
 Must affirmatively show that affiant could testify to these facts
at trial
 By Discovery:
 Documents, depositions, or interrogatories
• Should have affidavits authenticating the documents
 If materials are entered that if taken to be true show there is no
genuine issue of material fact then the burden shifts to the other side
to submit sufficient evidence that there is a genuine issue of material
fact (Bias v. Advantage International, Inc.)
o The test for determining whether there is a genuine issue of material fact is
the same as a directed verdict – if affidavits were testimony in court and you
would grant a directed verdict because of it you should grant summary
judgment. If you wouldn’t grant a directed verdict then you shouldn’t grant a
summary judgment.
o When a person’s intent is at issue, summary judgment is not appropriate
o Celotex Corp. v. Catrett
 There are two different ways to show your entitlement to summary
judgment:
 The strength of your case  can always do this

37
  RULE OF THE CASE: You can get a summary judgment on
the weakness of your opponents case if you can prove 3
conditions:
• The opponent must have the burden of proof at trial of
that issue in order to show the weakness of their case
• They had sufficient time for discovery on that issue
• Must have evidence that the other side can’t prove it

• Default Judgments – Rule 55

o Must wait at least 20 days from the time you serve the defendant (60 days if
personal service is waived)
o If your claim has liquidated amount you can ask clerk to enter default
judgment
o If non-liquidated judge must hold hearing to determine amount, if party has
previously appeared he must be given written notice 3 days prior to hearing.
No notice needed if party hasn’t appeared.
o Relief from Default Judgment or Order – Rule 60 – Bill of Review – 1 year
limit from when judgment is entered.
 You do not need to show a valid defense on the merits but you do
need to show excusable neglect
 In Illinois – 5-2-1401 – within 30 days
 2-1401 two year limit but requires both a valid defense on the
merits and excusable neglect
 Peralta v. Heights Medical Center
 If service of process wasn’t proper, no default judgment can be
entered
 In a bill of review it must be shown that the petitioner had a
meritorious defense to the action in which judgment was
entered, that the petitioner was prevented from proving his
defense by fraud, accident, or wrongful act of opposing party
and that there had been no fraud or negligence on the
petitioners part.
o

• Dismissal for want of Prosecution – Rule 41 (b)

38
 o Failure for plaintiff to take steps required to keep his case moving along
o On the merits, if its not set aside, you cannot re-file the case
 In Illinois you can re-file once as long as statute of limitations hasn’t
run and its within 1 year of dismissal
o Voluntary Dismissal – Rule 41(a)(1)
 Not dismissed on merits, you may re-file the case before statute of
limitations expires
 In federal courts you must voluntarily dismiss within or before
defendant answers or files a motion for summary judgment
 After the time has passed, you must get approval of the court or the
defendant to dismiss without prejudice
 In Illinois you can voluntarily dismiss anytime up to time of trial
or hearing begins.
 If there is a dispositive motion pending at the time the plaintiff
moves for voluntary dismissal, the trial court has discretion to
rule on the dispositive motion before granting the voluntary
dismissal
←
← b. Arbitration
• Advantages: cheaper, less time consuming, picks substantive law to decide, can pick
experienced decision makers, insure confidentiality, can create your own law to a
degree (base decision on prior dealings between two parties), can create own
procedural law
• Disadvantages: won’t get as much money as jury will award you, you may run into a
questionable arbitrator
• If you want to get out of arbitration you must find something wrong with the
arbitration from a contractual standpoint:
o Unconscionable
o Lack of consideration
 Floss v. Ryan’s Family Steakhouse
 Ryan’s steakhouse didn’t suffer any detriment because their
counterpromise was so vague they would not incur a cost or harm if
they failed to uphold their promise (illusory promise).

o Too one sided

o Too many remedies taken away

39
o The extent to which the decision to an arbitrator is subject to review in the
courts.
o There is very limited review of arbitration proceedings, courts do not review
the merits of the controversy, only the procedural fairness of the arbitrator or
if the arbitrator exceeded the powers given to him. (Ferguson v. Writers Guild
of America)

40
V. Civil Jury Trial
a. When do you have a right to a jury trial?
o In the federal courts the answer is found in the 7th amendment of the
constitution
 “In suits at common law, where the value in controversy shall exceed
$20, the right to trial by jury shall be preserved.”
 If the remedy you are seeking had its origin in the common law courts
you had a right to a jury trial, if it was from the court of equity
(chancery) you didn’t have the right.
 Common law remedies – trespass, replevin, trover, ejectment, debt,
covenant, assumpsit
 Equitable Remedies- injunctions, specific performance, rescission, pg.
548
 Amoco Oil Co. v. Torcomian
 In a case that contains both claims of law and claims of equity,
you are entitled to a jury trial on the issues of law and the
judge will hear the issues of equity.
 The 7th amendment is the only amendment that hasn’t been
granted due process in state courts. Therefore there is no
constitutional right to a jury in state court. Most states have
right to jury trial  States are free to interpret the right to jury
trial differently than the Federal courts
 Illinois still follows the clean up doctrine, therefore the plaintiff
has an option to plead the whole thing in one equitable count
with no right to a jury trial or they could divide it into two counts
-- one legal count and one equitable count with either side
having the right to demand a jury trial on the legal count
 Right to jury can be waived if you don’t follow the proper
procedure  file a jury demand within 10 days of the filing of
the last pleading that relates to the legal claim
 Remedies that were not in existence in 1791 pose a problem,
but generally if damages are sought you have a right to jury
trial. One of the few exceptions is Title VII civil rights action 
employment discrimination (reinstatement for back pay = no
right to jury trial, seek compensatory damages or punitive
damages you do have jury trial right)

41
b. Jury Selection
o 3 peremptory challenges (don’t have to give reason)
o Unlimited challenges for cause
o Jurors are selected randomly from voter registration and other lists
o Illinois requires 12 jurors, most of the time 8 is sufficient (including 2
alternates)
o Unanimous verdict required in federal courts
o Thompson v. Altheimer & Gray
 When a juror displays a possible bias the judge should follow up and
ask her whether she would follow his instructions on the law and
suspend judgment until she had heard all the evidence.
o McDonough v. Greenwood
 What if prospective juror answers voir dire falsely? You have to show
it was a dishonest answer and not misinterpretation of question and
you must show if they had answered truthfully it would be a clear
grounds challenge for cause.
o Evans v. Leesville- using you peremptory strikes in a way to get a biased
jury. Ex: Moving peremptorily to exclude certain races from jury. Must show
a racial or gender pattern of exclusion then the burden shifts to the other side
to explain their challenge on a racially neutral basis.

c. Trial
o Reid v. San Pedro, Los Angeles & Salt Lake Railroad
 The court ruled that the plaintiff held the burden to establish the
liability of the defendant by a preponderance of the evidence, if he
does not, a directed verdict should be entered against him.
o All we require in a civil case is for the jury to believe it is more likely than not
to occur (just over 50%).

o Burdens at Trial
 Burdens of Persuasion: carries with it the risk of losing if you cannot
persuade the jury that a fact you need to establish to win is more likely
than not true. Plaintiff normally has this burden.

42
  Summarized by an instruction of the jury: on every issue on
which this party has the burden of proof the jury must decide
for the other side if they think it is not more likely true than not
true.
 Only comes into play when the evidence is absolutely and
unequivocally true (in civil cases)
 Always stays with the party who had it originally.
 Defendant has burden of proof with regard to affirmative
defenses
 Burden of Production
 Can shift
 If evidence does not establish it is more likely true than not
true than the judge should direct a verdict against the plaintiff
and for the defendant because he hasn’t carried his burden of
production
 If the plaintiff carries his burden of production then it shifts to
the defendant to produce enough to cause reasonable people
to differ then it will go to the jury. If he puts in so much
evidence that no reasonable person could find against him
then the burden switches back to plaintiff.
 If at any point a party does not carry his or her burden of
production a verdict is directed against him.
 Leads to directed verdicts
 When a viewing all the evidence in favor of the person
opposing the matter the court should issue a directed verdict if
reasonable men could not differ on their opinion
 Notes on Page 586
• #5 Can you carry your burden of proof on mathematical
probabilities? No. you have to have some evidence
other than the probability.
c. Rule 50 (a), (b) Motion – Judgment as a Matter of Law
o Made by losing party
 1. Move for judgment notwithstanding the verdict or a new trial
 Appealable
 Judgment not withstanding the verdict is a declaration that
you won or get a new trial

43
  May only do so if you have moved for a directed verdict before
the jury began deliberating
• Must be made within 10 days of judgment
• Not true in Illinois
o In Illinois you have 30 days
 Must ask for judgment notwithstanding the verdict in trial court
before you can ask for one in the appellate court
• Also true in Illinois
 2. Move for new trial – within 10 days after judgment is entered in
federal court
 Not appealable because it does not end the case.
 if you don’t motion for new trial in IL you waive all the grounds
in your appeal you could have used in the new trial
• New trial means you retry the case
o Judge has to rule on both
 Because if on review an appellate court
sets aside jnov then the new trial order
can become operative
• May be made on two grounds
o 1. Procedural
 errors of law, you believe judge made
an error on admission or excluding of
evidence, on an instruction, etc.
 misconduct of a party or a counsel or
jury
o 2. Factual Agreement grounds
 more discretionary
 verdict is against the manifest weight of
the evidence
 damages awarded to plaintiff are
excessive or inadequate
 Excessive damages can be amended by
a remittitur
 Plaintiff may voluntarily take reduced
damages or risk the judge granting a
new trial,

44
  Approved by Supreme Court
 Additur – judgment is inadequate so if
defendant offers to pay more damages
judge won’t order a new trial.
 Supreme Court does not allow
o 3. Newly Discovered Evidence
 Must show:
 1. Evidence is so critical it would lead to
reverse judgment being entered
 2. You were not guilty of negligence in
not discovering it sooner.
o
o Pennsylvania Railroad v. Chamberlain
 When equal support is given to each inference in which even
neither can be established, judgment as matter of law must go
against the party who had the burden of production, in this case
Chamberlain. Furthermore, it is not allowable for a witness to resolve
doubt as to which equally justifiable inference shall be adopted which
if accepted will result in a purely gratuitous award for a plaintiff who
has failed to sustain the burden of proof.

o Lind v. Schenley Industries

 The trial court should view the verdict in the overall setting of the trial,
consider the character of the evidence and complexity or simplicity of
the legal principles which the jury is bound to apply to the facts and
abstain from interfering with the verdict unless it is quite clear the jury
has reached a seriously erroneous result.

d. After the Verdict

o Peterson v. Wilson

45
  Rule 606(b) prohibits a juror from testifying as to any matter or
statement occurring during the course of the jury’s deliberations or to
the effect of anything upon that or any other juror’s mind or emotions
as influencing the juror to ascent to or dissent from the verdict except
when extraneous prejudicial information was improperly brought to the
jury’s attention. The Supreme Court case Tanner v. United States
prohibited the admission of juror testimony to impeach a jury verdict.

o The Final Judgment Rule – Section 1291

 What is and what is not an appealable order?
 Liberty Mutual Insurance Co. v. Wetzel
• not an appealable order because the plaintiff did not
receive any of the relief sought in the complaint; it was
not a final judgment and not certifiable under 54 (b)
because there was only one claim.
 Rule 54 (b) says that in cases with multiple claims and multiple parties
in which the court enters judgment on one or more but fewer than all
the parties or claims, it may be certified and is considered final and
may not be changed. It may be appealed at that time only. If it is not
appealed at this time you cannot appeal it once the rest of the claims
are adjudicated.

 1292 (a) a judgment granting or suspending an injunction even though

it is not final in anyway. This includes preliminary (temporary)
injunctions.
 1292 (b) allows a district judge when issuing a non appealable order
but one that involves such a question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination
of the litigation he may state this in his order and the Court of Appeals
may in its discretion permit an appeal if made within 10 days after the
order provided.
 Writ of mandamus – not technically an appeal, but a request for an
order to a hire court to compel the trial court judge to take some
particular form of action in the case. Totally discretionary up to the
reviewing court.

46
e. Scope of Review
o Anderson v. Bessemer City
 Rule 52(a) governs appellate review. It states, “findings of fact shall
not be set aside unless clearly erroneous and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake had been
committed.
o Harmless Error
 2111 – Appellate courts cannot reverse for errors or defects which do
not affect the substantial trial rights of the parties.

47
Res Judicata 22/08/2007
21:04:00
VI. Doctrine of Res Judicata/Preclusion Doctrines
• Must have 2 different suits between the same parties (there are exceptions)
o Rush v. City of Maple Heights
o issues concerning injuries to both persons and property, recovery or denial of
recovery of damages in one claim does not preclude recovery in another,
unless by an adverse judgment in the first action issues are determined
against the plaintiff which operate as an estoppel against him in the second
action.
o Rule of Restatement of the Judgment Second-- The trend of the decisions
today is to hold all claims arising from the same transaction or occurrence are
considered the same cause of action.
o
• The first one has been decided on the merits and now you are asking what is the
impact of case #1 on case #2
←
←
a. Claim Preclusion (also known as res judicata)
o Only may be used as defense (by defendant to shield himself from future
litigation on the same matter)
o Includes everything that was raised or might have been raised in the first
cause of action
o Applies whether you win or lose the first case
o Once a cause of action is determined by a court of competent jurisdiction it
may not be re-litigated
 1. Deals with same cause of action
 All claims arising from the same transaction or series of
transactions are considered the same cause of action
 Excluded are causes of action that could not be brought at the
time of the original action
 2. Decided by court of competent jurisdication on the merits
 Gargallo v. Merrill Lynch
• What does it mean to be on the merits?
 • According to the full faith and credit clause of the US
constitution, the federal court must determine whether
to give claim preclusion effect to a state court judgment
upon a cause of action over which the state court had
no subj matt jurisdiction by determining whether the
state court would give preclusive effect to such a
judgment.
• It cannot be res judicata if the court did not have proper
jurisdiction to decide the case in the first place.
 3. Be between the same parties or their privities
 Martino v. McDonalds
 This case raises the issue of does claim preclusion have a
possible impact for the defendant in the first case? A plaintiff
in case number 2 can be bound by the ruling of case number 1
(if he is defendant in case number 1)
• 1. Operation of compulsory counterclaim rule – claims
in federal courts that must be brought or thereafter
barred. Supplemental jurisdiction applies to claims
arising out of same transaction. If defendant does not
make compulsory counterclaim in first case, he is
barred from bringing it as a cause of action
• 2. It cannot be inconsistent with the result of case #1.
If the plaintiff in case number 2 winning would nullify
the rights determined by the court in the first case it
should not be heard. Case #1 enforced the selling of
the franchise, for the plaintiff to win case #2 the court
would have to rule contrary to the result reached in
case #1 and would nullify the rights established in case
#1.
  Richards v. Jefferson County – claim preclusion includes not
only what was decided but what might have been decided but
it must be between the same parties. Two entirely different
sets of plaintiffs brought the suits. They were not in privity.
Claim preclusion was not applicable. It is a violation of due
process of law to enforce a judgment in a prior case on res
judicata grounds against a party who was not a party in the
first case or in proper privity.
• When is there possibility of privity?
o Successive owners in property
o A person and his estate
o Trustee and beneficiary
o Executor of an estate and the heirs
o Co-owners, joint ownership, vicarious liability
o Guardians ad litem
←
b. Issue Preclusion (collateral estoppel)
o May be used as an offense or defense (affirmatively by a plaintiff or by
defendant)
 Offensive Collateral Estoppel
 Parklane Hosiery Co. v. Shore
 It is argued that such offensive conduct use will not promote
judicial economy bc the plaintiffs can await a ruling in another
matter without intervening, and then be relieved of making
proofs if the issue is resolved to their satisfaction, but not be
foreclosed from raising it again if it is not. It is not unfair to use
collateral estopel against defendants who had a full and fair
opportunity to litigate its claims. Under the 7th amendment you
would have the right to a jury trial if you would have when the
Constitution was written. Mutuality doesn’t apply in issue
preclusion anymore. All that is necessary for issue preclusion
is that the party against whom you are trying to use the
judgment of the first case must have been a party in the first
case and had a chance to litigate the issue in the first case.
o Only applies to issues necessarily decided in the first case.
 Illinois Central Gulf Railroad v. Parks
  In order to be able to establish issue preclusion you have to be
able to show that the court did actually decide the issue and
the way they decided it.
• 1. Show that the decision that was rendered could not
have been rendered unless the issue was decided in
that particular way.
• 2. Have some other evidence to that fact.
o Request a special interrogatory from jury
• If you are dealing with different claims or causes of action but the two of them
contain a common issue, once that issue is determined by a court of competent
jurisdiction you are precluded from reaching a different result on that issue
o 1. Different cause of action (some exceptions)
o 2. Identical factual issues
o Have been decided by a court of competent jurisdiction on the merits
←
• The Reopened Judgment as an Alternative to the Collateral Attack
o Rule 60 (b)
o You can never use 60 (b) or the Illinois Equivalent (2-1401) as a substitute to appeal.
It only applies to something you can’t appeal (newly discovered evidence, fraud,
perjury on the stand) but it must be done within the time limit specified (1 year) or if it
isn’t you must be able to show a grave miscarriage of justice occurred and bring forth
an independent action. Most of 60 (b) must be tied to actions of an adverse party.
o Illinois has 2 year statute of limitation period on Federal Rule 60 (b) equivalent
 Statute of Limitations in Illinois
 5 years – oral contract, property dispute
 10 years – written contract
 1 year -- defamation
2 year – medical malpractice, personal injuries