Pleading

Rule 8(a) Policy: The system of notice pleading seeks to balance, on the one hand, the plaintiffs interest in bringing a dispute before the attention of a court with, on the other hand, the defendants right to fair notice of the claims against her and a societal interest in conserving our limited judicial resources. Though more liberal than the fact-pleading regime that it succeeded, notice pleading nonetheless requires that complaints meet a certain threshold in order to survive a motion to dismiss. Ms. Patts complaint does not reach this threshold, which is why it should be dismissed. Liberal Standard Pro: o There are other legal mechanisms in place to conserve the valuable resources of the judicial system, including most notably liberal discovery rules and the motion for summary judgment. Fed. R. Civ. P. 26-37, 56. These tools help resolve disputed issues and uncover the weaknesses of non-meritorious claims. F.R.C.P. Rule 8(a): require that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a): see Conley v. Gibson, (1957); Iqbal, (2009). Refinements o Conley v. Gibson (1957) A complaint need only give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests o Swierkiewicz v. Sorema (2002) A court must assume all facts pled in a complaint to be true and must view the complaint in die light most favorable to the plaintiff. o Bell Atlantic v. Twombly (2007) labels and conclusions or a formulaic recitation of the elements of a cause of action are not sufficient. This rule [Rule 8(a)] does not oblige a plaintiff to plead detailed factual allegations. F.R.C.P. Rule 9 Fraud: heightened pleading standard (Tellabs, PSLRA) Motion to Dismiss Rule 12(b)(6) A motion to dismiss should be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 1 2(b)(6). A complaint must state sufficient factual matter that, if accepted as true, would render the claim plausible on its face. Iqbal

Exam Tip: Applying 12(b)(6): o Legal standard = a + b + c o Apply rule with our facts o See if the application is plausible

Personal Jurisdiction

Policy: The F.R.C.P. do not create jurisdiction over a defendant. A court may not impose obligations or restrict the rights of a party over whom it does not have personal jurisdiction without depriving that party of its constitutional right to due process of law. Pennoyer v. Neff (1878); International Shoe Co. v. Washington (1945); Shaffer v. Heitner (1977). International Shoe Rule o General approach: The standard is neither mechanical [n]or quantitative but instead looks to the quality and nature of the activity in relation to the fair and orderly administration of the laws. o Two part test: First, a defendant must have engaged in a sufficient level of intentional purposeful contact with the forum state. Burger King Corp. v. Rudzewicz (1985); International Shoe (1945). When a defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, it engages in contact sufficient to subject itself to the jurisdiction of that state. Hanson v. Denckla (1958). First, Schaffers impact was to preclude an automatic finding of jurisdiction based on property within a state, and instead require a full inquiry under the test developed in International Shoe v. Washingtona test that requires both sufficient contact with the forum state and a finding that jurisdiction would not be unfair. Shaffer Example: Profiting from sale of shoes in Washington was sufficient contact. Second, the exercise of personal jurisdiction must not offend traditional notions of fair play and substantial justice. Id. Balancing Factors (Burger King Corp.): Burden on the defendant Interest of the forum states in adjudicating the dispute. Plaintiff's interest in a convenient and effective resolution of the case Interest of the several states to have an effective judicial resolution system.

Sample Answer Language: o The rule articulated in Pennoyer v. Neff was displaced in the nineteen-forties because jurisdiction was easily evaded by corporations exploiting technicalities in an overly rigid framework. International Shoe, 326 U.S. at 318-19. The old rule was replaced by a more flexible standard, intended to better reflect the actual effects of interstate transactions. Id. The standard is neither mechanical [n]or quantitative but instead looks to the quality and nature of the activity in relation to the fair and orderly administration of the laws. Id. at 319.

The current inquiry into whether a court has personal jurisdiction over a defendant comprises two parts. First, a defendant must have engaged in a sufficient level of intentional purposeful contact with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985); International Shoe, 326 U.S. at 316. Second, the exercise of personal jurisdiction must not offend traditional notions of fair play and substantial justice. Id. These two requirements must be satisfied in order for a court to have personal jurisdiction over a defendant, even if the defendant owns property in the forum state. Shaffer, 433 U.S. at 212.

Introduction to the Federal Rules of Civil Procedure (FRCP) FRCP Rules 1, 2 & 3. o just, speedy, and inexpensive o only one form of action: civil action o civil action commenced by filing a complaint

Pleading

Notice Pleading (also known as Rule Pleading) compared with Fact Pleading (also known as Code Pleading). FRCP Rules 7 & 8 (a) Pleadings. o Only these pleadings are allowed: (1) a complaint; (2) an answer to a

complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. o (b) Motions and Other Papers (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.
o (a) Claims for Relief.

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials. Assert its defenses to each claim in short and plain terms Must admit or deny every allegation If a party intends to deny only a part of allegation, then it must admit the part that is true and deny the rest If you lack knowledge or info to form a belief, then state it and the statement has the effect of denial. If a party doesnt address an allegation and it is required, then it is admitted. If it is not required, then it is considered denied. o (c) List of defenses available: estoppel, duress, fraud, illegality, res judicata, statute of limitations, waiver o (d) May set out claim or defense alternatively or hypothetically. Alternate statements are sufficient if any one of them is sufficient. May state as many separate claims or defenses as it has, regardless of consistency.
Casebook pp 585-586, 606-617 o Swierkiewicz v. Sorema, N.A. o Conley v. Gibson

Heightened pleading and disfavored claims. FRCP Rule 9(b).

o In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

Casebook 644-660 o Tellabs Must allege state of mind with particularity. Notice pleading re-visited Twombly & Iqbal Casebook 617-633
o

Bell Atlantic Corp. v. Twombly Do not need detailed factual allegations, but enough factual matter to show that an agreement was made (antitrust) or that discovery will reveal evidence of illegal agreement. pleading must be plausible on its face claims must cross the line from conceivable to plausible cannot be labels and conclusions or a formulaic recitation of the elements of a cause of action Ashcroft v. Iqbal Well-pleaded facts must go beyond a mere possibility of misconduct Determining whether complaint states a plausible claim is contextspecific task Cannot plead legal conclusions

Ethical constraints on pleading FRCP Rule 11

o o o

(a) Every pleading, motion or other paper must be signed

(b) signature is treated as certifying document has certain attributes (c) those attributes are Reasonable investigation To the best of signers knowledge, information, and belief the document meets minimum standards of factual merit, legal merit, and lack of improper purpose (d) sanctions Only lawyer can be sanctioned, not the client

o o

Casebook 661-670, 678-684 o McCormick v. Kopmann (1959) Inconsistent pleadings are valid, even if mutually exclusive. Motions challenging the complaint FRCP Rule 12 (b-f) o Motion to dismiss 12(b) Disfavored (2-5) List of defenses (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. o Motion for a more definite statement 12(e) Casebook 684-685 o Discussion of defenses that D can raise.

Subject Matter Jurisdiction

Constitutional Authority Statutory Authority Test

Federal Question Art. III, sec. 2

Diversity Art. III, sec. 2

28 U.S.C. 1331 -Creation test: federal statute creates the right of action (Holmes); see Mottley -meaning and application test: substantial federal issue (Cardozo); see Grable

Supplemental Art. III, sec. 2: Brennan interprets case to mean related to the same claim: common nucleus of operative fact. 28 U.S.C. 1332 28 U.S.C. 1367 passed in 1990. Combined pendent and ancillary jurisdiction. -parties diverse (domicile -FQJ + common nucleus of last place of residence operative fact where there was intent to -Diversity + common nucleus of return; BUT can also look to operative fact EXCEPT when a P see if there is significant brings in parties under FRCP 14, 19, new settlement. 20 and 24 AND doesnt meet 1332 Corporations: where they requirements. are incorporated AND (rationale: prevents P from playing principle place of around with the system and suing businessnerve center someone just in order to get to test: the corporate someone else.) headquarters or home office -Supplemental jurisdiction is from which its activities are discretionary: judge doesnt have to coordinated. take it if: not efficient, fair and Associations: wherever they convenient to litigants; the state have members.) Magic date claims predominate; it is a novel or for determining diversity: complex issue of state law; the the date of filing suit. federal claim is dropped; or other -amount in controversy > exceptional circumstances. $75,000 -complete diversity (Strawbridge) -aggregation of claims: P may generally aggregate all claims, even if unrelated, to meet $75,000 threshold. Multiple Ps can aggregate if the claims are not severable OR if at least one claim meets the standard. CANNOT if no P has a claim over the jurisdictional amount.

Cases

Grable & Sons: meaning and application test. State law issue that turns on substantial question of federal law. Mottley: claim created by state K law (so no creationist.) In a wellpleaded complaint there would have been no federal statute or issue brought up, therefore no SMJ. Well-pleaded complaint: you get into court on claims you bring, not on anticipated defenses. SMJ based on claims P is bringing in the complaint. Exception: federal preemption.

Mas v. Perry: amount in controversy: the claim in good faith must be above $75,000. Not met only where the judge concludes to a legal certainty that the plaintiff could only be awarded less than the amount in controversy requirement.

United Mine Workers of America: common nucleus of operative fact. Owen: if jurisdiction is based on diversity alone, cannot add a supplemental claim against a new D that destroys diversity. Exxon Mobil Corp.: once one P meets the $75,000, and all Ps meet the diversity requirement, you can add additional Ps.

The subject matter jurisdiction of the federal courts: federal question jurisdiction and the well pleaded complaint rule. Mottley FRCP Rule 12(b)(1) (1) lack of subject-matter jurisdiction; 28 USC 1331 o The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Arising under in USC 1331 v. Article III. Casebook 371-379 o Louisville & Nashville RR. Co. v. Mottley (1908) Well-pleaded complaint rule: Plaintiff does not get federal jurisdiction because they believe Defendant will use a federal defense. Federal question jurisdiction continued. Can a state-created claim state a federal question, thus establishing federal subject matter jurisdiction? Grable FRCP Rule 12(b)(1) o Lack of Subject matter jurisdiction 28 USC 1331 Casebook 389-397 o Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing (2005)

Federal Question arising out of a state law claim. Federal court can only have jurisdiction over the state law claim if raises or implies serious federal issues and does not step on congressionally defined boundaries between state and federal court. Diversity jurisdiction. Mas v. Perry FRCP Rule 12(b)(1): lack of Subject matter jurisdiction 28 USC 1332 (a-c): over 75K and citizens of different states o (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. o For the purposes of this section, section 1335, and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. o (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. o (c) For the purposes of this section and section 1441 of this title (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be

deemed to be a citizen only of the same State as the infant or incompetent. Casebook 397-409 th o Mas v. Perry (5 Cir. 1974) For diversity SMJ, all Ps state citizenships must be different than all Ds state citizenships under 1332. a) Citizenship is defined by where a party is: permanently domiciled, and has the intention of returning whenever he is absent therefrom b) Domicile change Taking up residence in a different domicile with The intention to remain in the new domicile

The subject matter jurisdiction of the federal courts: Pendant jurisdiction (jurisdiction over a state law claim based on its relationship to a claim over which the court is exercising original federal question jurisdiction). UMW v. Gibbs FRCP Rule 12(b)(1): Lack of subject matter jurisdiction Casebook 409-420 UMW v. Gibbs o State law claims can be attached to federal claims if they share the same common nucleus of operative fact Advocacy Exercise 3 is due today. On behalf of Plaintiff Paula Patt, complete the opposition to Defendants motion to dismiss. The subject matter jurisdiction of the federal courts: Supplemental jurisdiction (jurisdiction over a state law claim based on its relationship to a claim over which the court is exercising original jurisdiction). Exxon Mobile FRCP Rule 12(b)(1): lack of subject matter jurisdiction 28 USC 1367 (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, 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 or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs

under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if o (1) the claim raises a novel or complex issue of State law, o (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, o (3) the district court has dismissed all claims over which it has original jurisdiction, or o (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Casebook 420-436 Exxon Mobil Corp. v. Allapattah Services, Inc. [only need one P to meet amount in controversy requirements] o In a diversity case, if one plaintiff meets the amount in controversy requirement (>75K), then other plaintiffs can join under rule 20(a)(1) even if they do not meet the amount in controversy requirement. The joined plaintiffs have subject matter jurisdiction from supplemental jurisdiction conferred by 1367(a) because their claims arose from the same case or controversy. The subject matter jurisdiction of the federal courts: Removal jurisdiction (jurisdiction over a case filed in state court when removed by the defendant(s) to federal court). Caterpillar FRCP Rule 12(b)(1): lack of subject matter jurisdiction 28 USC 1441 (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. Casebook 437-447

Caterpillar v. Williams (SCOTUS 1987) o Removal is proper only if plaintiff could have filed the suit in federal court in the first place. o Federal defenses cannot be the basis for removal. Defendants can only remove to federal court if plaintiff asserts federal rights. Well-pleaded complaint rule applies to removal by defendants just like it applies to initially filing a claim by plaintiffs.

Personal Jurisdiction
Personal (territorial) Jurisdiction: Pennoyer v. Neff and the Constitutional limits on the reach of the state courts. FRCP Rule 12(b)(2): Lack of personal jurisdiction Casebook 158-171 Pennoyer v. Neff Advocacy exercise 4 is due today. Complete the memo in support of the motion by Plaintiff to amend her complaint to add a supplemental state law claim under California law for discrimination based on marital status. Personal (territorial) Jurisdiction: Pennoyer v. Neff reconsidered, International Shoe v. Washington. FRCP Rule 12(b)(2) Casebook 176-189 International Shoe v. Washington o Rejects negative holding of Pennoyer for corporations o Personal jurisdiction available if: Minimum contacts Fair and substantial justice Personal (territorial) Jurisdiction: International Shoe applied; World-Wide Volkswagen & Goodyear Dunlop Tires v. Brown (U.S. Supreme Court case 10-76 decision issued June 27, 2011) FRCP Rule 12(b)(2) Casebook 189-201; Goodyear decision will be posted on B-Space. World-wide Volkswagen o Purposeful availment to the benefits of the forum state. Hanson v. Denckla: when a corporation avails itself of the privilege of conducting business within the forum state, it has clear notice that it is subject to suit there. unilateral activity of those who claim some relationship with the nonresident defendant cannot satisfy requirement of contact with the forum state World wide did not sell cars to OK citizens so it did not purposefully avail itself of the privileges of doing business in that state and minimum contacts are not

satisfied by customer taking their product to forum state. o Foreseeability that the car would travel there is not enough for minimum contacts. Goodyear Dunlop Tires v. Brown o Stream of commerce does not confer specific jurisdiction o Mere purchases at regular intervals does not confer general jurisdiction.

Personal (territorial) Jurisdiction: International Shoe reformulated I; Burger King FRCP Rule 12(b)(2) Casebook 209-225 Burger King v. Rudziewicz o Personal (territorial) Jurisdiction: International Shoe reformulated II; Asahi & excerpts from J. McIntyre Machinery, Ltd v. Nicastro (U.S. Supreme Court case 091343 decision issued June 27, 2011). FRCP Rule 12(b)(2) Casebook 225-242; Nicastro decision will be posted on B-Space. Asahi J. McIntyre Machinery, Ltd v. Nicastro Personal (territorial) Jurisdiction: Pennoyer re-applied; Shaffer v. Heitner FRCP Rule 12(b)(2) Casebook 265-281 Shaffer v. Heitner Personal (territorial) Jurisdiction: Shaffer reconsidered; Burnham v. Superior Court FRCP Rule 12(b)(2) Casebook 281-296 Personal (territorial) Jurisdiction: Pennoyer reapplied; consent by contract FRCP Rule 12(b)(2) Casebook 327-341 Carnival Cruise Lines, Inc. v. Shute Advocacy exercise 5 is due today. Complete the memo in support of the motion by Defendant Carl Cowen to dismiss for lack of personal jurisdiction. Personal (territorial) Jurisdiction: Pennoyer concluded; personal jurisdiction by waiver; limited appearance rule FRCP Rule 12(b)(2) Casebook 341-352 Insurance Corp. of Ireland, Ltd. V. Compagnie Des Bauxites De Guinee (US 1982)

Venue and Transfer

Venue and transfer of venue FRCP Rule 12(b)(3) 28 USC 1391 (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. (c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. (d) An alien may be sued in any district. 28 USC Section1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer. (c) A district court may order any civil action to be tried at any place within the division in which it is pending. (d) As used in this section, the term district court includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term district includes the territorial jurisdiction of each such court. Casebook 449-472 Ferens v. John Deere Co. (1990) Change of courtrooms, not rules

Plaintiffs can use change of venue just like defendants The common law alternative to 1404; forum non conveniens Piper Aircraft FRCP Rule 12(b)(3) Casebook 472-486

Notice and Process

Wednesday 10/5 Notice and service of process Mullane FRCP Rules 12(b)(4) and 12(b)(5) Casebook 296-308 Friday 10/7 Notice and service of process Jones v. Flowers FRCP Rules 12(b)(4) and 12(b)(5), Casebook 308-327 Tuesday 10/11 Answering the complaint Zielinski FRCP Rules 8(b) and 8[c) (b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) DenialsResponding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleadingincluding the jurisdictional groundsmay do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegationother than one relating to the amount of damages is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches;license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. Casebook 686-694 Zielinski v. Philadelphia Piers, Inc. D denied all claims, but only wanted to deny 2/3. If you use a general denial, then you cannot change it later if you knew that one of the three were true. Otherwise, court will impose sanctions like liability for equipment failure that you did not own but merely operated and maintained. Wednesday 10/12 Amending the pleadings Worthington FRCP Rule 15, relation back Casebook 694-706 Krupski v. Costa Crociere, 130 S. Ct. 2485 (decided June 7, 2010) An edited version of this decision will be found on B-Space.

Joinder Parties/Claims, Impleader, Intervention

Joinder of claims FRCP Rules 18(a), 13(a), 13(b) and 13(g) Rule 18(a) Joinder of Claims o A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. If you have a proper claim which arises from same transaction or occurrence, then you can add independent claims (as long as they have separate jurisdiction support). Rule 13(a) Compulsory Counterclaim o A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

Casebook 707-728 Jones v. Ford Motor Credit Company (2d Cir. 2004) o Facts: Jones bought Ford vehicles with Fords credit financing plan. Alleged discrimination against African-Americans under federal law. Ford Credit denied discrimination and counterclaimed under state law for the amounts of their unpaid loans. o Holding: Permissive counterclaims also have supplemental jurisdiction. o Reasoning: Same transaction or occurrence (rule 13(b) language) is narrower than same case or controversy/same constitutional case (Gibbs/1367 supplemental jurisdiction/Article III language). CNOOF is broader than same transaction or occurrence. We want to give Ds more leeway in deciding whether they want to bring counterclaims, so we reduce the amount of cases required under 13(a) and extend jurisdiction to 13(b) that do not have independent jurisdiction

Fairview Park Excavating Co. v. Al Monzo Construction Co. o Facts: Fairview sues Al Monzo and Township as joined defendants under diversity jurisdiction for not paying it. Al monzo crossclaims against Township. Township counterclaims. Township moves for dismissal of Fairviews claims and wins, so it is only related because of cross claim and counterclaim to Al Monzo. Lower court judge decides that because the claim which conferred jurisdiction has been settled, the cross claim lacks jurisdiction. Higher court reverses. o Holding: A crossclaim retains supplemental jursdiction even if the primary claim has been dismissed on the merits. If the primary claim was dismissed on jurisdiction grounds, then the supplemental claims would be dismissed as well. o Reasoning: If we get rid of crossclaims every time the primary claim is dismissed on non-jurisdictional grounds, then we destroy properly maintainable claims by way of supplementary jursidiction. It is an elementary principle that jurisdiction which has once attached is not lost by subsequent events.

If jurisdiction was never proper, then it should be removed, but that is not the case here.

FRCP Rule 20(a) Permissive joinder of parties Persons Who May Join or Be Joined. o Plaintiffs. Persons may join in one action as plaintiffs if: they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all plaintiffs will arise in the action.

o Defendants. Persons as well as a vessel, cargo, or other property subject to admiralty process in rem may be joined in one action as defendants if: any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all defendants will arise in the action. Casebook 728-743 Kedra v. City of Philadelphia (E.D. Penn. 1978) o Facts: Police violently harass plaintiffs over a period of 14 to 15 months. Different police officers committed various crimes at various times, never all officers at once, but police chief knew about attacks. Plaintiffs bring suit under federal law (Section 1983 Civil Rights law). Plaintiffs try to join defendants into one party under Rule 20(a)(2). Defendants argue that there was no same transaction or occurrence between the various police officers because the acts went on for months. o Holding: Months of harassment and abuse can count as same transaction or series of transactions or occurrences. o Reasoning: Same transaction or occurrence should be interpreted liberally.

Impleader FRCP Rule 14 (a) When a Defending Party May Bring in a Third Party. (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer. (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaintthe third-party defendant: (A) must assert any defense against the third-party plaintiff's claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. (3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the thirdparty defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it. (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a thirdparty complaint may be in rem. In that event, a reference in this rule to the summons includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested. (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

Casebook 755-765 Banks v. City of Emeryville Facts: Holding: Reasoning:

Intervention by non-parties FRCP Rule 24 Casebook 765-766, 776-783

Discovery
Discovery I -- Discovery methods FRCP Rules 26, 30, 32, 33, 34, 35, and 37 Casebook 882-889, 901-907 Observe deposition of Paula Patt Discovery II Discovery protective orders, motions to compel, and sanctions FRCP Rules 26(c), 37 Casebook 946-958, 976-979 Discovery III Discovery Privileges and Immunities FRCP Rule 26(b)(3 and 5)

Class Action
Class action overview FRCP Rule 23 Casebook 794-813 Class actions Wal-Mart and beyond Casebook 821-824, 860-863 Wal-Mart Stores, Inc. v. Dukes (U.S. Supreme Court No. 10-277, decided June 20, 2011) (on B-Space)

Summary Judgment
Summary Judgment I Adickes; Celotex FRCP Rule 56 Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) Procedures. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another partys assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials including the facts considered undisputed show that the movant is entitled to it; or (4) issue any other appropriate order. (f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party;or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute Casebook 980-1006 Adickes v. S.H. Kress & Co. (1970) o D must positively prove that P has holes in its theory. Celotex Corp. v. Catrett (1986) o Poking holes in Ps theory is enough. P needs to show more than mere pleadings that it has the evidence to prove its case. Summary Judgment II Scott v. Harris FRCP Rule 56 Casebook 1011-1030

Right to a Jury
Constitutional Right to Civil Jury Beacon Theaters; Dairy Queen United States Constitution, Amendment VII Casebook 1057-1065, 1069-1082 If two claims arise out of dispute, then try the legal one first to preserve right to a jury and then the equity dispute. To determine whether claim is legal or equitable, look to similar actions in common law of 1791. Look to remedies that are being requested. Illusory pleading cannot hide underlying nature of request. Jury selection and instruction Edmonson FRCP Rule 51 1121-1122, 1136-1146, 1175-1179 Edmondson v. Leesville Concrete Co., (1991) p.1136

o Peremptory challenges can be for no cause, but they cannot be for bad cause (e.g., race). Judgment as a Matter of Law (JML) I Directed Verdict and JNOV FRCP Rule 50 Casebook 1162-1171 Standard of JMOL before verdict same as after verdict: summary judgment: lack of substantial evidence provided by plaintiff in support of each element of their case; Judgment as a Matter of Law (JML) II JNOV and New Trial FRCP Rule 50 Casebook 1179-1181, 1189-1196 JNOV standard: summary judgment: lack of substantial evidence provided by plaintiff in support of each element of their case; New trial Judge may order new trial sua sponte without request from either party. Weigh the evidence. If great weight of the evidence (more than preponderance) is against the verdict, then order a new trial. New Trial and Conditional New Trial Casebook 1194-1196 (re-read), 1196-1205 Conditional new trial o Remittitur (reduction of award or lose)

Preclusion: Res Judicata and Collateral Estoppel

Preclusion I Casebook 1223-1242

Preclusion II Collateral Estoppel: A judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but "only if:" o the issues in both proceedings are identical, o the issue in the prior proceeding was actually litigated and actually decided, actually litigated: a) the parties are genuinely adverse on this issue, and b) that evidence on the issue was presented to the court. c) If a party concedes an issue, then it has not been litigated. (Troutt v. Colorado Western Insurance Co.; states finding

was based on admission of liability by D, which does not preclude the issue) actually decided:. a) Compromises sometimes do not bar relitigation because they are not the result of antagonistic parties. o there was full and fair opportunity to litigate in the prior proceeding, and o the issue previously litigated was necessary to support a valid and final judgment on the merits. Purposes: efficiency (no need to waste court resources twice) and consistency (courts/juries wont issue conflicting rulings on the same issue)

Preclusion III Parklane Casebook 1279-1296

Choice of Law and Erie Doctrine

Choice of Law I Swift v. Tyson Rules of Decision Act (RDA) -- 28 USC 1652 Rules Enabling Act (REA) 28 USC 2072 Casebook 487-493 Choice of Law II Erie Rules Enabling Act (REA) 28 USC 2072 Casebook 493-503 Erie R.R. v. Tompkins o Trespasser cannot recover under Philadelphia common law but can recover under federal common law. Creates forum shopping between federal courts and state courts for substantive law, which is untenable. o The federal courts will use the substantive law of the state where the court is placed. o Doctrine: The same transaction by a non-resident litigant in a federal court instead of in a state court a block away should not lead to a substantially different result. Example: Burden of proof in diversity cases follows state law (Cities Service Oil Co. v. Dunlap) Choice of Law III Guaranty Trust Casebook 503-511 Guaranty Trust Co. v. York (US 1945) o Outcome determinative test Does it significantly affect the result of the litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court? Choice of Law IV Hanna

Rules Enabling Act (REA) 28 USC 2072 Casebook 517-529 Hanna v. Plumer o Issue: In a diversity case, should service of process be made according to state law or FRCP Rule 4(d)(1)? Sub-issue: Do we mechanically apply outcome determinative test? No, we must also look to the aim of the Erie Doctrine: discouraging forum shopping between state courts and federal courts which violated equal protection of in state and out of state citizens. Application: Allowing or not allowing federal procedure would not have affected plaintiffs choice of forum. They would have just followed the other form of service. o FRCP controls matters within their scope, even when state procedural rules would, if applicable, require something different. (RDA Section 1652). FRCP rule 4(d)(1) conflicts with Mass. service rules, but rule 4 controls.

Alternative Dispute Resolution

Alternatives to litigation as a means of dispute resolution (ADR) Settlement and Mediation Casebook 1030-1043 Alternatives to litigation as a means of dispute resolution (ADR) Arbitration AT&T Mobility LLC v. Concepcion (Supreme Court 09-893, decided April 27, 2011) Casebook 1043-1056