Professional Documents
Culture Documents
Professor Bloom
SECTION 1: JURISDICTION
I.
II.
Background
Article III of US Constitution (establishes the federal court system) -- things not included, courts can't hear.
Article IV, Section 1 of US Constitution- "full faith and credit clause". (if they had jurisdiction).
14th Amendment.
Personal Jurisdiction where question. Under DPC, courts can only hear cases when they have PJ over the
defendant. PJ=courts power to hear case over a D.
1. Background
a. Pennoyer v. Neff : No longer good lawEstablishes a very rigid rule, establishing PJ as part of whats
required under the DPC. It says that in determine PJ, look at presence in particular state and owning
property in state allows court to exercise PJ in state. But Neff buys property after judgment and usit
wasnt about property so court holds for Neff. Case says if in state, PJ, if out of state, no PJ.
b. Miliken v. Meyer Partners for oil well sued each other in Wyoming but on in CO. Court hodls that
there is PJ even though he is not physically present in the state. Leaving state physically doesnt
abolish connections with stateit is fair for court to exercise PJ over someone who owns property
in state. With privs of state come responsibilities such as paying taxes/being subject to courts there.
Expands the original personal jurisdiction from Pennoyer.
c. International Shoe Co. v. Washington: Court holds the company is subject to PJ of WA courts even
though it not a resident and its factory not there. Court says for first time that court can exercise PJ
over non-resident D if D has minimum sufficient contacts in state such that jurisdiction does not
contradict due process (fairness).
1. Minimum sufficient contacts: Look at how regular business was, quality and nature of Ds
activity, # of employees there, amount of revenue derived, if company takes advantage
of enough of rights of state to be sued there.
d. 3 types of Jurisdictions
i. In Personam Jurisdiction (and assets) Most common. PJ over the person D then PJ over
a person or corp and all their assets
a. Ex. Times v. Sullivan-PJ over Times and 4 neighbors. Also McGee and
Denckla cases.
b. McGee. V. International Life Insurance-PJ exists. Franklin, CA resident,
purchase life insurance policy from insurer which mailed reinsurance certificate
to Franklin in CA offering to insure him. He accepted by paying premiums by
mail from his home to insurers Texas office. When insurer stopped paying
after Franklins death, McGee estate sued in CAthere is PJ, held for McGee
estate, since with increasing nationalization of commerce increases business
conducted across state lines and modern transportation makes it less
burdensome for party to defend himself in a state where he engages in
economic activity. Due process binds insurer since suit based on contract
which was substantially connected to CA since premiums mailed from there and
insured resident of CA.
c. Hanson v. Denckla-No PJ. Mrs. Donner created trust, funded by public traded
stocks. She lived in PA, but trust created in DE, with DE bank as trustee. She
then moved to FL and died there, her will probated in FL. Issue: Does FL
court have PJ over the trust? Holding: FL lacks PJ, so 3 daughters share equally.
Under shoe standard, no minimal contacts in FLD trust company has no
office in FL/does no business there.
ii. In Rem Jurisdiction PJ over a thing or tangible itemusually real property.
a. Ex. If bro calls you up and asks to borrow your car, gets caught smuggling
drugs across Mexico, govt has in rem PJ over the car.
iii. Quasi in-Rem Jurisdiction establishes PJ over a person by seizing assets as leverage to
make him appear to get in personam. Its a mix of the two
1. Shaffer v. Heitner (one approach)
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a.
are such that he should reasonably anticipate being hailed to court there. Here,
not reasonable, no purposeful availmentno min. contacts (see test below)
For specific PJ there must be
1. "Minimum Sufficient Contacts"-that are purposefully directed to the target
state/purposeful availment, that are connected to the suit. Can be things you 1) you did
inside the state physically or 2) you did outside the state that had effects in the state.
2. Reasonableness (established by WWVC)
a. *Burden on defendant - defendant's interest /fairness (key factor)
b. Ps interest in forum (fairness)
c. States interest (federalism)-event happened there, so some state interest
d. Interstate interest in efficient resolution (federalism)-whether there would be
better place to litigate it with regards to where evidence is
e. Shared interest of several states in furthering fundamental substantive social
policies (federalism)
***purposeful availment***-D took some purposeful action to avail itself ot he
benefits of that state
2. Asahi Metal Industry Co (Japanese co.) v. Superior Court-there is no PJ
a. CA citizen P injured on motocycle when collied with tractor, filed product
liability action in CA against Taiwanese tire manufacturer, who then ifled 3rd
party complaint seeking indeminification from Asahi, manufacturer of tubs
valve assembly (Japanese co). Asahi was aware that parts were ending up in Cali
(forum). Is this sufficient for minimum contacts?
b. Due Process Clause requires more than that D was aware of its products entry
into the forum State through the stream of commerce rather you need
Purposeful Availment. forseeability
c. Holding: No PJ. All justices agree that the reasonableness test fails here. Mere
awareness that tire tubes will end up in CA is not enoughNo min. contacts
3. Burger King Corp. v. Rudzewicz-there is PJ
a. D fell behind on franchise payments. P sued in Florida federal district court
because Ps headquarters in FL.
b. Holding: There is PJ since D franchisee entered into contract w/ FL based
corporationpurposefully directed his activities at FL.
c. RULE: Sliding scale. More reasonable it is, the less you need contacts. Less
contacts but more reasonableness since made sense to litigate in FL)
4. Pavlovich v. Superior Court-no PJ
a. Pavlovich (texas resident) posted anti-encryption technology on his website
hurt DVD CCA. He was in Indiana but now Texas resident. CCA sues him in
CA, arguing he hurts motion picture and computer industry).
b. Affects Test-Jurisdiction can be established based on the effects of conduct in
forum state if they were purposeful. You dont have to actually step into the
forum if you can reasonably expect to have an effect in the forum which would
expose you to lawsuit.
c. HOLDING: Court says no PJ since no purposeful availment.
c. STATE LONG ARM STATUTE
i. State courts can regulate so long as there are consistent with the due process clause. They can be
more demanding than due process, but not less. Rationale: preserve court resources, limit
opportunistic Ps. They can go as far as Due process (ex. California) -- co extensive. Due
process is floor, not ceiling.
ii. Do 2 things
1. Apply state long arm statute
2. Make sure state long arm statute doesnt contradict due process clause
III.
NOTICE-Making defendant aware of pending legal action. Closely related to PJ, but dont conflate the 2. Under
DPC: deprivation of life, liberty, or property by adjudication must be preceded by notice and opportunity for hearing
appropriate to the nature of the case.
Rule 4(k) - Can establish PJ by serving person whom the state court has gen jurisdiction.
You need two things:
i. Notice-notification given to a D regarding pendency of action against him
1. Personal Service/In-hand service of process
a. Advantages-emphatic, clear, and if you want PJ in that state, can get tag jurisdiction
b. Disadvantages-could be hard to find person, expensive
2. Certified Mail-Acceptable, easy, cheapr, but some things can get lost
3. Publication (last resortsee Mullane below)-Newspaper can be practical if you can show inhand and mail are impractical.
4. 98% of cases D waives right to formal notice. Why?
a. Rule 4D (must know!)-waiving service of process
i. Money-D could have to pay for cost of service of process if you dont wave
unless there was good reason not to waive
ii. Time-If you waive service, you get more time to respond to complaint.
ii. Opportunity to be heard/respond
1. Must be fair -- Reasonably Calculated to notify and allow D enough time to respond
Mullane v. Central Hanover Bank & Trust Co.
i. Trusts: assets deposited by a first party (settler) with second party (trustee) for the benefit of third
parties (beneficiaries).
ii. Notice was sent via newspaper but the Defendant had their addresses.
iii. Court said this was not reasonable Parties should make reasonable effort to give notice. Court ruled
that an elementary and fundamental requirement of due process in any proceeding is notice
reasonably calculated to apprise interested parties of the pendency of the action and afford them an
opportunity to be heard. Notice by publication is not suffiecient when addresses and persons ar e
known.
Waiver of Serve: if D doesnt refuse to waive service, costs by P go to D for effecting service.
IV.
VENUE authorized by 1391 Another limit on where case can proceed, focusing on districts. Venue=location
of court where suit would take place. Can be waived.
Source of law: PJ is derived from due process/long arm statutes and venue comes form federal 28 USC 1391.
Scope: PJ applies to state and federal courts and venue applies only to federal courts (states have their own venue
statutes but 1391 applies only to federal courts)
Breadth and focus of analysis
o In PJ have to go through each D one by one, but for venue, look at case caption as a hwole
o PJ looks at borders of states, but venue focuses on districts. Districts are little subdivisions of geographic
areas within states by population (CA has 4 judicial districts-northern, eastern, southern, and central)
Type of Case/SMJ (1391 A or B)
For jurisdiction based on diversity citizenship 28 USC 1391(a)
1. 1391(a)(1) RESIDENCE: In federal district where any D resides, if all Ds reside in same
state
a. Ex. CA P against two Ds in NYjurisdiction in Bronx or Albany so A1 satisfied
b. Ex. CA P against D in NY and D in MAA1 not satisfied
2. 1391(a)(2) SUBSTANTIAL EVENT: In federal district where a substantial part of the
events occurred or substantial piece of the property is
a. Ex. CA P sues D from NY and Idaho and accident happens in Connecticut. A1 not
satisfied but A2 is satisfied n Connecticut since venue exists (accident there)
b. Ex. Same facts as above but try to sue in Texasno A1 or A2 venue
c. Ex. Same facts as above but accident in Mexicono A1 since Ds in dif. States, no
A2 since no judicial districts outside of the US.
3. 1391(a)(3) PJ FALLBACK: Federal district (not state) in which any D is subject to PJ at
the time the action is commenced, if there is no district where action may be brought)
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a.
Ex. CA P sues D from NY and Idaho and they have car accident in Mexico. Could
try to sue in NY or Idaho, but each D will make motion to dismiss since no PJ, so
have to sue each separately or just sue one
Everything
else
1391(b).
Not all about diversitycould be federal question or federal question +
supplemental jurisdiction
1. 1391(b)(1) RESIDENCE: where any D resides, if all Ds reside in the state.
a. Ex. CA P sues Ds in Montgomery and Birmingham for copyright violation (federal
question) so P can sue in either Montgomery or Birmingham
2. 1391(b)(2) SUBSTANTIAL EVENT: where substantial part of the events occurred.
a. Ex. Texas P sues Texas and Ohio Ds about labor dispute in Michiganthere is
venue in Michigan
3. 1391(c)(3) FALLBACK: Judicial district in which any D may be found, if there is no
district in which the action may otherwise be brought (similar to A3this is distinction but
not a differencethis means subject to PJ)
Type of Defendant (C or D)
Corporate defendants-Corporations reside in any district where it is subject to PJ at the time the action is
commenced plug it back into 1391(a)(1) or (b)(1).
i. Ex. Oregon P vs. Seatle D and Anheizer Bush, filed suit in WAA1 is satisfied for Seattle D, but
not for corporate D, so
1. Ask where corp. is subject to PJ=where it resides. Anheizer Bush resides anywhere where it
is subject to PJ and it sells things everywhere, so WA is appropriate under A1.
2. Plug info into A1 or B1.
Alien (non-US citizen)-may be sued in any district
A case removed from st to feral, has venue where such action is pending 1441(a).
Dee-K Enterprises v. Heveafil-there is venue and PJ
i. Dee-K (P), a Virginia corp, bought rubber thread from Heveafil D, Malaysian company, an dother
foreign companies to make bungee cords. P alleged that D and other coprs were engaged in
conspiracy to fix prices, brought antitrust action in Virginia. D moved to dismiss suit, arguing no
venue and no PJ.
ii. Holding: There is PJ and Venue for Malaysian Ds that make rubber for bungee cords. General
venue statute, providing that aliens may be sued in any district, overrides special venue laws that
place venue more specifically. D had exclusive sales agent for US, customized product for US
market, so applying shoe, there is PJ. Clayton Act lays venue in any district where D is found or
where it transacts businesswhile D does not meet these requirements, 28 USC 1391 says aliens
may be sued in any federal district and this overrides special venue statute in Clayton act.
*PJ, Notice, Venue, and SMJ are not always sufficient to proceed in a case, because there are 2 discretionary devices federal
courts, and sometimes state courts can use to reject cases even if they have PJ
V.
TRANSFER AND FORUM NON CONVENIENS-not very common, transfer more common, but forum
nonconveniens has only succeeded at SC twice.
Transfer (statutory): - 1404- Change of venue within federal court system
i. 1404(a) for the convenience of parites and witnesses in the interest of justice, a district court may
transfer any civil action to any other district where it might have been brought (has PJ)can
happen by party motion, or at courts own discretion. CONJUNCTIVE TEST:
1. Where? Is there an Alternative Fed. Court ( with PJ, Notice, Venue & SMJ). Big issue is
venue since the others are easy (D opts in)
2. When? When the alternative court is better than the first court for the interest of Justice
and convenience of parties and witnesses and also access to evidence
a. Ex. CA P v. Connecticut D about 7-11 frnachise caught on fire in Ohio. P sued in
Connecticut federal court since there is PJ since D resdies there (domicile), there is
notice and SMJ and gets venue under A1. But there could also be venue in Ohio
since fire took place there under A2, so you can transfer from Connecticut federal
court to Ohio federal court. It makes sense since witnesses and evidence are there.
ii. No need to dismiss and refile, law that would have applied in original court gets transferred with the
case.
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VI.
Forum Non Conveniens (common law) Like transfer but difference since it is common law motion to
dismiss and can only be brought by the parties (not by court, unlike transfer). (2 cases ever Gulf Oil/Piper).
It eliminates it from federal court system altogether because litigating in federal court system is insensible
even though all 4 things (PJ, notice, venue, SMJ) exist. Court can only dismiss it with instruction to refuel. It
can be used to get to different state, but it is usually used to dismiss, saying it should be refilled in foreign
country.. Federal courts have no authority to force case into foreign system without refilling, so thats why
its a dismissal.
i. TEST:
1. Is there a valid alternative forum? (to foreign court) ---- reverse forum-shipping by D.
Almost always an international court and never another federal court. Even if the move is to
slightly less favorable place for the P, court can still grant motion to dismiss for forum non
conveniens.
2. Reasonableness private/public interest factors (Piper)
a. Private interests: more focused on litigants in particular case, relative ease of access
to sources of proof, evidence, and witnesses.
b. Public interests: court efficiency, choice of law, jury not being confused, local
interest in having localized controversies decided at home.
Piper Aircraft v. Reyno: grants aircraft company Ds motion to dismiss for forum nonconveniens since Scotland
is proper place rather than PA.
i. Facts: Plane crashed in Scotland. 5 died and their P brought wrongful death suit against Piper in CA
state court. D moved for removal to CA federal court, then transferred it to PA (where they had
offices, planes made there), then made motion to dismiss for forum non conveniens, arguing
Scotland was proper forum. P opposed, arguing Scotish law less advantageous to her since no strict
liability there.
ii. Holding: motion to dismiss for forum nonconveniens granted since Scotland proper place rather
than PA. P may not defeat motion for forum non conveniens by showing alternative forum less
advantageous to him. Private and public interest lean toward Scotland sice all evidence and witnesses
there.
SUBJECT MATTER JURISDICTION: Review Sua Sponte (upon its own initiative). Power and authority of
court to enter binding judgment on this kind of case, has to do with type of claims. It has to do with allocation
between state and federal courts, and unlike PJ, notice, and venue, it is NOT wiavable.
State courts General Subject Matter Jurisdiction-can hear all types of claims
i. Congress can exlude them from certain areas (patents, securities, and antitrusts: 1333 (admiralty),
1334 (bankruptcy).
ii. SMJ can help us figure out venue as well (since diversity or federal question will help you know if you
are in 1391A or 1391B.
Federal Courts Limited Subject Matter Jurisdiction. Article III articulates federal judicial power, says SC is
required but it is up to Congress to create lower federal courts. Federal courts have original SMJ in two
places:
i. Federal Question: Arises Under 1331-District courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treatises of the US (federal laws). Must be part of
Ps actions (cant be in anticipation of a defense)
1. Well pleaded complaint rule-does a federal question arise on the face of the complaint (cant
be in anticipation of responses/defenses)
2. Su a Sponte-Federal governments obligation to patrol SMJ borders (Motley)
a. Motley-FACTS/PP: A congressional statute made rail-road passes illegal and RR
refused to renew Mottleys passes. Motleys held them b/c of a previous settlement
when injured riding RR. Federal courts granted them relief, and they filed action in
federal circuit court for western dist. of Kentucky (but contract law=state law!). Ps
and Ds both citizesn of Kentucky so no diversity. Ps tried to establish federal
jurisdiction by claiming D could raist constitutional defesne as answer.
b. HOLD: No federal jurisdiction since no federal question since it doesnt arise on
the face of the complaint must have a well pleaded complaint. no SMJ
3. Why have federal question jurisdiction?
a. Expertise-federal courts could be better at federal law
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loan, P sued in fedl dist. court for breach of contract (state law).
HOLDING: Grants dismissal since no diversity so no SMJ. Intent of 1332
was to allow citizen and alien to go to court, not alien and alien. Must be
complete diversity.
ii. Literalism vs. Intentionalism
Literla interpretation: OK to hear this case
Intentional interpretation: not within Congresss intentnot ok
i. Citizenship is determined at the time of filing (this allows Ps to refile cases just
under better pleading).
3. Two exceptions that cant get into federal court
a. Domestic relations (divorce, child custody, and alimony proceedings)
b. Probate (Anna Nicole Smith case)
SMJ Hypos
i. Indiana v. Delaware/Idaho on federal claim-both diversity and federal question
ii. Indiana v. Delaware/Idaho on breach of contract for 80K-only diversity, no fed question since state
iii. Indiana v. Delaware/Idaho on 2 claims under breach of contract and federal claim-SMJ for both
iv. Indiana v. Indiana/Idaho on breach of contract and federal claim-for state claim, no fed question and
no diversity since no complete diversity, so what can you do?
1. File federal claim in fed. court and state claim in state court
2. File both in state court since states have general SMJ
3. Try to get both into federal court despite the fact that state claim couldnt get there on its
ownsupplemental jurisdiction
v. Supplemental Jurisdiction - (SMJ) 1367. Federal SMJ over things that brought independently or
alone wouldnt get into federal court. State claims pigging back on core fed. claims.
1. Remember that there are other ways (break up, both state courts, etc.).Section 1367 is
different in two key ways
i. Instead of constraining, it expands the jurisdiction of the federal courts
Rose from the notion of a case, all of the legal claims that grow
from a particular eventone thing can give rise to many things
Economy efficienty for courts and parties (do it once instead of
twice)
Avoids inconsistent judgments (legitimacy concern)
Treating them all at the same time prevents preclusion problems
where parties race to get judmgment in more favorable forum first,
to affect the other.
b. It is not independent like 1331 (federal question) or 1332 (diversity) to get into
federal court, it almost always follows 1331
c. 1367: Ion any civil action in which district courts have orig. 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.
i. You can only supplement things that are there with things that are related
enough
TEST: 3 Elements
2. STEP 1: Anchor/Hook is any part independent (via 1331)? Some claim that gets into
federal court on its own (focus is on federal question)
3. STEP 2: Relation/Common Nucleus of Operative Facts- If there is anchor, there must
be connection/relations. Are claims in federal court dependently and sufficiently related?
Are they part of same case or grow form same event or series of events?
a. Ameriquest Mortgage: Skanes P claimed house appraise D inflated value of her
property to increase loan amount and increase Ameriquests other D potentital
profit. She field federal claim under Truth in Lending Act, and alleged state fraud
claim. D Trevino moved to dismiss state law claims.
b. HOLD: Supplemental jurisdiction is proper where there is sufficient nexus between
state and fedl claimscourt already had jurisdiction over fedl claim, so it has supp
jur. Over state claims since they are factually connected to fedl claim. SMJ over
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4.
5.
6.
7.
8.
TILA (federal) claim and no SMJ over II/III over fraud (state), but suits of each will
effect another. If court dismissed state claims, it might have been unable to grant
the full measure of relief Skanes sought in her federal claimSJ
c. Applying broadly or narrowly?
STEP 3: Discretion - Courts have discretion not to hear claims in federal court under
1367C. Can decline if there is:
a. 1367(c)(1): claim raises a novel or complex issue of state law - Szendry
b. 1367(c)(2): state claim substantially predominates over the claim or claims over
which the district court has original jurisdiction. - Szendrey
c. 1367(c)(3): The district court has dismissed the state claim or all claims over which
it has jurisdiction
d. 1367(c)(4): In exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
Example: Szendrey-Ramos v. First Bancorp
a. Facts: Szendry finds bad conduct and gets fired for uncovering it. She files for
Puerto Rico state laws and Title VII fed employment.
b. HOLD: There is no supplemental jurisdiction because under 1367c1, state claim
raises novel and complex issue of state law and under c2 state claim predominates
(in # and scope). b/c of attorney/client state bar matters, no supplemental
(1367(c)1+2). Since courts in Puerto Rico hadnt decided how legal ethics rules
applied to Ds situation, court didnt want to decide this case.
Example: P (Ca) v. D (CA) on copyright claim (federal law and breach of contract (state
law). There is no diversity since both from same state, 1331 is only satisfied for copyright
claim). Federal courts can have jurisdiction over state claim since there is a hook, and
depending if they ocome from same case based on same facts.
1367(d): Statute of limitations stops while SJ request is pending and for 30 days after that
1367(b): diversity: if your only hook is diversity, you cant add other non-diverse 3rd parties.
You cant wait for other parties to come in and then say now that youre here, Im going to
sue you too. This statute tries to get a end the runaround to 3rd party (not on test)
a. CA v. Co and you only have diversity then CO adds CA so its now CA v. CO and
CA, cant sue CA unless there is SMJ in that single suit on its own
REMOVAL 1441 - StateFederal Defendant second guessing the Ps choice of forumthe relocation of
a case from state trial court to federal trial court closest to the state court and in that district. Once you
remove case, then can transfer, but first remove to closest federal district court. When there is removal,
assume venue exists.
i. Test-2 Elements
1. Recipient federal court has original SMJ over the case-2 options
a. Federal Q=hook for removal=removal OK
b. Diversity-hook for removal=removal ok only if no D is a resident in that state
i. Rational: purpose of removal is to prevent bias against Ds
2. Recipient court is the federal district that engulfts the original state court
ii. Process of Removal2 steps
1. 1446: D files a notice of removal in state court (not a motion, all Ds have to agree). Must
notify state court and the parties. Filing a notice of removal is not consent to PJ. First thing
you do when you get to district court is file a motion to dismiss for lack of PJ.
a. Time Limits
i. Federal Q: D can remove within 30 days after receiving service of process.
***1446(b): If D wants to remove a case, D has 30 days from
commencement of action (service). After 30th day passes, D cant remove
it. But if 30 days passes and it wasnt removable but on day 40 or up until a
year something changes that makes it removable then you have another 30
days after that change to file for notice of removal)
ii. Diversity: D can remove within 1 year after federal SMJ over case
established (1332)
These time limits try to force Ds to make removal choices quickly
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iii.
iv.
v.
vi.
vii.
viii.
SECTION 2: ERIE Comes via Diversity(1332) or Supplemental (1367). When a federal court sits in diversity jurisdiction,
what law does it apply?
I.
How is Erie different than other things we have discussed?
i. Erie is not about the exercise of power, rather it is a law question, and specifically what law. It is a Q
that comes after the preconditions.
ii. Its connected structurally in that it picks up on separation of powersinteractions of state and federal
governments
iii. Its about choice of law (like in BK)
iv. Its connected analytically with SMJ (in particular with diversity and supplemental)
v. *Erie doctrine concerns federal courts addressing diversity or supplemental jurisdiction cases. Erie is off
the table if federal courts are addressing federal Q.
II.
First ask: What choice of law does the state have (lex loci, lex flori or lex domicilli), and then compare that law to
the federal law. Is there a conflict? -- 1652 laws of several states must apply. When discussing Erie, courts apply
1652, which says that laws of the several states, except where the Constitution or treatises of the United States or
Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of
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the United States, in cases where they apply. When courts addressing questions of state law, they apply the laws of
the states. What this means has changed over time.
Swift v. Tyson (1841): laws of several states does not mean case law, state law not binding, federal common law
appliessays state court opinions are not laws.
i. Fed. Court can deduce federal common law from statutes.
1. Problems with Swift:
Allows a lot of forum shopping: Black and White vs. Brown and Yellow: Brown and Yellow
Taxicab had contract to keep Black and White out of the market and Kentucky state
courts had said that monopoly contracts like that were illegal. Brown and Yellow have
no way to get it into federal courts since no diversity (both from Kentucky), so they
move to Tennessee to get diversity to get into Kentucky federal court since then federal
court wouldnt have to apply state Kentucky law under Swift and court can enforce this
contract, which the federal court did. (this is forum shopping that helped them).
Inequitable Administration of the Law: dramatically divergent answers from courts just
across street from one another (if one is state court and the other is federal court)
Allows for general law, federal court independence, allowing too much federal intrusion
on state power and separation of powers problem, allowing courts to make law in ways
Congress couldnt.
2. The Erie court calls Swift unconstitutional.
Erie Railroad v. Tompkins: laws of several states includes state common law.
i. Facts: Tompkins from PA was walking feet from train tracks, as train passed, open door hit him,
knocking him under train, severing arm. He brought suit in fedl dist. court of NY (fel court answering
question of state law since tort). Erie RR was NY corp so PJ, and SMJ since diversity. D wants PA law
to apply since under that law, Tompkins was trespasser and RR only liable for wantonnegligence. P
wants general federal law (as under Swift) to apply since P would be licensee and only have to show
ordinary negligence.
ii. Holding: Swift is unconstitutional since it violates federalism (allowing fedl courts to invade sovereignty
of states) and separation of powers (allowing fedl courts to make general law ehre Congress couldnt).
Justice Holm rejects the notion of federal general common law and is a move from Natural Law
(brooding omnipresent) to Positivism. While fed courts may apply their own rules of procedure,
substantive issues must be decided with applicable state law (usually state in which court sits). Court
must follow PA case law (willful negligence), which would deny recovery for P Tompkins.
iii. Rule: No Federal general common law, must respect state (federalism). When federal courts are
answering questions of state law or supplemental, they have to figure out which law applies through
choice of law opinions, and then look at state constitutions, statutes provisions, and do what state law
says.
iv. Choice of Law-Erie requires federal courts to follow state choice of law rules. States have choice of law
rulesstandards for which law to apply in particular cases (often in court decisions or in statutes
1. Many states adopt a lex loci approach, the law of the location of the event.
2. Some have lex fori-the law of the forum
3. Some have lex domicile-law of the domicile of one of the parties
4. Most of these choice of law provisions are default rules (courts can negotiate away from them
by contracting.
v. Justice Reeds Concurrence: The line between substance and procedure is hazy.
vi. *Interests are countervailing: We want uniformity of decisions but we want federal courts to be
somewhat different and the tests for this evolve over time.
THEN ASK: Codified? Is the federal rule codified? Mention Erie and the blurring of lines according to Justice Reed.
III.
IV.
i. Does the rule of federal civil procedure fit under the Rules Enabling Act (is it really procedural?) (Court
says in Hanna Rule 4 about service is procedural). This is a statutory question Hanna deconstitutionalized the Erie issue.
1. 2072: Rules enabling act: allows federal courts can make federal procedural rules except
2072(b) but cant be substantial)
2. No Rule has ever failed to satisfy the Rules Enabling Act
3. 1642: State Rules of decision act What is laws of several state (Swift tries to answer).
ii. Is the procedure specified in the rule constitutional? (Erie) Will it create Erie concerns?
1. Avoid Forum Shopping
Black and White vs. Brown and Yellow: A contract case (KY says the contracts are invalid).
They instead sue in TN and get into federal court to get the opposite decision.
Court says in Hanna people wont organize litigation around who will answer door for
servicenot an incentive to get into or out of state court
2. Avoid inequitable administration of laws.
i. Seemtek: see below
ii. Hanna: In div. suit for personal injuries (state issue), Plumer D represented
estate of one of the drivers involved in fedl court. MA law said suits required
personal service of process on estates of executor, but process instead served
under Fed Rule 4e2b, which allowed for complaint to be left with competent
adult at Ds residence. HOLDING: Federal law on service of process trumps
state law since it is slightly procedural. Erie doctrine mandates that federal
courts are to apply state substantive law and fed procedural law, and where
both could apply, Const. grants federal court system power to regulate their
13
practice and pleading. Court rejects the outcome deteriminative test (York)
and asserts that any rule must be measured against Rules Enabling Act (says
federal courts can make rules of procedure as long as not substantive) and
Constitution. The Court (service of process) thought wouldnt get different
answer and that that this issue passed the test and was reversed.
iii. ***If the rule passes both above i and ii questions, then it must be applied even if it differs from state
practice in significant way. If the rule fails either test (not procedural or not constitutional) then state
law applies. Every time a federal rule has run through Hanna test, federal rule is applied!
V.
Justice Harlans Concurrence from Hanna helpful tool. When deciding whether something is substantive or
procedural, ask if the choice of rule substantially affects those primary decisions respecting human conduct which
our constitutional system leaves to state regulation. Things that happen in real world are primary (substantive/rights
and obligations) and things that happen in court are secondary (procedural/form and mode).
14
15
II.
III.
IV.
ii. There are collapsed into one. Rule 2 (or 1?): there is one form of action- the civil action". Federal
courts have the power to administer both types of these remedies, often in same case.
iii. Injunction: order from a court telling a party to do something or stop doing something. Most
common type of equitable relief, enforceable by contempt proceedings leading to fines or jail.
Courts regularly deny injunctions since either legal remedy is adequate, Ps harm not irreparable, or
too much hardship for D.
1. $ before injunction since injunctions are more intrusive to parties, infringing on autonomy
and liberties and
2. Injunctions are harder for courts.
iv. Permanent injunctions-(Sigma chemicals case)-order from court that comes after trial, after
determination of the merits and when you are entitled to legal relief.
1. Sigma Test for when you can get injunction: First look to see if the contract is validif it is
reasonably constrained as far as its geographic and temporal scope, then must meet 2
conditions for permanent injunctions to be appropriateneed both.
a. Would $ be inadequate/would P suffer irreparable harm without injunction? There
is no adequate legal remedy ($ just wont do). D cant write check or hard to
calculate how much check would be.
b. Balance of hardships-party who wants injunction and wouldnt get it v. party who
doesnt want it and gets it
2. Contents-3 requirements-Rule 65D-injunctions of all types are supposed to be as specific
and detailed as possible.
a. Reasons why issued
b. Specific terms
c. Acts restrained/required in reasonable detail
3. Sigma Chemical Co v. Harris
a. D (Harris) possessed imp knowledge, and works for Ps competitor, helping it find
new sources of various chemicals. His contract w/ Sigma had non-compete and
non-disclosure clauses. P Sigma sues D Harris for breach of empl. Contract, seeking
permanent injunction.
b. Hold: Injunctive relief granted. Hardship to Sigma is significant and strong threat
of irreparable injury to Sigma Harris cant work for ICN for 2 yrs + give secrets.
The main prerequisite of obtaining injunctive relief is a finding that P is threatened
by some injury for which he has no adequate legal remedybalance interest of the
parties (hardship on P if relief denied as opposed to hardship on D if granted).
c. Policy: Court hesitant. Rule 56(d)(1) contents of the injunction (reasons, terms,
detail)
4. Ex. I am blooms neighbor and dont like his lights display, cant sleep and no money that he
can pay that would satisfy my need for sleep. Legal (substitutionary) remedies wont work,
so need court order telling him to take it down. If I get injunction and he doesnt take it
down/stop action, I can go back to court and court can hold him in contempt by 1) fining
him 2)jailing him or both until he complies
v. Preliminary Injunctions: often a decisive decision on small evidence, order that comes before trial
and can come when you file complaint (invasion even more of a concern here). An order issued by
the court before adjudication on the merits at the commencement of an action, requiring a party to
refrain from conducting a specified activity that is the subject of the controversy, until the matter is
determined. Some harms/risks are so great that courts need to step in even if court has yet to
determine the merits.
1. Immediate Appellate review (1292A), ask for as early as day of filing
2. Problem-Its all or nothing-big decision based on little info, happens before discovery, courts
say they arent decisions on merits but they really are and could be final, decisive decisions.
Also informs settlement.
3. How alleviate problem? Courts allow immediate appellate review (1292a) and use
standards/tests that give courts lots of discretion. Standard of review: abusive discretion.
4. Test-2 options
a. Inglis I Test-4 Elements (district court)
i. P will suffer irreparable injury if injunctive relief not granted.
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19
Background
A. 3 types of pleading regimes:
i. Common law writ pleadings: used for centuries, reflects division between law and equity, goal was
to plead your way into particular side of royal jurisdiction, narrowing down the issue to fit as a writ
(there were specified # of writs)
1. Benefits-very rule based, easy to apply, predictable, straightforward
2. Cost-highly artificial, inflexible, hard to plead harms into fixed # of existing writs
ii. **Code/Field/Fact Pleadings (CA courts still use fact pleadings)-Collapses distinction between law
and equity, gets rid of focus on writs and instead focuses on cause of actionabout pleading enough
facts to show you are entitled to relief. Requires great deal of fact specificity at the very beginning.
Problem: P doesnt always have all facts he needs to be as specific as court wants him to be.
1. Twombly pushes it into this fact pleading context
iii. Notice Pleadings-used by federal courts, adopted by FRCP and majority of states. All Rules require
are short and plain statement of the claim that gives D fair notice of what Ps claim is and its grounds
(Conley)
1. Easier for Ps since dont have to have facts initially and dont have to squeeze your way into
existing writs
2. Policy rationale-initiates litigation. Provides notice of the nature and grounds of the claim,
influence judge at outset, influence or shape settlement by revealing weakness
3. 3 balances notice pleading tries to strike
a. Fairness to Ps and Ds-gives Ds information about what theyre being sued about,
while fair to Ps in what we hold them to know this early
b. Caseload-not too many or too few. Want meritorious claims to get through but not
frivolous ones.
c. Length of pleadings-not too long (burdening court) or too short
4. Notice pleadings are supposed to facilitate adjudication on the merits-its a game of skill!
B. 8 Types of Pleadings-Rule 7 (must know for test)-Odds are claims for relief, evens are responses
i. Complaint (claim for relief) PD
ii. Answer to a complaint DP
iii. Counterclaim (D suing P back) DP
iv. Answer to a counterclaim PD
v. Crossclaim-original D1 sues original D2 D1D2
vi. Answer to crossclaim D2D1
vii. 3rd party complaint (when you bring in another person into litigation that is not already there
almost always indemnification actions (ex. Asahi)
viii. 3rd party answer
Close ended list for pleadings (motions are not closed ended). Odd numbers are claims for relief, evens
are responses.
Exception: Replies-P cant file a responsive pleading to Ds answer unless court requests
II.
III.
20
B.
C.
D.
E.
2. Policy: "Res Geste" - telling a story (may need to make it longer w/ judge + otherside
reading). Short and plain statement approach is rarely honored. Parties often include a lot
more to scare the other party, get them to settle and because court will read this and this is
your first chance and probably only uninterrupted chance to make your case.
3. Whats discoverable in a case depends on whats relevant, and whats relevant depends on
the content of the pleadings.
4. Conley v. Gibson: Black railway employees filed against hteir union, alleging breach of their
duty to represent w/out discrimination all employee of union (sought injunction, declaratory
relief, and damges). Ds moved to dismiss. Holding: Motion to dismiss denied. It was
wrong for court below to dismiss complaint for lack of jurisdictionCourt not supposed to
dismiss on 12b6 motion unless beyond doubt there is no state of facts where P can
prevail--Very plaintiff friendly, broad standard.
5. Bell Atlantic Corp v. Twombly: P telephone/internet subscribers allege that companies violating
antitrust laws by agreeing not to compete with each other. Court dismissed for failure to
state claim, court of appeals reversed. Holding: Motion to dismiss for failure to state a
claim granted. For complaint to survive dismissal on pleadings, it must include enough facts
to state a claim to relief that is plausible on its face (cant be entirely speculative).
iii. DEMAND FOR RELIEF(remedies-$, injunction, etc)
1. Rule 9(g)must plead with specificity if you seek relief for special damages (those that do
not normally flow from an event.
You need to do all three of these and can also demand a jury trial under Rule 38 (but not required by Rule 8).
Consistency: you can put inconsistent or alternative theories. Rule 8(d)(3). This is subject to limitations by
Rule 11.
i. Ex. You are P and youre not sure that you are independent contractor or statutory employee, so you
plead both. This works for defenses too.
ii. Why not plead alternatives?
1. Appearances-could frustrate judge or jury so at some point (at least by trial) have to choose
one)
2. Facts-after pleading is discovery, and discovery tells you which you are, so amend pleadings
to narrow the facts.
Rule 8a says nothing about enforcement, so there is rule 12b6 motion to dismiss, which argues failure to state
a claim upon which relief can be granted (that what P says in complaint doesnt entitle P to legal relief, that P
failed rule 8a2. 12B6 is the enforcement mechanism for 8A.
Challenging a complaint: If D doesnt think Ps claim is good, D can
i. File answer (if D wants time before answering D can waive service of process, file pre-answer
motion, or ask the court)
ii. File pre-answer motion to dismiss under Rule 12B (closed list)
1. Lack of SMJ-bring up anytime
2. Lack of PJ-bring up before or with answer, if notwaived
3. Improper venuebring up before or with answer; if notwaived
4. Insufficient process (whats in the pile of papers fails to specify what shes being sued for)bring up before or with answer; if notwaived
5. Insufficient service of process (piles of papers is fine, but never got delivered in the right
way
6. Failure to state a claim upon which relief may be granted
a. Allows courts to clean out frivolous claims
b. Assume the facts are true as alleged in complaint as long as not wildly implausible (P
friendly standard). Does not consider whether facts alleged in complaint are true
and does not resolve factual disputes.
c. Standards of evaluation
- Conley: dismiss only if theres nothing that can be proved that would
entitle P to reliefthis is broadthere must be no set of facts upon
which P can prevail
- Twombly: dismiss only if its extremely implausible that P can prove any
facts. Facts in a claim need to be plausible.
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*Courts never really apply Conley since they were always screening for
plausibility anyways, so Twombly just tweaks the language. Conley was
saying take all the facts as true, and Twombly just says take all plausible
facts as true.
- We are still in notice regime.
d. What does judge do under 12B6 motion?
- Assume facts are true as alleged in the complaint (P friendly standard)
- Decide the matter of lawif the wrong P claims is not a recognized legal
rightdismissal
1. If this is P friendly standard, why do Ds file themchance of
winning, quick and easy (but not easy to get), buys time, but not a
final win
2. If D wins, getting motion to dismiss, D wins without prejudice, so
P can amend the complaint and refile. But second time case
dismissed is with prejudice (a real loss for P)
e. Timing: Dont have to bring up until trial is over
- Rationale: initially, court can only look at the facts in the face of claim
- Discovery process works people into legal box, after which theres no
claim
7. Failure to join a party
iii. Haddle v. Garrison:-SC holds that dismissal of Ps case for failure to state claim was error
1. Facts: Haddle P alleges he was fired to deter his participation as witness at federal criminal
trial and sues employer for violating fed law allowing cause of action for causing injury to
person or property for cooperating in fed investigation. D argues P was at will employee.
Ct of App affirms 12(b)(6) motion b/c pleadings did not allege P wasnt an at-will employee.
2. Rule-Complaint must allege all elements as set out by statute or case law and Civil Rights act
requires that P suffer actual injury and discharge from at will employment does not cause
actual injury.
3. Holding: Held for P. Court grants Ds 12B6 motion, court of appeals affirms saying no
injury since he was at will employee, but SC reverses, holding that fact that employment is at
will is not property does not mean that loss of employment does not cause injury, so
dismissal of Ps complaint for failure to state a claim was an error.
F. Heightened Pleading standards Rule 9 (more than what Rule 8 requires since sometimes there is exception
to the plain and short statement rule.)
i. Burden of pleading is on the D: Court is hesitant shift this without legislative action - Jones v. Block
P prisoner sued for injuries he suffered when staff refused to reassign him to work he could do in
light of his injuriesCourt held that P need not plead and demonstrate exhaustion of administrative
remedies in the complaint (that should be in affirmative defense). Court wont heighten pleading
standards. To determine the if heightened standard of review, look at:
a. Text and history of the statute
b. Related rules (rule 8(a) here)
c. Consequences
d. Precedence
ii. 3 types of burdens
1. Burden of pleading-pleading the facts and law sufficient
2. Burden of production-producing evidence to sustain the pleading
3. Burden of persuasion-convincing the trier of fact (judge or jury)
iii. Spectrum of burden of proof
1. Beyond reasonable doubt (the highest)
2. Clear and convincing evidence
3. Preponderance of the evidence
iv. Rule 9 not following rule 8(a) additional pleading standards.
1. Rule 9(a) capacity/authority of party A party need not allege a partys capacity to sue or
be sued (can do affirmative defense)
2. Rule 9(b)- Fraud and Mistake-When you sue for fraud or mistake (misrepresentation), you
have to do more than 8ayou have to
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a.
State the circumstances of the fraud or mistake with particularity (fraud and mistake
have different damages and hurt reputations, must say when, where, who involved,
time, consequences, not just why). If P wants jury trial, must demand one here
(Rule 38)
b. Condition of the persons mind may be alleged generallyyou have to allege what
the fraud is, but not why they did it.
c. Stradford v. Zurich Insurance Co.
- P is a dentist in Staten Island, failed to pay insurance premiums. Filed for
damages against insurance company.
- Counterclaim for fraud by D against P. Heightened standards of pleading
for fraud because of the tendency of the charge to damage the accused,
regardless of its validity. P moved to dismiss counterclaim on grounds of
lack of particularity.
- Ds counterclaim lack specificity of date, time, and place. So Ds
counterclaim dismissed under 9b. Court allow D to use Rule 15(a) ability
to amend freely when justice requiresLeave to amendsummary
judgment for Ds.
d. If D doesnt file pre-answer motion or answerdefault judgment.
IV.
Response: What are the Ds options when they are served with a complaint?
A. Default-You lose the case on the meritsjudgment entered against you (Rule 55)
B. File Pre-Answer Motion (not a pleading)Rule 12: within 20 days of service (extended to 60 if service waive)
i. Why? buy time, cheaper than litigating all way, easycould take months for court to resolve
ii. Rule 12(b)seven defenses can be raised either in your answer or by motion
a. (1) SMJ
b. (2) PJ
c. (3) Venue
d. (4) insufficient process (summons and complaint)
e. (5) insufficient service of process
f. (6) failure to state a claim
g. (7) failure to join an indispensable party
2. Rule 12(e)Motion for a More Definite Statement
3. Rule 12(f)Motion to Strike
4. Rule 12(g) and (h)
a. defenses under 12(b)(2), (3), (4), and (5) and 12(e) and 12(f) must be put in your first
Rule 12 response (answer or motion) or else they are waived
b. defenses under 12(b)(6) and (7) can be raised for the first time any time through trial
c. 12(b)(1) can be raised any timeyou cannot waive lack of SMJ and court can bring
it up on its own
B. File Answer: A pleading that responds to the facts and allegations, stating defenses.
i. Two ways you can respond: (Rule 11 sanctions apply to all written documents)
1. Respond to the facts alleged against you Rule 8(b)
a. Admit
b. Deny (Rule 8(b)(6) - if you fail to deny an allegation, it is deemed an admission
except damages). If you deny everything (blanket denial), and it is in bad faith, can
be sanctioned under Rule 11.
c. Disclaim knowledge Rule 8(b)(5)if you cant admit or deny something, say you
need more info during discovery. Cant demand more proof, but can file motion for
more definite statement.
d. Zielinski v. Philadelphia Piers, Inc.
i. Facts: P sues for injuries by forklift operated by Sandy Johnson. P sued
Phil. Piers but Sandy actually working for Carload Contractors. D Piers
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knew of Ps mistake and P didnt find out suing wrong party until pretrial
conference. P requests ruling that for this case, forklift owned by PP (PP
would be stopped from denying facts it allowed P to believe).
ii. Holding: D Phil Piers uses 8(b)(3) for a general denial when it was aware of
mistakeA D who makes ineffective denial of part of complaint and
knowingly allows P to conitinue to rely on facts as stated in the complaint
may be stopped to deny the facts. P gets his request.
iii. WHY? justice requires? Court doesnt say bad faith but opinion reads
that way. Same insurance company? Lesson: be meticulous in denials.
2. Articulate affirmative defenses (add new facts to tell story in different way) - Rule 8(c)
a. Open ended list-8(c)(1)
b. Ds burden of pleading to assert these. Must be raised in initial answer to be valid
Layman v. Southwest
i. Layman owns property, Southwest Bell comes onto it and starts digging
trench without Laymans permission. Layman sues for trespass, and court
barred defendant, who just responded to the facts and failed to plead an
affirmative defense of easement, from introducing it into evidence.
ii. Other examples: contract wasnt vlaid, statute of limitations has run, P
failed to exhaust under Prisoner Litigation Reform Act
c. Not a counterclaim i.e. not a claim for relief. General rule is that P disagrees with
Ds affirmative defense.
C. Counterclaim- Rule 13-A claim for relief when D wants to sue P back (counterclaim is not answer), then P
must file motion to dismiss or answer
i. Compulsory CounterclaimRule 13(a)-Counterclaim is compulsory if it arises out of the same
transaction or occurrence that is the subject matter of the opposing partys claim. D must file claim
now or it will be waived, but doesnt have to bring counterclaim if D doesnt want to.
1. Conditions
a. D is an original party to the suit
b. Bring the above claim doesnt require adding another party to the suit
2. This creates efficiency/consistence judgments since all in one court.
ii. Permissive CounterclaimRule 13(b)-A pleading may state counterclaim against an opposing party
any claim that is not compulsorythen up to the court how it wants to adjudicate (separate claims or
not)
iii. Court corrects mistaken designationRule 8(c)(2)If party mistakenly designates a defense as a
counterclaim or counterclaim as a defense, the court must, if justice requires, treat pleading as
correctly designated.
D. Crossclaim: suit by a party against a co-party. P1 sues P2 or D1 sues D2---Rule 13(g)
i. Rule: You can sue a coparty as long as your claim grows out of the same transaction or occurrence as
the original claim, or relates to the property involved in the orginal claim.
ii. If crossclaim is filed, party against whom it is filed is now a D, and has to respond as any D would
E. Reply (rare) 3rd pleading Ps response to Ds answer. Rule 7(a)
i. A reply is necessary under Rule 7(a) if there is a counterclaim by D.
ii. It occasionally comes up to affirmative defenses. They can be mandated by the court.
iii. P must get a court order allowing a reply, to reply.
VI.
a.
ii.
iii.
iv.
v.
Rule: party can get permission to amend from court or other party (ask other party
first and party can stipulate to amendment; if multiple Ds, need permission of all)
b. Standard: should freely give leave to amend when justice so requires-15(a)(2)
During & After Trial Rule 15(b). Court should freely permit it, if it doesnt prejudice either party.
You can go back and look at your pleadings either during or after trial and retrofit them to make
them look like accurate representation of what happened at trialallows parties to amend pleadings
so they can have perfect record on appeal (hardly ever happens)
Beeck v. Aquaslide N Dive Corp
1. P Beeck injured while using slide, alleging Aquaslide D liable . D answered, admitting it
manufactured slide in question in reliance on opinion of 3 insurance investigators. Dist.
court granted Ds leave to amend answer to deny this fact and permitted separate trial on
question of manufacture. Court found for Aquaslide, SJ against Beeck P. By time of
amendment, SOL for Beecks P cause had run, and Beeck P appealed.
2. Holding: Allowing leave to amend was right. Rule 15(a): amendments are to be freely given
when justice requires. Except when bad faith, undue delay, etc. Party opposing motion for
leave must show he will be prejudiced by grant of leave, and court did not abuse it discretion
in exonerating D.
3. Possible rule 11(b) violation: lack of reasonable inquiry.
Relation Back: Amending after SOL has run out. When is it allowed? - Rule 15(c): When the statute
of limitations has run and you want to add a new claim to something you filed before it ran, you can
connect a new claim to an old claim when the amendment asserts a claim or defense that arose out
of the conduct, transaction or occurrence set outor attempted to be set outin the original
pleading (a lot like common nucleus of operative facts)
1. 15(c)(1)(A): If the statute/applicable law on statute of limitations allows it
2. 15(c)(1)(B): When adding a new claim arising out of the conduct, transaction or occurrence
set forth in the original complaint. Broadly vs. narrow application.
a. Moore v. Baker: Medical malpractice--Moore P sues Dr Baker after his recommended
surgery (warned of risks) left P permanently disabled. Ps initial complaint only
alleged violation of Georgias informed consent law. Trial court granted Ds motion
for SJ. Later P sought to amend complaint to include negligence claim, asserting
new claim relates back to date of original complaint. HOLDING: Court DENIES
Ps relation back request, says that it was not foreseeable and rose out of different
facts. Claim that does not arise out of same conduct, transaction, or occurrence as
orig. claim may not relate back to orig. pleading.
b. Bonerb v. Richard J. Caron Foundation: P slipped while playing bball at Ds foundation
in mand. Exercise program. Ps orig. complaint alleged Ds court negligently
maintained, but later sought to amend to include new claim for counseling
malpractice, seeking to relate back malpractice claim to date or original complaint
since SOL had expired for his malpractice claim. HOLDING: Ps motion to amend
granted, says that it arose from same nucleus of operative facts as original
complaint. Main factor is whether facts in orig. complaint put D on notice of claim
that P later seeks to add, and here, P is using same factual allegations, just changing
legal theory.
3. 15(c)(1)(C)): Changing a Party: If wrong party was sued, but right party knew or should have
known that it should be sued instead. As not to prejudice, thus need (1) they must have
had notice so (2)be added within 120 days of filing of suit (3)Same transaction or occurrence.
Supplemental pleadings: Rule 15(d):. On motion and reasonable notice, court can allow party to
supplement pleading to articulate new events/add new evidence that happened after the original
pleading was filed.
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SECTION 5: DISCOVERY-process by which parties collect facts, evidence, and information for use at subsequent stages in
litigation (oftentimes before trial).
I.
II.
a.
ii.
iii.
iv.
v.
Laywers are present, usually in an office. Very court-like, court reporter there,
recorded, person deposed under oath.
b. Rules: Deposition lasts 7 hours max (1 day) unless court allows more, like when
deponent refuses to answer questions court thinks it should answer
c. At the time, lawyer can object to a question to his clientRule 30(d)(1)?
i. Objections based on relevance: must answer anyway
ii. Objections based on privilege: dont have to answer
iii. Waiving: if dont object in deposition, ability to object in trial waived
d. Advantages-can assess demeanor, ask follow up Qs, push harder on things, generate
costs to other side, ask people to bring things with them (coupling with request to
produce and Rule 45 if non-party)
e. Disadvantages-very expensive, time consuming, usually only get one chance.
Interrogatories Rule 33 / APPLIES TO PARTIES ONLY, looks a lot like depositions
1. Write down questions, send to other side, parties under oath with 30 days to respond
2. Can only ask 25 questions (include sub-sections) to each individual party but court can give
permission for more. Parties can object.
3. Pro: cheap, Cons: no follow up questions, cant assess demeanor
Request to Produce - parties only (Rule 34), non-parties (Rule 45 can use to get documents from
non-parties, from subpoena)
1. Should be as specific as possible because request can be challenged as
overbroad/cumbersome and maybe other party will comply and give you everything which
would be too much.
2. Must respond within 30 days.
3. Pro: cheap to ask, as many as you need. Cons: underdiscover, overdiscover.
Request for ExaminationPhysical and Mental Exam Rule 35 / court order just for parties
1. Must provide notice, get court permission, and higher standard. Must do balancing test and
show 2 things:
a. Condition is in controversy (especially relevant, look to the pleadings CFR/answer)
b. Show good cause to perform this examination (balancing bodily autonomy +privacy
w/ req. for justice)
2. Procedure: Doctor of requesting party performs the procedure.
3. Examiners report (Rule 35(b) mutuality provision)-If you get court to grant exam of other
party, you can choose Dr. to examine them and get the report. Other party can get report
under Rule 35(b) mutuality requirement by just asking for it but when he does this, he has to
make it available a quid pro quo (waiving privilegehe now has to give over previous Dr.s
reports to other party)
4. Schlagenhauf v. Holder writ of mandamus to appeal discovery
a. P seeks 4 exams and lower court orders 9 mental and physical examinations of bus
drive after he got in accident, injuring passengers.
b. Court applies the balancing test says drivers eyesight in controversy since its in the
pleadings, and there is good cause since there is disagreement over testimony, but
other exams not in pleadings/controversy, so no mental examinations.
Request for admission Rule 36Just applies to parties
1. Request to get the other party to agree to something, admit to something, kind of like
pleadings you can get the other side to admit about law and facts. Send party piece of
paper we request that you admit this to take it out of controversy)
a. Can be about the facts or about law. Ex. You want Sullivan to admit that ad ran on
X date (fact) or you can request admission about the law that applies.
2. Often the most powerful, but Parties use this rarely, most underused.
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2. What are they preparing? Documents and tangible things (emails, charts, etc). Nothing else
is covered by WDP.
3. What does anticipation for litigation/trial mean? What they will use with regard to case that
has been filed or will probably be filed. WDP does not extend too far.
ii. No discovery unless of documents or other tangible things in anticipation of litigation or trial
UNLESS (conjunctive list)
a. Otherwise discoverable under 26B1 (relevant and non-privileged)
b. Party has substantial need for the materials to prepare its case
c. Cant obtain comparable or identical info without undue hardship
iii. Absolute Immunity: 26(b)(3)(b), Some things are never discoverable, including attorneys thoughts
such as mental impressions, conclusions, opinions, or legal theories or other rep concerning the
litigation.
1. This protects whats left of adversarial process and is anti-free riding rule (we want attys to
do their own work and want to give candid advice)
iv. 26(b)(3)(c)- Some things always discoverable--Can always get your owns statements (usually talking
about clienets or witnesses). You say something to atty, can go request copy of your statement.
v. Hypos
1. Bloom seeks memo written to me by atty, giving me candid assessment of my legal
claimsBloom cant get it since covered by WPD (mental impressions) and privilege
2. Bloom wants transcript of an interview that my atty did with eye witnesshe can get it if it
is otherwise discoverable, necessary, and cant get it without undue hardship
3. My atty involuntarily discloses info to other party he didnt mean toHe can ask for it back
under Rule 26(b)(5)(b), which doesnt always work and if does, other party designs around it
vi. Hickman v. Tyler (1947)
1. Facts: 5 of 9 crew members drowned when tug sank. Public hearing held where survivors
examinedtestimony recorded, available for all. Ds attorney interviewed survivors later in
prep for possible litigation. P tries to discover the materials prepared from the conversation
and counsel for D.
2. Holding: Party seeking to discover material obtained by adverse partys counsel in prep for
possible ligtigation must show justification for such production. Material P seeks is not
covered by atty-client priviliege but constitutes work product of the lawyer. No discovery
since no necessity/justificationinfo here is available elseware (public hearings). Policy:
other party should not benefit from wk and wits of the other side in our adversarial system.
g. Experts (26)(b)(4)-experts are common and very persuasive on judges/juries. 2 types of experts:
i. Testifying experts (26(b)(4))
1. Must disclose names of people they think might testify at trial to the other side (Rule
26(a)(2)) and must give copy of their report.
2. May depose testifying experts (Rule 26(b) (4))get 10 depositions
3. Rationale: no surprise at trial, efficiency (effective cross-examination), liberal discovery
ii. Non-testifying experts (26(b)(4)(b))1. No discovery of facts known or opinions held by experts who were retained in anticipation
of litigation or trial but are not expected to testify at trial UNLESS
a. Rule 35(b) Mutuality principle for mental and physical examinationsthe other
party can get the report just by asking for it but when other party asks for a copy of
it, he has to make available quid pro quo, waiver of privilege, making him have to
give over his previous doctors reports to you. OR
b. Exceptional circumstances such that it is impracticable for you to get that info or
sufficiently good information otherwise/scene or info cant be reproduced, or
parties behaved less than commendably
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2. If you later decide that the will testify, you must amend pleading and hand over all info.
3. Why limit this info?
a. To encourage parties to seek expert advice
b. To encourage experts to participate (protection/anti-harrasment)
c. Discourages free ridingdo your own work!
4. Thompson v. The Haskell Co. (1994)
a. Facts-P alleges wrongful termination (sexual harassment) that caused depression;
psych report 10 days after her firing was only comparable report within weeks
following firing; D was unaware of suit until later. D seeks report and P sought
order to protect the psychological records.
b. Holding: Discovery allowed. Dr. Lucas was an expert and attained in preparation for
trial, court says this is highly probative of her mental state at the time. Since
unique info that D can get no other waydiscovery allowed.
5. Chiquita International Ltd. V. M/V Bolero Reefer (1994)
a. Facts-Shipper Chiquita P sued cargo carrier D for cargo loss and damages, alleging
crane malfunctions damaged fruit. P hired marine surveyor to examine boat shortly
after it arrived. He is a non-testifying expert. D moves to compel discovery, arguing
that he was a fact witness rather than an expert and that exceptional instances
compelled discovery.
b. Holding: No discovery. Rule 26(b)(4)(b) no discovery of facts known or opinions
held by a non-testifying expert and so anticipates that such an expert may make his
or her own investigation. This does not meet exceptional circumstances b/c D
could have sent own expert. D may have had a better opportunity than P, and even
though info that Ps nontestifying expert had wasnt replicable-no discovery.
To enforce these limits on discovery, we use sanctions, protective orders, and order to compel.
IV.
4. Sanctions usually $$
ii. Rule 37: PERMITS COURT TO SANCTION
1. To get order to compel (opposite of protective order) you have to
a. Meet and confer with other party first
b. Prove that you are entitled to discovery (whereas to get protective order you have to
just show good cause to block discovery, there is higher burden here). (37(a)(2) can get it in any court that has jurisdiction your court or another court where the
deposed is located)
c. If you get order to compel and party still doesnt hand over discovery, you can get
sanctions for violation of order.
i. See Stefan v. Cheney case-they filed motion to compel him to answer
questions, got it, and he still wouldnt answer, violating court order so court
can throw out case entirely.
2. Can take a while: Unlike 26G, there are as many as 8 steps here, taking longer and very
expensive--meet up, file motion, court orders, wait for response, seek sanctions. Regardless,
courts still automatically revert to Rule 37, and between 2 rules, cover most discovery abuses
but not all since some happen before discovery starts /cases even filed (Silvestri and
Zubulake cases). Cant use these rules to punish parties misbehaving before case filed so
court has to use spoliation doctrine, or courts inherent powers.
iii. Courts inherent powers: Covers things before the case is filed. (26/37 only cover stuff afterwards).
1. Spoliation: destruction/significant alteration of evidence/failing to preserve property for
anothers use as evidence in pending or reasonably foreseeable litigation.
a. Test for Spoliation:
i. Duty: Party has duty to preserve evidence and/or to notify (giving
reasonable time to inspect). Party should reasonably should know that the
evidence may be relevant to anticipated litigation
1. Court in Silvestri (below) said that while it was not his car, he had
duty to notify General Motors so breached his duty.
ii. Determine Appropriate Sanctions for Breaching Duty (Adverse Inferences)
1. Culpability: How culpable/blameworthy is party that god rid of
evidence? Was acting in bad faith? If too culpable, then adverse
inference.
2. Prejudice: Will this prejudice the other party? If party is not
blameworthy but the prejudice is very high (like preventing a
defense), extreme sanctions like case dismissal in Silvestri may
apply.
b. Destroying evidence less common since incentives not to spoliatepunishment can
be extreme (lose case altogether), attys deal with each other all the time, plus always
another copy of something.
c. Why have this doctrine?
i. Influence how parties behave in real world
ii. Maintain integrity of the court
2. Zubulake v. UBS Warburg LLP
a. Facts: P sues UBS for gender discrimination and illegal retaliation. Ps production
request sought all electronic documents about her. D only produces 100 pages from
5 email accounts, and she moved for more since parts of tapes missing.
b. Hold: UBS D must make additional disclosures of its internal emails to Pactive
email files and emails saved on optical disks since readily and inexpensively
accessibleD pays. But emails on back up tapes not readily accessible/expsensive
33
to produce, so UBS at its own expense shall produce any relevant emails from any 5
backupt tapes. Motion to compel granted, with cost shifting issue reserved. Court
says there was no spoliation. There was duty, and culpability (at least negligent), but
court wont allow adverse inference since we cant say D especially culpable and
cant say P was very prejudiced because emails not very relevant.
3. Silvestri v. General Motors Corp
a. Facts: P (unsympathetic party) drives drunk and hits a pole. He sues GM for
defective airbags. Attorney doesnt notify GM and neither P nor his atty take steps
to preserve vehicle, and dont notify until 3 years later when P began action.
b. Hold: Court dismisses the case b/c spoliation. Silvestri had the duty to preserve it,
and it denied GM access to the only evidence of the case. A partys duty to preserve
material evidence extends to the period before litigation, when a party reasonably
should know that evidence may be relevant to anticipated litigation, and therefore
the object of discovery.
What if you dont like what happens in discovery? District court disputes on discovery mistakes are not appealable
immediately (but object now so can appeal later). It seems inefficient to require waiting until final judgment/case completely
done, but reasons for waiting are 1) respect for district courts to manage discovery (so be hands off) 2) avoid piece meal
litigations 3) Avoid unnecessary appeals (if you go through trial and still win, you wouldnt appeal that discovery dispute).
EXCEPTION TO WAITING: when parties succeed on writ of mandamus (Schlagenhauf)
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II.
3. Rationale- Shows courts will enter default judgments but greatly prefer to see cases
determined on the merits.
b. Rule 41 - Voluntary/Involuntary Dismissal (plaintiff doesnt engage anymore because new facts undercut
Ps claim or life happensmoving on, running out of money, new priorities)
i. Rule 41(a) Voluntary Dismissal
1. Sought by P
a. 41(a)(i) P can dismiss the case unilaterally just by telling court and parties as long
as Ds didnt file answer or counterclaim (this is incentive for Ds to respond quickly
b. 41(a)(2) must get courts approval if D has answered or filed SJ/all parties agree.
2. By the court-courts will generally grant these motions for dismissal on terms the court
considers proper. On first time, the court adjudicates it without prejudice, so P can go refile
elsewhere, but second time case is filed, it is adjudicated on the merits, so P cant re-file again
3. Texaco Inc. v. Pennzoil: To avoid Texaco, D should always file answer right away so that his
permission is needed before P can dismiss, otherwise P can refuel in more favorable forum.
a. Facts: P filed originally in Delaware seeking injunctions. D opposes injunction but
didnt answer. Court denied the injunction saying P would probably lose.
b. P dismisses the case voluntarily, and re-files in Texas. Wins $10 billionIf D had
answered, P would have needed both D and courts permission to dismiss, which
would have been unlikely.
ii. Rule 41(b) Involuntary Dismissal:
1. If plaintiff fails to prosecute/comply w/ rules or abide courts scheduling orders or cause
unreasonable delay, D can move to dismiss action.
2. Serves as adjudication on merits (unless it has to do with jurisdiction, venue, etc.)
a. Semtek exception to this rule, reads 41(b) very strangely
Alternate Dispute Resolution
a. Settlement
i. Courts are very settlement friendly. See Matsushita. Settlement occurs in more than 90% of cases,
have monetary starting points, and discovery drives up litigation and outcome value.
ii. Advantages/Disadvantages
1. Advantages of Settlement:
a. Consent: justice and consent. Can split the difference (while trial is all/nothing),
everyone walks away with some sort of victory
b. Control Costs/Risk: can more adequately predict (trials are expensive)can stop
paying court fees/witness fees/attorneys fees/stress
c. Systemic: judicial efficiency since courts overburdened.
d. Nuance/Detail: can put pressures on things you wantsettlement allows juries to
give slightly more detailed answre
2. Disadvantages
a. Exacerbates party inequalities: esp. financial, favors the wealthy since they can hold
out, hire better attorneys, paper the other party to death
b. No Legal contribution: no case/opinion to contribute to common law/future cases,
diminishing legal dialogue
c. Day in court: Loss of procedural rightsparties get the final say
iii. Mechanics of Settlement-4 issues to consider
1. Content of contract: should contain how much D will pay for P to agree not to sue/refile.
Drafting must be precise, enforceable, and in writing.
2. Timing Issues-D can make offer of settlement 10 or more days before trial begins (Rule 68)
3. Role of the Court
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a.
private, binding, and non-judicial. Parties mostly have arbitration agreements in contracts
(employment/real estate contracts and even employment applications)
ii. Benefits/Costs
1. Benefits:
a. Control Parties have more control over process, can decide what substantive law
applies and rules of procedure/evidence/discovery, can make entire thing
confidential
b. Costs Parties have more control over costs, although some arbitrators charge a lot
c. Expertise Parties can pick an expert arbitrator, giving more nuanced outcomes
(No req. that must be expert or attorney)
d. Helps Courts/Systematic keep court dockets shorter plus no appeals. Courts
strongly in favor of arbitration but cant arbitrate some issues like securities law,
anti-trust laws, big civil rights cases.
2. Costs
a. Mistake If arbitrator makes mistake, less appellate protection. Hard for courts to
intervene and undo arbitrator decision
b. Less law/precedent-arbitrators can ignore law altogether/decisions not on books
c. Exacerbates party inequalities- Ex. Job applicant cant say I want this job but only if
no arbitration clause)
iii. Federal Arbitration Act lays down how to proceed w/ arbitration. (does not invest federal courts).
Must have another hook to get in the federal court.
iv. Process of fighting an arbitration agreement:
1. Front end (not on the merits) accords with FAA. Agreement enforceable? Relates to
enforceability of the agreement, before any decision on merits. You have pleadings and then
ask courts to go into arbitration.
a. P files D motion P says arbitration contact is unenforceable.
b. Arbitration = contract laws, thus court applies state law. Ferguson and Carter
below different verdicts because different state law.
c. Ferguson v. Countrywide (CA)
i. Facts: P sues for sexual harassment etc. D moves to compel arbitration
pursuant to her employment contract. Dist. court refused to enforce it
under unconscionability.
ii. Holding: No arbitration. Arb. Agreement is unconscionable, and therefore
unenforceable, where it is prereq. to employment, job applicants not
permitted to modify terms, and terms are one sided, favoring employer.
Look at procedural (process through which formed-unequal bargaining
power here) and substantive unconscionability (terms of contract-here one
sided forcing employees to go to arbitration but no employers and
discovery limits unfair). says the agreement is both.
d. Carter v. Countrywide (TX)
i. Facts: P, former and current employees, sue to recover overtime
compensation. D moves to compel arbitration pursuant to indiv.
Agreements signed by employees as condition of employment (agreement
required employees to pay half the arbitration costs).
ii. Held: Ds motion to compel arbitration granted. Not unenforceable on
grounds that employees right to judicial forum under FLSA claims cant be
waived. Payment issue moot since D sent memo saying would pay for most
costs, it is not procedurally/substantially unconscionable just because
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Summary Judgment
a. Standard of Review: De Novo Review. Dispute about law, facts are stipulated, or where one party lacks
evidence supporting critical element of case
b. Rule 56
i. Rule 56(a) claiming party (one that files claims for relief) files w/ affidavits (must be based on
personal knowledge)and can move for SJ on all or part of claim
1. 56(a)(1) can file after 20 days
2. 56(a)(2) or after the other side files SJ motion.
ii. Rule 56(b) defending party may move for SJ at any time before trial
iii. Rule 56(c) TEST--Motions for SJ are to be granted when
1. Any materials/affidavits show that there is no genuine issue
a. Legitimate dispute actually basis for disputecant be willfully blinding.
2. As to any material fact.
39
f.
IV.
inquiring about drug use for big policies trumps the general denials. Parents failed to contest witness
testimony by 2 teammates, so court believes it.
iii. POLICY: Bloom says this case not appropriate under Rule 56 since not drawing all reasonable
inferences in favor of non-moving party. Court may be asking should it go to the jury, rather then could
it. Specific > General.
Abuses of SJ: SJ is used for docket control/case resolution instead of always finding if trier could come out
either way. Courts do this because of (1) logistics (trying to clean docket pressure) (2) psychological reasonsRule 56 doesnt say should, it asks whether finder could come out either way 3) Courts have other ways to
clean upRule 16 below allows court management of litigation generally they think is appropriate, speedy
and 11 and 37 also make more efficient.
Court Management-Rule 16
a. Standard of Review: Abuse of Discretion.
b. Great deal of power to allow the Dist. court to manage litigation (use local rules about calendars) Rule 16
allows court management at trial stage, increase justice by increasing court control/efficiency
c. Rule 16(a); pre-trial conferences court may order parties and unrepresented parties to appear for one or
more pre-trial conferences for open ended list of purposes like expediting disposition, establishing control,
discourage wasteful pre-trial activities, improving quality of trial, facilitating settlement, etc.
d. Rule 16(c): Attendance and matters for pre-trial conference-courts can do things to push parties
alongprocedure drives substance
e. Rule 16(f): Sanctions: Courts can draw adverse inferences or dismiss case
i. Court can sanction party for failing to appear at scheduling or other pretrial conference, showing up
unprepared or not participating in good faith, or failing to obey scheduling or other pretrial order.
ii. How much court intervention is too much?
f. McKey v. Fairbairn
i. Facts-P brings suit for leaking pipe in apt (she slipped) based on breach of duty on lease. Claiming
negligence; mid-trial, tries to amend pre-trial order to include on housing codes violations (she would
clearly win if allowed). ** In earlier stage, could have amended pleadings per FRCP 15 (judge asks to
make sure) Dist. court judge denied her motion and entered DV for D. She appeals.
ii. Finding-Appellate court upheld dist. courts denial to allow amendment after deadline because no
abuse of discretion since w/in judges discretion not to allow amendmenttrial judges have broad
discretion to exclude evidence supporting a theory of recovery not raised in complaint.
iii. Rationale- Judges dont want to help out one side; inconsistent w/ adversarial system. Require case
be outlined in pre-trial order to prevent dragging out of trial. must stay within the agreement.
g. Sanders v. Union Pacific Railroad Co.
i. Facts P sued employer for work-related back injury. Court order setting deadline for pre-trial
conference. Ps attny had delay + missed courts deadline. Judge warned in form that he would
dismiss the case if party missed in Rule 16. At conf. w/ clerk, attny says hes not ready for trial.
Judge dismisses the case Sua Sponte.
ii. Held: Reversed eventually (case not dismissed). A case may be dismissed for failure to comply with
court order if there is prejudice to other party and lesser sanctions unavailable. Ps attys failures
impaired Ds efforts to prepare for trial (so circuit court affirms). Appellate court en banc panel
overturns district courts dismissal of Ps case because clerk presided over pre-trial conference and
moves it to dif. Judge.
iii. Problem was with the process NOT the substance
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V.
of actual partiality, can constitute sufficient grounds for recusal of judge. .i.e. dont go to the
press.
v. Justice Scalia-Recusal in Cheney:
1. Sierra Club wants Scalia to recuse himself since Cheney named party D and they went duck
hunting together, questioning his impartiality.
2. Scalia says while 455 applies to all federal adjudicators, SC justices are different since seat
would be vacant, one vote could be decisive. Says friendship is good thing and Cheney is
sued in his official capacity, not as person, and that you cant let runaway press turn garbage
into standard that leads to recusal.The presumption in favor of recusal is not proper in the
supreme court.
vi. Mental/Physically disabled judges
1. Judges are protected w/ Article 3 Salary Protection, Life Tenure for federal judges unless
they are impeached
2. Risks: Protection.
a. 28 U.S.C. 270(b) certificate of disabilitysaying this person not capable of
performing their function doesnt happen very often.
VI.
Jury Trial
a. Basis:
i. Right to a Jury Trial: Demand Rule 38
1. Rule 38(a) Right to a Jury trial is preserved by 7th amendment or statutes
2. Rule 38(b) any party (P or D) can demand in writing a jury trial in pleadings or 10 days
after the last pleading directed to the issue (usually within 10 days of an answer)
3. Rule 38(c) can demand jury trial on all parts or just some parts. If you dont demand jury,
you waive right to jurybench trial default
4. Rule 38(d) if you make demand, you dont need other partys permission. waived if not
requested you can also withdraw your demand w/ consent of other pty
th
ii. 7 Amendment:
1. Right to jury trial in suits at CL shall be preserved and no fact tried by jury shall otherwise
be re-examined in any court of the US, than according to rules of common law.
2. 7th Only applies to federal courts. States have their own rules and are less generous in
granting jury trials since its more expensive and states have less resources
3. Preserves: (1) The right to a jury trial as it existed at the Time -1791 (when 7th amendment
ratified) (2) Law (3) Jury Itself . If claim didnt exist in 1791see Terry case.
4. History two types of cases. We look to British system since codified in 7th amendment
a. Court of common law: Juries available for Legal Relief, $ damages, decided by jury
b. Court of equity: No Juries for specific remedies (injunctions), decided by bench
b. When do you get jury? the TEST
i. Is Rule 38 Satisfied-party proper time/place jury demand? If noBench Trial. If yes then ask
ii. Can this issue go to the jury? separate claims out then look to 7th amendment/Terry case
1. Old Claim look at 1791if right existed then, do what they did then.
2. New Claim
a. Ask if Congress gives answer? - often said in a statute/what Congress wants. If not
specified by Congress, then do
b. Historical Analogy Test 2 part conjunctive test, but remedy more important
i. Find Closest Analogy to Claim that Existed in 1791 and
ii. Examine Remedies Sought (legaljury, equitablejudge)
43
3. Capacity and expertise-missing 3rd element Would judges or juries be better suited to hear
this type of claim based on expertise and reliance on outside knowledge?
iii. Chauffeurs, Teamster v. Terry 1. Facts: 27 ppl w/ seniority status lose their rights/fired. They are part of a collective
bargaining agreement and unhappy with result, filed action against union D, contending that
D breached its duty of fair representation by only representing 2 or their 3 claims. D moves
to strike Ps jury demand.
2. Held: Ps get jury. Ps in fair representation suit against union are entitled to a jury. 2 issues
here1)whether McLean breached collective bargaining agreement (like breach of contract
action which gets jury) and 2) whether union breached duty of fair rep (new claim but using
HAT- like breach of fiduciary duty by trusteean equitable action). So issues are both legal
and equitable, but remedy sought is back pay (like $ damages), so more like one of law,
getting jury.
3. REASONING: This is a New Claim. Congress doesnt tell us, so the court applies the
H.A.T. the court reasons that it is the most similar to trustee. They are also seeking
monetary damages, thus the this is legal relief Jury Trial is granted.
iv. Markman Case --- Deviation from norm Functional/ Consequential focused analysis.
1. The court decided Judges are better suited in Patent cases. --- the Patent case depended
more on complexity, intricate, etc -- i.e. Better to have Judge to figure it out.
c. Order of Operations for partial jury cases
i. Jury claims precedes judge, according to Beacon, and jurys findings would control as to any
common factual issues in the rest of the litigation.
1. This may be an incentive for parties to include legal claims to get a jury.
ii. Amoco Oil Co. v. Torcomian:
1. Facts: Torcomian D took over service station/tried to become franchisee of Amoco P.
Amoco P sues for 6 different claims, seeking ejectment and lost profits as result of wrongful
possession. At beg. of trial, P sought to orally amend complaint to delete portions seeking
money damages to prevent D from getting jury trial. D filed counterclaim for breach of
contract, seeking damages. Trial court ruled for P, saying no jury, and D appeals.
2. Held: Some claims get jurynew trial granted (error not harmless). Equitable main claim
cannot preclude jury trial on legal compulsory counterclaim. Court looks at all the claims
asserted (esp. compulsory claims). The district court sent all the claims to a bench trial, but
the App. Court decides that there were legal claims need to go to the jury. The court should
separate the claims. When case has both, party still entitled to jury trial on legal claims. New
trial-jury trial goes first, then bench.
iii. Parkland Hosiery v. Shore: Where a judge enters a judgment on an equitable claim, that judgment will
control, and thus preclusde a jury trial on any subsequent legal claim arising from same issuehere,
the judges finding in a previous equitable suit controlled the second action.
d. Jury Trial Basics
i. Abuse of Discretion Standard
ii. Why have Jury? -- Positive/ Negatives
1. Sociological: a better cross-section of people. Benefits of collective decision making.
Wisdom of crowds leading to better outcomes.
2. Political: jury is safeguard of people, a check on govt, can nullify laws by preventing
enforcement
3. Historical: 7th amendment. Its what we do.
4. Social: jury verdict confers social legitimacy on verdict since by cross section of people.
5. Practical/tactical: People take tactical advantage of it, takes a lot longer, costs a lot more and
a lot of attorneys believe that it is more bending to emotional appeals.
44
iii. Size: Rule 48 - as low as 6 jurors, and as many as 12 (often have +2 alternatives).
iv. Decision Making Limits: Must decide unanimously in federal courts unless parties stipulate otherwise
(which is rare) + supposed to follow judge instructions.
v. Who qualifies to serve on jury?
1. Venire random calling from public records to get jury pool of qualified 50-100 people.
a. 28 U.S.C. 1861-1881 rules of venire
i. Has to be US citizen, have lived in relevant judicial dist. for over year, must
be literate and speak English, must be non-felon or restored.
2. Voir Dire the process by which you question prospective jurors, trying to figure out when
to use challenges to ultimately choose jury. In fedl court, judge asks questions, in state
courts, attys ask questions.
a. Goal: to obtain an unbiased Jury. / Reality: the attnys are using it get favorable jury.
b. Challenges: 2 ways to shape the jury
i. For Cause - ill-suited for a particular suit (kind of like recusal)juror has to
show some bias/financial stake in litigation/prejudice
1. Must tell the court why a particular juror should be removed for
cause.
2. You get as many for cause challenges as you need.
ii. Peremptory: for anything: except for race, gender or religion.
1. No explanation necessary.
2. Get 3 peremptory challenges you can use at anytime.
3. To challenge peremptory challenge
a. Step 1- Must make prima facie case of discrimination by
showing a pattern
b. Step 2- Other party can rebut by articulating neutral
reasons (like he squirmed when I showed pics, or
didnt like his hair cut.)
c. Step 3- Moving party must rebut, Show that it was a
pretext hard to win since courts very willing to accept
most peremptory challenges
c. Thompson v. Althemer : biased jury is structural error that is harmful error always
i. Thompson sued employer, alleging racial discrimination. During voir dire,
juror state she is business owner which may sway her judgment. Judge
refused to strike juror for Ps cause, and P didn't have any peremptory
challenges left. Case tried, and jury found for D employer. P appealed,
saying juror should have been struck for cuase.
ii. HOLD: Juror must be excused for cause if they hold belief that would
impede them in giving due weight to evidence and following instructions.
The judge should have asked her specifically if she can separate an average
case (which she sees as spurious), from this particular case. Harmful error
presumedreversed and P gets new trial.
vi. Court Controlling the Jury Devices
1. Before trial:
a. Control over discovery - controls the evidence.
b. Rule 16 courts manage structure and time of litigation.
c. Rule 12B6-Motions to Dismiss for failure to state a claim
d. Rule 56-Summary Judgment
2. After Trial
a. Judgment as a matter of law
45
b. New trial
3. During Trial **focus**
a. Courts can exclude evidencewhat jury decides influenced by what it sees
b. Jury preparation-courts assist in creating jury
c. Jury instructions -- Rule 51 limits what juries consider and dont considertrying
to satisfy 2 audiences
i. Jury-often not lawyers, need straightforward instructions
ii. Appellate courts-instructions must be technically accurate
d. Judge's relationship w/ the Jury -- jury wants to please the judge and looks for cues
from judge
e. Directed Verdicts-see next pg.
SECTION 7: TRIAL
Get juryopening statementsevidenceclosing statementsjury instructionjury deliberationverdict (general or
specialjudges prefer general)
*Only 2-3% of federal civil cases actually go to trial. Note: Bench trials dont give verdictsthey give opinions divided into
findings of facts and conclusions of law (required by Rule 52 to facilitate appellate review)
3 Standards of Appellate Review
1. Abuse of Discretion
2. Clear error-findings of fact reviewed on clear error, deferring to trial court. Reviewing court must be left with definite and
firm conviction that mistake was made
3. De Novo-conclusions of law reviewed de novo, no deference to trial court
I.
II.
III.
Directed Verdicts
a. Even when looking the light most favorably to the other party, there is only ONE reasonable way it comes
up (similar to summary judgment).
i. Differences from SJ:
1. Timing: Direct verdict comes during trial after the other side presents evidence.
2. Evidence presented: different types (more or less)
3. Relevant Rule: Rule 56 for summary judgment, Rule 50 for Directed Verdict
b. Rule 50 Directed Verdict-decision by judge that the claim can only come out one way, that there is only one
reasonable set of inferences so he takes decision away from jury.
i. Standard of Review: Do Novo Review
ii. Rule 50(a): applies to jury case, claims or defenses, all or part
1. The legal standard is "reasonably jury would not have a legally sufficient evidentiary basis".
All reasonable inferences in the light most favorable to the non moving party.
2. Timing: 50(a)(2): Party can request directed verdict after other side is fully heard but
before the jury instructions. Opening statementsP presents all evidenceD can move for
DVD presents evidenceeither party can move for DVclosing statementsjury
instructions (can no longer move for DV)delib./verdictpost trial motions like JNOV
iii. Rule 50(b): Can file post-trial motions 10 days after- JNOV and New Trial.
1. They are renewed, and thus require pre-req of Direct Verdict motions before JNOV/NT.
iv. DVs are like SJ because look at evidence in favor of non-moving party but different because
1. SJ is before trial, DV during trial.
2. SJ is vaguer, more predictive, no evidence given yet whereas DV made on evidence already
seen at trial.
3. Different rules-SJ is Rule 56, DV is Rule 50 (judgment as matter of law applies to SJ, DV, &
JNOV motions).
v. Why would court deny DV motion?
1. Reasonable jury could come out either way.
2. Efficiency: Courts may let this play out and wait until after the trial for efficiency reasons
If Dist. Court denies DV motion, but jury enters wrong result, judge can issue JNOV, and
appellate court affirms JNOV or remand using jurys decision w/out ordering new trial.
c. Pennsylvania Railroad v. Chamberlain (see also Reid above)
i. Facts: action for negligence by train brakesmans heir against the RR contending that certain rail cars
collided killing the brakesman. P has 1 witness, D has 9 witnesses. Ps witness did not see the
collision (requires inference); Trial court entered DV for railroad company D. Reversed on appeal.
ii. HOLD: DV for D RR is appropriate (affirming dist. court). Where there is true conflict of
testimony, evidence must be left the jury, but here there was no such conflict (like Bias case)
1. The court is making credibility determinations here. Asking should instead of could.
JNOV and New Trial devices courts use after trial--must file directed motion during trial.
a. Both are usually filed together and courts can allow a new trial on just a part of it (rare).
i. JNOV post-trial judgment as a matter of law
1. Standard of Review: legal, so De Novo Review
2. Rule 50(b) same idea as Directed Verdict, just different timing. Ask if only one reasonable
outcome after drawing all reasonable inferences on the non-moving party.
3. The legal standard is "reasonably jury would not have a legally sufficient evidentiary basis".
4. Timing: You have 10 days after trial to file your JNOV motion (renew DV motion)
5. Cant file JNOV if didnt properly file DV during trial. Why have a conditioned precedence?
a. Efficiency Since so obvious, should have given dist. court opportunity earlier.
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b. 7th Amendment:- no fact tried by jury shall be retriedyou cant reexamine facts
found by jury unless common law allowed it. Common law allowed DVs but not
stand alone JNOVs so we put them together, saying its just renewal.
ii. New Trial Rule 59can be all or part do-over
1. Standard of Review: Abuse of Discretion
2. Timing: You have 10 days after judgment to file for new trial.
3. Can grant a new trial for any reason a new trial has heretoforebeen granted can be
granted on two grounds
a. Errors in Procedure:
i. Errors made by the court (jury instructions, evidence, bad arguments, etc.)
that might have had real impact. Not about what the jury did.
ii. Can do it Sua Sponte. Rule 59(d)
b. Errors in Outcome: About what jury did. 2 different types
i. Jurys verdict legally untenable, internally inconsistent (Ex. special verdicts)
ii. Jury reaches a dubious result running against great weight of evidence.
(similar to JNOV but judge not confident enough to say jury got it
right/wrong). Lind case identifies 2 factors.
1. Complexity of case (too hard for jury to understand)
2. Character of evidenceis this type of evidence jurors can deal with
well? Ex. Jurors understand witness testimony but many not heavy
documentary review.
4. Rule 50(c): If court grants JNOV motion, it must rule on any new trial motion. JNOV
motion is final even if new trial granted. If JNOV motion appealed, could then get new trial.
5. Lind v. Schenley Industries
a. Facts-P sues employer D for breaching oral promise to give him increase in
pay/share of commissions. P and his bosss secretary testify to such promises, Ds
agents deny. Jury found contract was created/awarded damages to P. Trial court
granted Ds motion for JNOV, and alternatively for new trial because against great
weight of evidence.
b. Held: Reversed in favor of Pno JNOV for D and no new trial. Nothing indicated
that jury was not properly presented with correct evidence, and judge cant nullify
jury verdict by granting new trial if evidence admits of conclusion made by jury (we
trust jury to interpret witness testimony). Here, the problem was error in outcome.
Judge shouldnt be looking at the veracity of the witnesses like the 13th juror. It is
improper for judge to order new trial on grounds that verdict was against the weight
of the evidence, so dist. court abused its discretion.
c. Factors: type of evidence is it hard to figure out or no? since this case is about
the witnesses, the jury can figure it out.
IV.
Jury Deliberations
a. Reexamination clause of the seventh amendment provides substantive protections for Jury D.
b. 2 Principles of Jury Deliberation
i. Black Box idea: what happens in the jury, stays in the jury.
ii. Anti-Tampering idea: Jury should not be tampered by outsiders, the judge or attnys. Contradiction:
How can figure out if tampering if jury in black box?
iii. Policy: WHY have this?
1. History: Have had it since early 20th century.
2. Finality: Have to trust jury at some point
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3. Protect Jurors: stop losing parties from harassing the jurors and public scrutiny (dont even
allow jurors to waive it)
4. Protect deliberative process: (kind of like privilege).
iv. Peterson v. Wilson
1. Fact: P filed suit after fired as grant directors and jury awarded him. Ds moved for new trial,
and dist. court granted it because of comments mad eby jurors after verdict indicating they
had disregarded courts instructions. Case was retired and Ps claims rejected by 2nd jury. P
appealed the grant of new trial.
2. Hold: Held for P employee, no new trial, he gets first trial verdict. The admission of juror
testimony to impeach jury verdict is impermissible. Trial ct judge impermissibly interviewed
jurors, for reason besides determining if there had been extraneous influences, and then
admitted that info as evidence and made decision outside presence of parties and counsel.
a. Ex Parte: Judge impermissibly met with jururs w/out presence of the parties.
b. Judge cant use this info anyways (Fed Rule of evidence 606b-info about
deliberation cant be used. (see rule right below)
v. Rule 606(b): Only applies to Jurors but in both civ. and crim. trials. Cant use juror testimony about
jury deliberations to impeach verdicts those jurors have reached.
1. Jurors cant testify about internals of deliberation: " a Juror may not testify as to any matter
or statement occurring during the course of the jury's deliberation as to the effect of
anything upon that or any other juror's mind or emotion as influencing the juror to asset to
or dissent from the verdict.
2. Can testify about EXTERNAL stuff:
a. Home projects (evidence not introduced), the use of the bible is external.
b. Outside influences like bribes, threats, etc
c. Drugs, etc.. is not external (see Tanner)
vi. Tanner:
1. D gets convicted for fraud against the U.S. government. Jurors contact Ds attny to testify
about the jury conduct alcohol, drugs, drug dealings, jurors falling asleep, etc. Ds file for
new trial and court denies it citing rule 606B.
2. Hold: Supreme Court says these are Internal factors, like a virus, bad food, or lack of sleep
within the scope of Rule 606(b). Justice OConner also redefines jury deliberation as entire
trial/any jury talk during thetrial (broad definition)
V.
Appeal
4. Ex. New TrialYou file for new trialif you lose motion that is final judgment and you
can appeal immediately. If you win new trial motion, something left for dist. court to do
(new trial) so other party cant appeal.
JNOV
New Trial
Final Judgment?
L
L
Yes
W
L
Yes
W
W
Yes (50C)
L
W
No
*50(c) you have to grant new trial conditionally even if you grant JNOVdoesnt change
finality of JNOV
5. Liberty Mutual v. Wetzel
a. Facts: P Wetzel sued Liberty Mutlas D employee insurance benefits and maternity
regs discriminated against women. She seeks $, attys fees, and injunctive relief. P
wins partial SJ on the merits on issue of liability only. Damages/relief not yet
issued. Circuit court found Jurisdiction via 1291.
b. Hold: No final judgment so not appealable. Still things for the D court to do. Rule
54B is limited expressly to multiple claims actions in which one or more, but less
than all, of claims have been finally decided. Does not satisfy any of the exceptions
(not 54(b))b/c there is only one legal claim for relief.
ii. 4 EXCEPTIONS to FJR (when you can appeal immediately): Policy:cant allow exceptions to
swallow FJR.
1. Rule 54(b): (see Liberty Mutual above) Immediate appeal allowed when case has lots of
things going on and court says its done with this part/you can appeal this part right away
(partial FJR). 2 part conjunctive test
a. Multiple Claims and/or Multiple Parties (3 or more) +
b. Expressed determination (written) of FJ on claim/ no just reason for delay
2. 1292 Interlocutory appeals for Injunctions or 4 big Qs
a. 1292(a): Can appeal decision granting, rejecting, or modifying Injunctions OR
i. Example: Southwest Voters (yes court allowed appeal because there was
decision denying request for injunctive relief), Wetzel (appeal not allowed
since no ruling on injunctive relief)
ii. Does not apply to TROs since they are time limited (10 days), mitigating
effect of TROs.
b. 1292(b): Can appeal immediately when 3 Big Questions- Test
i. Issue is one controlling question of law (central to merits, unlike collateral)
ii. Substantial ground for difference of opinion (look for other courts to
disagree, not enough that you just disagree with court)
iii. Immediate appeal might materially advance termination of litigation (FJ)
1. 1292(b) is very expansive (many things meet these 3 things) but not
used often because of limits:
a. Text: Dist. court must certify (write it down that it meets
these 3 things), Circuit court has discretion not to write it
down and usually thinks it got it right. Parties must apply
for immediate review within 10 days after entry of the
order and appellate court can deny thisso you have to
get courts at both levels to agree you satisfy 3
requirements.
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i. Party seeking writ has no other adequate means to attain relief he desires
ii. Right to writ is clear and indisputable/unmistakable-its obvious what
lower court is doing is wrong
iii. Writ must be appropriate in circumstances-even after you show you are
entitled to something, have to show its appropriate/within courts discretion
employee said problems were minor and did not stem from manufacturer,
and P did not rebut these conclusions. Dist. court granted D summary
judgment, and on appeal, Ps atty objected to admission of expert report
since not an affidavit or sworn statement required by Rule 56E, so was
inadmissible hearsay.
ii. Hold: 6th Circuit allows report, because while there is a mistake, it doesnt
matter. Admission of expert report is harmless error where opposing party
knew the contents of the report, and remanding the case would result only
in change in format of the report. P could have reubutted it but did not.
So even though dist. court relied on inadmissible evidence to grant SJ for
D, court affirms since it was harmless error, leaving error in place.
1. Rule 61 Harmless error-default is dont reverse unless justice
requires (if causes harm)
2. Sec. 2111 ignore errors that dont affect partys substantive rights.
3. Policy: efficiency. Why worry about something that wont matter?
VI.
Preclusion
a. Basics:
i. Outcome or decision in the first case will "preclude" litigation in a second case.
ii. You can waive preclusion affirmative defense if you forget to bring it up in enough time.
iii. Due Process (get at least one chance) vs. Preclusion (Limits a party to the one chance) Why?
1. Policies:
a. Efficiency. It is economical to do it only once/conserves judicial resources (favors
winning parties and the courts)
b. Finality/Repose: want ppl to be able to rely on previous court decisions.
c. Fairness: due process ensures you get your opportunity, but preclusion protects Ds
from having to defend multiple times.
d. Consistency/Comity: respect for judgment and respect legitimacy. (cant appeal w/
2nd case - Martino)
iv. Most are subsequently filed cases, but for concurrently/simultaneously pending cases (both pending
in federal dist. court at same time)
1. Related Case Principle: Judge can issue related case order to bring cases under 1 judge (only
works if all in same federal district)
2. First File Rule: If in different districts, related case orders dont work so courts use first file
rulefirst case filed goes first, 2nd case waits and goes second.
a. Policy behind this rule? Consistency in judgment and efficiency (one judge can
organize discovery but cost is that there are races to courthouse).
b. Claim Preclusion Res Judicata
i. When looking for preclusion, it pops up in second case as Ds affirmative defense. D raises
preclusion as affirmative defense via 8(c) in its answer + makes motion for SJ (attaching judgment
from 1st case).
ii. Court 2 tries to follow the laws of the rendering jurisdiction of Court 1 (preclusive effect)
1. Statefederal: Section 1738 Full Faith and Credit Actproceedings in one state have the
same affect in other states. Ex. If MO state court would say precluded, federal courts have
to say claim precluded.
2. StateState: Full Faith and Credit Clause of the Constitution
iii. Recipe for Claim Preclusion
1. Both cases involved Same Claim
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a.
2.
3.
4.
5.
Look at court 1s definition of claim Primary Rights vs. Restatement 2nd because
what first court does controls.
b. (1)Federal Courts use Restatement 2nd definition: Claim defined broadly and
includes anything that was related to the event/transaction that gave rise to the
initial suit, regardless of whether they litigated it or not. Majority of states use this.
c. (2)Some states (like CA, IL, and NY) use Primary Rights: narrower definition of
Claim focusing on common facts, evidentiary requirements, and legal arguments
(how much overlap between claim initially brought and claims could have brought,
do you have to prove same things in first case to win second case?)
i. Frier
1. D police had garage tow Friers P gar because it was parked in
trafficP didnt receive citation or hearing and
2. Case 1: P sued D and garage in state court for replevin (to get car
back). City wins-judgment on the merits.
3. Case 2: P filed 42 USC 1983 suit in federal court, seeking equitable
relief and compensatory and punitive damages from D for
depriving him of car without due process. Dist. court dismissed
for failure to state claim, and P appealed, arguing no preclusion
since under dif legal theory than first state court action.
4. Issue: Is the second case precluded?
5. Hold: Ps claim precluded since 2nd claim arose out of same
transaction. It was the same claim-both alleging same conduct that
D towed and detained cars. Illinois applies primary rights
approach which instead of just connecting back to same
transaction, is harder because looks for same operative facts.
Involved the Same Parties required for claim preclusion but not issue preclusion
a. Can Include: The named parties, Person in Privity "so identified in interest with
another he represents the same legal right" (successive property rights, survivors of
estates, insurer and insured, trustees), if someone signed expressed
agreement/contract to be bound, procedural/virtually represented parties (class
actions)
b. Searle
i. Case 1: Divorce caseEdlean v Woody. Slaugh House is 1/2 of Woody's.
Edlean wins entire property.
ii. Case 2: Searle Bros. the partnership sues Edlean claiming undivided onehalf interst in it. Trial court held precluded.
iii. Hold: Though interest of father were fully defended in divorce case and 2
sons had half interest in house, sons interests werent same as fathers, and
they could not have joined the suitnot same partiesno claim
preclusion. The father is not an agent of the party sons may sue.
Final Judgment on the first claim - any court (even trial). In federal court decision is final
when trial court is done, even if appeal pending. In practice, wait and see what happens on
appeal.
Judgment on the merits: ex. Verdict, SJ, JNOV, motions to dismiss, Consent Decrees,
12(b)(6) motion, with prejudice = on the merits.
a. Not on the merits: personal jurisdiction, service, venue,
Judgment by a court of competent jurisdiction
a. Apply the law of the 1st court. It must have had jurisdiction to issue decision in the
first place.
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