Rule 12(b): Defenses by Motion

1) subject-matter 2) personal 3) venue 4) process 5) service 6) state a claim 7) join

12(g)(2): cannot make another motion under 12 if omitted from earlier 12 motion
12(h): waives defenses if omitted or failing to make it by motion or include in a responsive
pleading or amendmen
12(h)(3): court must dismiss action at any time if it lacks subject-matter juris
If argue that complaint doesnt state claim arising under federal law12(b)(6) if theres
any arguable basis for a federal claim, if not then 12(b)(1)
Personal Jurisdiction
International Shoe: Minimum contacts not offending traditional notions of fair play and
substantial justice claims from quality and nature of act (specific jurisdiction)
General Jurisdiction: substantial and continuousany claim [domicile, incorp/PPoB]
Hanson: D purposefully avails itself of privilege of stateinvoke benefit&protection
WWVolkswagon Factors: 1) forum states interest in adjudicating 2) plaintiffs interest in
convenient forum 3)efficient resolution 4)inconvenience to D
Foreseeability reasonably anticipate being haled into court, efforts of manufacturer to
serve the market for its product in the State
Burger King: K negotiated/performed in statepurposeful availment
Asahi: OConner: place in stream of commerce is not enough; Brennan: yes
Designing product for market, advertising, sales agent in Stateintent to serve state
Calder Effects Test: D expressly aims tortuous conduct at forum state and aware his
intentional conduct will cause harm in forum state
Burnham (Transient Jurs): physical presence alone is OK (tradition of legal system)
Carnival Cruise (Consent): forum-selection clauses OK if not meant to discourage, PPoB
in forum state, no fraud, Ps concede they had notice of the clause
Mullane: Notice reasonably calculated to inform those affected, or if not available, the
form chosen is not substantially less likely to give notice than customary ones
RRule 4 Summons: 4(d) waives, 4(e) for individuals, 4(h) for corporations
Long-Arm Statutes: Provide more limits for juris. sending of e-mails is out of state
Venue/Forum non Conveniens
1391: (a) is for diversity [where any D resides if all Ds are in same state, substantial part
of events, where D is subject to PJ] (b) is for non-diversity [same except where D can be
found], (c) corps reside in district where subject to PJ if district was a state
Forum Non Conveniens: Piper: Strong presumption in favor of Ps choice of forum can
be overcome by factors. Private Interest Factors: ease of access to sources of proof,
process and cost of obtaining unwilling witnesses, view of premises, other practical
problems making trial easy, fast, and cheap; Public Interest Factors: administrative
difficulties from court congrestion, local interest in having controversies decided at home,
forum state with correct law for diversity, avoidance of problems in conflict of law/foreign
law, unfairness of jury duty in unrelated forum
Transfer: For the convenience of parties and witnesses, in the interest of justice
1404: Change of Venue when court has PJ and venue
1406: Cure or Waiver of Defects: If court is lacking PJ or venue
1631: Transfer to Cure Want of Jurisdiction
Subject Matter Jurisdiction
Federal Question: 1331: Arising Under
Mottley: Well-Pleaded Complaint Rule: P must present federal question on face of
complaint and must be necessary to Ps case
TB Harms: even though claim is created by state law, could arise under US if complaint
discloses a need for determining meaning/application of such a law
Diversity: 1332: $75k, corp is citizen of incorporation/prinicipal place of business
Hawkins: presumption against federal jurisparty seeking to invoke it has burden of
proof, domicile is physical presence + intent to remain
Redner: citizenship is measured by date complaint is filed, if against foreign state, party
must be citizen not merely resident
Strawbridge requires complete diversity
Corps: Nerve Center or Everyday Business Activities
Supplemental Jurisdiction
United Mine Workers: Common nucleus of operative facts (entire action = 1case),
discretion if state law dominates, sensitive/novel state issues, confusion to jury, whether
fed issues are resolved early
Aldinger, Kroger, Finley: statutes must confer jurisdiction
1367: a) so relatedsame case/controversy b)if diversityno supp juris over parties
under rule 14,19,20,24, or where it would destroy diversity; c) discretion: novel/complex
state issue, state claim predominates, district court dismissed all claims that gave it juris, in
exceptional circumstancescompelling reasons
Removal
1441: a) remove if district courts have original juris; b) fed question cases are removable
without regard to citizenship, diversity cases are removable only if no Ds are citizen of
state the action is brought in; c)if a fed question claim is joined to state
claimsremovable; f) fed court is not precluded bc state court lacked jurisdiction
1446: a) file notice of removal with short&plain statement of grounds for removal; b)
within 30 days after receipt of complaint, or 30 days after receipt of amended complaint
unless under diversity jurisdiction and 1 yr after commencement of action
1447: c) motion to remand on any defect other than lack of subject matter juris within 30
days after filing of notice of removal; d)remand of case is non-reviewable unless civil
rights case (1443); e) if P joins Ds that destroy subject matter juris, court can deny joinder
or permit it and remand to state court
Metropolitan Life: Congress pre-empts area so complaint is necessarily federal
Caterpillar: failure to remand case from improper removal not fatal if federal
jurisdictional requirements are met at final judgment
Erie Doctrine
Law to be applied is law of the State no general federal common law
Diversity must apply conflicts principle of forum state
1652: State Laws as Rules of Decision
York Outcome Determinative Test: fed court is free to ignore state procedural rules
unless it would substantially change outcome

Byrd: If outcome determinative, are there affirmative countervailing considerations of

federal judicial administration (right to jury is essential for US Constitution)
Rule must be bound up with definition of rights&obligations of the parties and not merely
a form and mode of enforcing to be followed
Hanna pt 1: State law unless failure to do so would likely result in forum shopping
between state and fed ct bc of likelihood of dif outcome
Hanna pt 2: if a rule is not procedural or is unconstitutional then state practice applies
(how to serve process-federal) cant impinge on substantive rights
Certification has fed ct ask state sup ct to answer question on state law
Incentives to Litigate
Punitive Damages: Oberg: Constitution imposes substantive limit on awards
Gore Guideposts: 1) degree of reprehensibility of defendants conduct (harm was physical
or economic, indifference/reckless disregard of health/safety of others, repeated actions or
isolated, result of intentional malice, trickery); 2) disparity between harm suffered and
award (single digit ratio unless egregious act with small economic damage amount);
3)difference between award and similar civil penalties
State Farm: cannot punish D for acts committed outside State
Injunctive/Declaratory: P must demonstrate legal remedy (damages) inadequate
Sigma: balance hardship on P if relief is denied with hardship to D if it is granted
2201 authorizes declaratory judgments, and procedure is Rule 57
Preliminary Injunction/TRO Rule 65: a1) requires notice, a2) hearing can be
consolidated with trial on merits, b)1TRO without notice only if irreparable harm before
adverse party can be heard movant must give security to pay cost/damage
Abbott: party seeking prelim injunction must show: 1) likelihood of success on merits and
no adequate legal remedy and suffer irreparable harm if prelim relief is denied; then
consider 2) balance harm to each if granted/denied and public interest
Sliding Scale: more likely P will succeed, less balance of harm needed
Fuentes: must give D hearing before being deprived (even temporarily) of significant
property interest, except extraordinary situations with valid govt interest
Complaints
Rule 3: A civil action is commenced by filing a complaint with the court
Rule 8: a) state jurisdiction, claim that entitles relief, demand for relief sought; b) respond
with defense to each claim and admit/deny allegations( general denial, deny part, lack
knowledge/info=denial, no denial=admitted); c)affirmative defenses if mix up defense
and counterclaim the court must if justice requires treat it as if correct; d)party can state as
many claims/defenses it has regardless of consistency
Rule 9: pleading special matters
Rule 10: each claim founded on a separate transaction or occurrence and each defense
other than a denial must be stated in a separate count or defense
Rule 12(b) lists defenses that must be made by motion before pleading
Haddle: 12(b)(6) attacks legal sufficiency of claim (even if true, law affords no relief
Ashcroft (Twombly Rule): Legal conclusions must be supported with factual
allegationsPlausibility standard if P pleads factual content that allows court to draw
reasonable inference (more than a sheer possibility); recitation of elements are conclusory
and not entitled to be assumed true; applies to all civil actions
Ethical Limits
Rule 11: b) presenting a pleading, written motion, or other paper (signing, filing,
submitting, later advocating) certifies that to best of persons knowledge, info & belief
formed after an inquiry reasonable under the circumstances: [1)not presented for improper
purpose (harass, delay, increase cost); 2)legal contentions warranted by existing
law/nonfrivolous argument for modifying law; 3)factual contentions have evidentiary
support or will likely have it after discovery; 4) denials are warranted by evidence or
reasonably based on belief or a lack of info]; c)court can impose sanction on attorney,
party, or law firm(must be held jointly liable for employee) either by motion or on courts
initiativemust deter repetition of conduct; cannot impose monetary sanction on its own
Walker: didnt give all info on diversitypoor knowledge of well-established law
Mattel: filing meritless claim without reasonable investigation violates rule; sanctions can
only be limited to paper (not conduct in depositions, behavior, etc)
Responding to Complaint
Rule 12: a) 21 days after service or 60 if signed waiver, 21 days for counterclaim, US gets
60 days, 14 days after a motion is denied; c)judgment on the pleadings; d) if matters
outside pleading are presentedtreat as summary judgment; e)motion for more direct
statement; f)motion to strike; g)joining motions - if made a motion under12, cannot raise a
defense or objection under 12 that was omitted; h)waiving
Default: failing to respond to a complaint enters default judgment against them
Zielinski: Denial is ineffective when only portions of paragraph being denied actually
didnt happenshould make clear what he is denying/admitting
Ingraham: Whether a defense is affirmative: logical relationship between defense and the
cause of action asserted by P (necessary element of Ps cause of action?, which party has
access to evidence, policy considerations)no unfair surprise
Amendments
Rule 15: a) amend 21 days after service, otherwise only with consent, must respond within
14 days; c)An amendment relates back when: [1)statute of limitations allows it; 2)it asserts
claim/defense that arises out of same conduct, transaction/occurrence; 3)for parties: had
notice within 120 days & knew action would be brought to him
Beeck: Burden is on party opposing amendment to show prejudice, bad faith, or undue
delay (courts generally allow amendments [when justice requires])
Moore: actions after surgery did not relate back to actions before surgery
Bonerb: Amendment that changes legal theory is appropriate if factual situation upon
which the action depends remains same and was brought to Ds attention at pleading
Discovery
Rule 26b: 1)Scope: any nonprivileged matter relevant to any partys claim or defense,
relevant info need not be admissible if reasonably calculated to lead to discovery of
admissible evidence;
2)party must show info is not reasonably accessible bc of undue burden/cost in response to
motion to compel, court could still order discovery if there is good cause, court must limit
discovery if: [i)unreasonably duplicative or can be obtained from an easier source; ii)party
seeking discovery had ample opportunity; iii)burden outweighs likely benefit];

3)Party cannot discover documents/tangible things prepared in anticipation of litigation

unless: discoverable under b1 and party has substantial need and cannot without due
hardship obtain an equivalent, court must protect against mental impressions, conclusions,
opinions, or legal theories, OK for own previous statement
5)If claiming privilege party must expressly make the claim and give description
Rule 26c: Protective Orders
Davis: Other employees complaints of discrimination may be relevant for pretext
Steffan: whether P engaged in homo acts was irrelevant bc case was about statement
26(a) is for required disclosures, 33 for interrogatories, 36 for admissions, 34-5 for
production requests, 27-32 for depositions
Marrese: motion to limit discovery requires comparison of hardship to parties of
allowance/denial
Privilege can be waived by failing to assert it or disclose to a third party
Upjohn: Control Group Test: If employee making communication can control decisions
then he personifies corp and has privilege; broader: middle/lower employees can by
actions embroil corp in legal difficulties and will have the relevant informationprivelege
is greater than convenience of discovering for govt
Hickman: Without necessity/justification to secure written statements, private memoranda,
and personal recollections prepared in course of legal duties, production could be justified
if witness is no longer availablemust show substantial need (for
impeachment/corroboration) and inability to obtain equivalent material
Resolution Without Trial
Rule 41 Dismissal: Voluntary Dismissal by P: before being served answer or stipulation
by all parties, or by court order (without prejudice); Involuntary dismissal by Ds motion =
adjudication on merits; rule applies to counterclaims
Rule 55 Default Judgment: fails to plead or defend
ADR act of 1998 each fed d ct to implement an ADR program
Morgans Foods: Rule 12 gives court authority to order litigants to participate in
mediation & gives judge authority to impose sanctions for failure to comply person with
authority to negotiate must be present and memoranda must be submitted
Federal Arbitration Act: agreements to arbitrate are valid as matter of federal law
Ferguson: Arbitration agreements are enforceable unless grounds that eist for revocation
of any contract procedural unconscionability: oppression/surprise; substantive
unconscionability: compels arbitration for claims employees are most likely to bring and
exempts those that Countrywide would most likely bring, fee provision gives employee
any expense beyond usual costsinsidious pattern
Carter: Strong presumption in favor of arbitrationparty seeking invalidation has burden
of establishing validity (texas law does not hold K unconscionable)
Rule 56 Summary Judgment: until 30 days after close of discovery, opposition to
motion within 21 days after service; no genuine issue as to any material fact judgment
as a matter of law (based on pleadings, discovery, affidavits); affidavits must be made on
personal knowledge&set out facts admissible as evidence
Lundeen: The clear affidavits from the only persons in a position to be aware of a factual
situation can serve as a basis for a summary judgment, as long as affiant is not biased,
dishones, mistaken as to facts and his affidavits are internally consistent
Cross: Summary judgment is not appropriate where inferences parties seek to be drawn
deal with questions of motive, intent, and subjective feelings & reactions
Celotex: No requirement that moving party support its motions with affidavits or other
similar materials negating the opponents claimsburden may be discharged by showing
there is absence of evidence to support nonmoving partys case
Jury Trial
Seventh Amendment: Right to a trial by jury shall be preserved
Rule 38: On any issue triable of right by a jury, a prty can demand it
Suits at common law get a jury triel while courts of chancery (equitable remedies) do
notLook to see whether a given claim lay within common law jurisdiction in 1791
Terry: 1) compare statutory action to 18th centry actions; 2)examine remedy sought as
legal or equitable in nature
Torcomian: joinder of an equitable claim/relief with legal claim/relief will not defeat jury
trial equitable main claim wont preclude jury on legal compulsory counterclm
Questions of law go to judge and questions of fact go to jury
Dobson: interpretation of type of K is question of fact (legal effect is result of facts)
Reid: Where the undisputed evidence of P points with equal force to two inferences, one
of which renders D liable and the other not, the P must fail (Cow)
Rule 50 JML: a)if ct finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the partyjudgment as matter of law (any time before case is
submitted to jury); b)28 days after judgment movant can file a renewed motion for jml
with request for new trial; c)if grants renewed jml, it must conditionally rule on any
motion for new trial
Chamberlain: where there is direct conflict of testimony upon matter of fact, must be for
jury, but here there is no conflict (no direct evidence & 1 testimony is suspicious)
Rule 59 New Trial: a) for any reason one has heretofore been granted (28 days)
Granted when process leading up to verdict was flawed or verdict was unjustifiable
Lind: motion for new trial on ground that verdict was against weight of evidence is
ordinarily nonreviewable bc within the discretion of the trial court (not for procedural
defect leading to verdictstandard is great weight of evidence
Judge can order new trial limited to issue of damages or remittitur/additur
Claim Preclusion (Res Judicata)
Heaney: Former adjudication concludes parties and privies for every matter offered &
received to sustain/defeat the claim and to every matter which might & should have been
litigated in 1st suit ; damage and mandamus not required consolidated
Policy: litigation which is repetitious/inefficient burdens parties/judicial system
1738: Full Faith & Credit
Frier: Narrow Cause of Action Test: evidence necessary to sustain a second verdict would
sustain the first (causes of action based on common core of operative facts)
Modern Restatement Test: Claims arising from single Transaction (matters related in
time, space, origin & motivation) must be litigated in single lawsuit
Rule 13(a) Compulsory Counterclaim: pleading must state claim if it arises out of the
same transaction or occurrence & if party added doesnt defeat jurisdiction

Martino Common law compulsory counterclaim rule: res judicata bars a counterclaim
when its prosecution would nullify rights established in prior action
Gargallo: fed ct determines preclusion by whether state ct would preclude it
Rule 41(b) Involuntary dismissal operates as adjudication on the merits
Semtek: dismissal on statute of limitations does not preclude in states that have a longer
stateu of limitations (preclusive effect in fed diversity action should be same if a state ct in
the forum state had rendered it)
Issue Preclusion (Collateral Estoppel)
When an issue of fact or law is actually litigated and determined by a valid and final
judgment and the determination is essential to the judbment, then it is conclusive in a
subsequent action between the parties, whether on the same or different claim
prevail on civil burden of preponderance does not mean it could for reasonable doubt
Parks General Verdict: if jury could have decided on two grounds, no preclusion
Benson&Ford: Privity: person so identified w other represents the same legal right
A non party will be considered in privity when: 1)nonparty has succeeded to a partys
interest in property, 2)non party who controlled the original suit, 3)if interests were
represented adequately by a party in the original suit; not enough that nonparty supplied
attorney, helped to finance litigation, testified as witness
Virtual Representation: party to 1st suit is so closely aligned with nonpartys interest
A party who has never had an opportunity to litigate an issue cannot be precluded
Defensive CE: P was estopped from asserting claim he had previously litigated
Offensive CE: P is seeking to estop D from relitigating issues he litigated before
Parklane: where P could easily have joined in earlier action or application of offensive
estoppel would be unfair to Dnot allowed to use offensive estoppel
Century Home: Where outstanding determinations are actually inconsistent on the matter
sought to be precludedestoppel is unfair (half win/half lose)
Restatement: party is precluded from relitigating with an opposing party is also precluded
with another person unless he lacked a full and fair opportunity to litiage the issue or:
incompatible with scheme of administering remedies, forum in 2nd action has procedural
opportunities not available originally, person could have effected joinder, determination
was inconsistent with another determination on same issue, based on compromised verdict,
issue is law so cannot reconsider legal rule
Joinder
Rule 18(a): party can join as many claims it has against the opposing party
1367 grants supp juris on: 1) basis of original jurisdiction; 2)identity of party seeking to
invoke supp juris; 3) the Rule authorizing joinder of party/claim
Rule 13: Compulsory/Permissive Counterclaims
Plant: Test for same transaction/occurrence: issues of fact/law the same?, would res
judicata bar a subsequent suit on Ds claim?, same evidence support claims?, logical
relationship,[underlying debt is compulsory in truth-in-lending cause of actions]
Great Lakes: Counterclaim is logically related where separate trials on each claim would
involve a substantial duplication of effort/time [claims that D had bad faith]
Rule 20/21 Joinder of Parties: join as P or D if assert any right to relief arising out of
same transaction, occurrence, or series of transactions or occurrences and any question of
law/fact will arise in action; Misjoinder is not a ground for dismissal
Rule 42 Consolidation: court can join any/all matters at issue, consolidate the actions,
issue other orders to avoid unnecessary cost/delay; or separate trials
Mosley:All logically related events entitling person to legal action is regarded as same
transaction/occurrence; discriminatory character of Ds conduct is same
Rule 14(a) D can bring 3rd party if he is liable for all/part of claim against it
Watergate: 3rd party must be secondarily or derivatively liable to D in the event D is held
liable to P (cant say its not me, its him) [breach of K ==negligence]
Rule 19: Compulsory Joinder: if doesnt destroy subject matter juris, party must be
joined if: court cant accord complete relief, person claims an interest in action (judgment
may impair their interest, give party risk of inconsistent obligations); if cannot be joined
look at factors: (prejudice, other options, adequate remedy?)
Temple: A tortfeasor with joint and several liability is permissive
Helzbergs: person is not indispensible simply bc their rights will be affected
Class Actions
Rule 23: a) 1)numerosity 2)commonality 3)typicality 4)adequacy of representation;
b1)separate actions creates incompatible standards of conduct or individual adjudications
would be dispositive of interests of other parties; b2)D has acted on grounds that apply
generally to the class so injunctive relief is appropriate for whole class; b3)common
questions of law/fact predominate and class action is superior (interest in individually
controlling law suit, extent of litigation already begun, desirability of concentrating claims
in particular forum, manageability concerns)
c) certification best notice practicable with individual notice to all members identified
through reasonable effort, with chance to request exclusion; d)conducting the action;
e)settlement notice, hearing that it is fair, if under b3, must have opportunity to exclude;
h)attorneys fees
Communities for Equity: rigorous analysis into prerequisites before certification; adequacy
of representation (rep must have common interests, rep will vigorously prosecute interests
through qualified counsel)
Causey: Mass accident should be class action where: limited to issue of liability, members
support action, choice of law problems are minimized by action occurring/all plaintiffs in
same jurisdiction [dif damages will not make incompatible obligations under 23(b)(1)]
Hansberry: A judgment in a class action binds absentee members only if they have been
adequately represented
Shutt: forum can adjudicate claims of absent members absent minimum contacts
Eisen: Best notice practicable under circumstances (individual notice to members who can
be identified through reasonable effort)
Castano: immature tortany judicial resource savings is speculative and procedural
problems overwhelm any imagined savingsjudicial blackmail bc all-or-nothing
Amchem: for settlement-only class certification, dont look at manageability problems but
heightened attention towards blocking overbroad class definitions (interests are not aligned
in this medical case)