25/01/2008 11:28:00

← PENNOYER V. NEFF—1st case to treat PJ as a constitutional issue

• Synopsis: N (non-Oregon resident) defaults so judgment entered against him in
Oregon, N’s land in Oregon is seized in effort to enforce judgment; court ruled that
earlier judgment invalid since Oregon court didn’t have PJ over N
• Constitutional concerns
o Full Faith & Credit: states are required to enforce judgments of other states;
don’t need to enforce a judgment that was rendered without PJ
o 14th Amendment re Due Process: an ind’s rights can only be adjudicated by a
court that has PJ over the person
• New limits re PJ
o In personam:
• Personal service—person needs to be served within the state even if a
non-resident (est’b power & notice); OR
• Personal appearance—showing up in court (power & consent)
o In rem—need both power & notice
• Property within the state est’b power so court could seize the land
• Service by publication est’b notice
o *If a person wasn’t in the state or had no property in the state, never PJ
o exceptions:
• if personal designated to rec service of process, PJ could be created
• status: divorce could be granted even though only 1 spouse was citizen
←
← POWER—MINIMUM CONTACTS
←
← Nature and ← COA— ← Jurisdiction
extent of contact relatedness of suit to ?
contact
← Continuous & ← related ← Yes
Systematic
← (Int'l Shoe v. WA)
← Continuous & ← unrelated ← evaluate
Systematic nature of contact
to determine if
general jdx exists
← Casual or Isolated ← Related ← evaluate
COA to determine
if specific jdx
Casual or Isolated Unrelated No
←
• Int’l Shoe v. Washington: WA imposed a state tax on Int’l Shoe, corp’s only
connection to WA was that salesmen were employed in the state; although corp not
physical present in the state, PJ est’b through sufficient min contacts
o states can exercise PJ over D’s not physically present in the state
o “fair play and substantial justice” required but little guidance was given
o few details are provided so other courts have been filled in the gaps
o on dealt with in personam, didn’t discuss in rem
←
← IN REM/QUASI IN REM
• Shaffer v. Heitner: D were sued due to their acts as corporate officers and P tried to
attach their stock as property in an in rem suit (until this case, courts were following
PvN precedent)
o Min contacts needs to be applied to in rem and quasi in rem jurisdictions; all
claims have to run through Int’l Shoe
• If the suit arises out of the property, the property alone is probably a
sufficient contact
←
← PURPOSEFUL AVAILMENT—Has D purposefully directed its activities at the forum
state?
• D enters forum state and conducts activity in the state
o Int’l Shoe
• Contract cases
o McGee v. Int’l Life: TX insurance co tried to claim no PJ when P sued in CA;
court held that CA had jdx even though the COA arose out of a single,
isolated contact with the forum state, since co went after business, the contact
is purposeful (specific jdx)
o Hansen v. Denckla: purposeful availment requirement arose
• "It is essential in each case that there be some act by which D
purposefully avails itself of the privilege of conducting activities in the
forum state, thus invoking the benefits and protections of its laws."
o Burger King: entering a K with a resident of the forum is not sufficient; K was
negotiated, party made payments to FL office, and dealt with personnel in FL;
court held that these activities illustrated purposeful availment
• Stream of commerce—does releasing a product into the stream of commerce
constitute purposeful availment?
 o World-Wide Volkwagen: NY resident purchased car in NY, got in an accident
in OK, and tried to sue NY dealer & regional distributor in OK court;
• court held that while the COA was directly related, D didn’t know car
was going to OK and did not purposefully direct activity at OK;
foreseeability wasn’t enough (doesn’t decide whether placing
something into the stream of commerce qualifies as purposeful
availmment)
o Asahi: no clear guidance as to whether injecting goods qualifies as a contact
• O’Conner (4): mere awareness is insufficient, also need some act
specifically directed at the forum state (such as advertising in that state
or designing products specifically for that state)
• White (4): mere awareness is sufficient to qualify as a contact
• Stevens: sheer vol is enough; doesn’t have an opinion re if mere
awareness alone is sufficient
• Sliding standard analysis:
o Passive site: site can be viewed but viewer can’t submit info
• Rarely est’b sufficient contacts
• Exception: site contains info clearly directed at another state
• “Effects" Test—also used in defamation cases
• D committed intentional, wrongful conduct
• D’s conduct was expressly aimed at the forum state
• D caused harm, the brunt of which was suffered–and D
knows is likely to be suffered–in the forum state
o Interactive site: viewer can input info but can’t enter into a transaction
• Need to evaluate surrounding circumstances re level of activity and if
site is commercial in nature
o Active site: viewer can input info and enter into a transaction
• Constitutes a contact
o Pavlovich v. Superior Court: site was passive and not enough purposeful
contact btw the D and the state; had the D known the P was a CA citizen, the
result may have been different
• Coastal Video Corp: courts are interested in sales from a particular state and
frequency of residents accessing the site to determine purposeful availment
←
← RELATEDNESS
• Does the lawsuit arise out of or relate to the purposeful contact?
 • If it doesn’t, is there general jdx in which case the D’s contacts so extensive that no
relationship is necessary?
o PJ will be upheld over D’s with long-term, regular, and substantial contacts
within a state
←
← GENERAL JDX
• Domicile
o Domicile = place where one resides with the intent to remain indefinitely
(intent to remain there permanently is not required)
o The state of D’s domicile may exercise PJ over D even if D is located outside
the domicile state, as long as D is given adequate notice of the suit.
• Milliken v. Meyer: D was a domiciliary of WY, but had been living in
CO for 7 years. P sued D in WY but served in CP. WY had PJ over D
even though living out of state
• If the forum exercises jdx based on D’s domiciliary status, the forum
has general jdx
• Domicile is measured at the time the suit is filed
• Corporations
o A corporation is domiciled in the state of its incorporation and in the state of
its principal place of business
• How do you determine principal place of business?
←
← OUTSIDE SCOPE OF MIN CONTACT ANALYSIS:
• Presence—P v N allowed PJ over anyone served while present in the state
o Burham v. Superior Court: D was a non-resident visiting CA for work and
while in CA for 3 days, D was served for a claim unrelated to his visit; court
held CA had PJ but no majority opinion
• Scalia: personal service in state will always est’b PJ, even in the
absence of min contact
• Brennan: PJ since min contact test applied  general jdx
• Steven: didn’t agree with either view but believed CA had PJ over D
• If D’s presence isn’t voluntary, the state may or may not have PJ
depending upon which justice’s viewpoint is applied
←
← FAIR PLAY AND SUBSTANTIAL JUSTICE—burden on the D to prove once min
contacts have been est’b
 • Burden on the D
o Burger King example
• P’s interest and available alternatives
• Forum state’s interest in resolving matter
o McGee example re CA’s interest
• Interstate judicial system’s interest in efficient resolution
o Not efficient if case is being split up and heard in various forums; if forum is
only place that all the claims will be heard, it is valuable
• Shared interest of other states in furthering fundamental substantive social policies
o If an alt forum doesn’t recognize the claim, this could affect social policy
• Asahi: only case in which court denied jdx even though there were sufficient contacts
←
← CONSENT—consent alone can est’b PJ without power (no min contact analysis
necessary)
• Consent to Service on an Agent
o Forum state will get jdx over nonresident when nonresident appoints agent to
receive service in the forum state
• Personal appearance in court
• Consent through a contract
o Forum selection clause—most jurisdictions will enforce as long as it is fair
• Carnival Cruise Line: nonnegotiable clause on the cruise ship ticket;
forum state was reasonable since it was principal place of business
• Implied consent
o If P files suit in a forum, he consents to PJ for all matters arising from that
particular lawsuit
o If a D files a counterclaim before bringing up PJ, it will be considered that D
consented to PJ
←
← NOTICE
• notice is independently required by the constitution
o 14th Amendment DPC: D is required to rec adequate notice of litigation; a
judgment without notice is unconstitutional
• Mullane v. Central Hanover Bank & Trust: court defines what is necessary to
constitute notice
 o service of process must be “reasonably calculated, under all circumstances,
to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections”
o receipt of notice unnecessary: as long as notice meets reasonable standard, D
is subject to PJ even if D never rec’s it
o acceptable means: service doesn’t have to be personally served, can be by
first-class or certified mail
o service through publication
• court rejects the old view from P v N re publication: if the addresses
are known, publication is not an acceptable method of notice
• if the whereabouts of the D are unknown and would be too difficult to
obtain, publication is OK
• Rule 4
o General rule: 4(k)(1)(a): notice is sufficient to est’b PJ over a D only if the
court has power over the D—notice itself does not est’b PJ
o 4(e):
• fed’l court is allowed to use any method authorized by the state’s law
in which the court is present
• service is proper if left at D’s home with someone of suitable age &
discretion
o Waiver of service 4(d): allows P to ask D to waive service (P would mail a
written request for waiver along with complaint)
• P must give D at least 30 days to respond
• If D waives actual service, D now has 60 days not 20 days to answer
the complaint
• If D doesn’t waive service, D must pay for the cost of actual service
• Cannot be used if D is…government, infant, or incompetent
• Waiving service does not mean D is waiving defenses (PJ, venue, etc)
o Corp: service can be made to a managing or general agent
o SOL—courts are split as to whether it stops when complaint filed or D served
• Rule 3: SOL stops running when the complaint is filed
←
← CHALLENGING PJ
• Traditional approach
o Default and collateral attack: D does nothing, default judgment entered, D
challenges PJ and validity of judgment when P tries to enforce the judgment
 • Problem: if D loses on PJ argument, the judgment is valid
o Special appearance: D can appear in court solely to argue lack of PJ
• Problem: if D loses, he can challenge merits of the claim & waive PJ
OR he can default & collateral attack
• Fed’l Approach
o Time limit—Rule 12
• If pre-answer motion is filed, objection to PJ must be raised
• If no pre-answer motion is filed, objection to PJ can be made in the
answer
←
← SELF IMPOSED RESTRAINTS ON POWER
• LONG ARM STATUTE
o States grant PJ over non-residents via long-arm statutes
o Fed’l or state court will take less personal jurisdiction than is constitutionally
allowed
• Some states (like CA) will take all the jurisdiction consistent with
constitution
o On exam, need to evaluate if PJ exists under the (1) long-arm statute; (2)
constitution
• VENUE 28 USC §1391
o Not constitutionally required, but created by Congress;
o Statute determines which district a claim will be heard, once PJ has been est’b
in that particular state
o §1391 (a): diversity jdx cases
• any district in which a D resides, if all D’s reside in the same state (1)
• note: “resides” is not the same as “domicle”
• any district where a “substantial portion “ of the events giving rise to
the claim occurred (2)
• if non other option, any district that a D is subject to PJ at the time the
action commenced (3)
o § 1391 (b): non-diversity cases
• any district in which a D resides, if all D’s reside in the same state (1)
• any district where a “substantial portion “ of the events giving rise to
the claim occurred (2)
• if no other option, any district that a D can be found (3)
 •Dee-K v. Hevaefil: court held that serving a D in a specific
district doesn’t mean that D can be “found” in that district;
needed to do a min contact analysis
o § 1391 (c): Corporation resides in any district in which corp is subject to PJ
• provision is meant to define residential issues for (a)(1) & (b)(1)
• if state has more than 1 district, each district is viewed as a separate
state and the min contact test needs to be applied to the specific district
• within the state of incorporation, any district is proper for venue
o § 1391 (d): Aliens can be sued in any district
• court must have PJ over the alien D, practically speaking
• If a state has PJ, then alien can be sued in any district in state
• in cases that involve a US citizen and an alien, the alien is considered
to reside in every district, thus alien can be sued anywhere the US
citizen can be sued
o challenging venue—it is a personal defense just like PJ
• Time limit in Rule 12: must be objected in the answer or earlier
• D may waive venue by actions inconsistent with a venue defense
• FORUM NON CONVENIENS—allows ct to dismiss claim even if venue is proper
o Alternative forum—must determine if there is such a forum
• Difference in remedies will only prevent a dismissal if the alt forum
would deny P’s rights
• Just because recovery may be easier in one forum, is not
sufficient to prevent dismissal (Piper Aircrafts. V. Reyno)
o Factors—D carries the burden to prove that all the factors are in his favor
• Private factors:
• Where physical evidence is located
• Where the event occurred
• Where witnesses are located and compelling them to testify
• Cost of litigation
• Public factors:
• Administrative difficulties in the court
 •
Court’s interest in the matter
•
Issues re law—determining which law will be applied and
court’s familiarity with the law
• Burden on citizens in other forum to serve on jury duty
o General rule: P is in control of the lawsuit so for the D to get the action
dismissed, the D must prove that all the factors are in his favor
• Piper Aircrafts: foreigners are not given equal power to US citizens
• TRANSFER
o Only applies to fed’l courts
o Each party may move for a transfer but P’s choice is strongly considered
o Courts may consider the same private & public factors as above
o §1404: Fed’l court can transfer to another fed’l court as long as both transferor
and transferee have PJ and venue rights
o Transferor can lack either PJ or venue and still transfer to a proper forum
• § 1406: if court lacks venue, the court can still transfer; irrelevant as to
whether PJ is lacking; court is transfer if it is more just than dismissing
o § 1631: if court lacks PJ, the court can still transfer
←
← SUBJECT MATTER JDX
• Challenging SMJ
o Any party can challenge at any time during the lawsuit
o Court can raise the issue even if neither party does
← FED’L QUESTION JDX
• Constitution, Article III: “all cases in law and equity, arising under the constitution,
fed’l laws and treaties”
o Supreme Court is required by const
o District courts & appeals court were est’b congress but not required by const
• Statutes: congress allocates jdx to district courts since the constitution doesn’t grant
jdx to lower fed’l courts
o § 1331: “district courts hall have original jdx of all civil actions arising
under the const, laws or treaties of the US”
 • cases can still be heard in either state or fed’l court (except for service
issues that are exclusive to fed’l court: copyright, trademark, etc)
• no amt in controversy required
• Well-pleaded content rule: fed’l question must be central to the complaint and not
merely an issue; fed’l element must be necessary to the case
o Fed’l issues that the defense may raise are irrelevant
• Not constitutionally required; congress has interpreted the language in
the constitution re “arising under” when it created this rule
o Louisville & Nashville RR v. Mottley: party wanted to enforce a lifetime pass
that the RR had granted them; cause of action = breach of K, arising under
state law, defense would allege their right to revoke the pass under fed’l law;
court ruled that a defense re fed’l law make the claim qualify under SMJ
• Declaratory judgments: courts will look to the essential nature of the lawsuit since
such judgments don’t necessarily arise under fed’l law
← DIVERSITY JDX
• Constitution, Article III: allows fed’l courts to exercise jdx over “controversies…btw
citizens of different states…and between a State, or the Citizens thereof, and foreign
States, Citizens, or Subjects”
• 28 U.S.C. §1332: diversity of citizenship
o diversity: must involve P’s & D’s who are “citizens of different states” or
“citizens of a foreign state”
o amt in controversy: must be more than $75,000
o still can be heard in either state or fed’l court
o court can refuse to exercise jdx even if ct has diversity jdx
• Courts have interpreted statute to require complete diversity; const only requires
minimal diversity
• Citizens of different States - §1332(a)(1)
o Citizen of a state—must be a citizen of the US and domiciled in a state
• Domicle = residence + intent to stay
o Permanent resident aliens—considered citizens of the state of domicle
o US Citizens domiciled abroad—can’t ever invoke diversity jdx
• Not domiciled in US so not a citizen of a state & not a citizen of the
foreign state
o Corp—citizen of state of incorporation or principal place of business
• Muscle test: actual physical activities (sales, manufacturing)
• Nerve center: headquarter (management and decision making)
 o Partnership—consider the citizenship of all the partners
• Citizen of a state and citizen or subjects of a foreign state--§1332(a)(2)
o “Permanent resident alien” clause has been interpreted by the courts not
always be applied literally, to limit not expand fed’l jdx—won’t be applied (to
2 aliens) to create jdx where it previously didn’t exist (Saadeh v. Farouki)
o General rule: can’t have foreign citizens on both sides and only a US citizen
on one side (Ca & Mexico v. Japan)
• Amt in controversy (in excess of $75,000)
o Not required by constitution; created by Congress
o Measured by amt sought by P in complaint
• Amt controls unless it appears to a legal certainty that the P could
never recover that amt
• Actual recovery is irrelevant
• Nonmonetary relief: the court will measure the injunction by…
• Value to the P (majority approach)
• Market price or damages suffered
• Cost to the D if he complies
• Courts have discretion to use any test
o Compulsory v. permissive claims: no min amt required v. min amt required
o aggregating claims:
• 1 P (with 2 or more claims) v. 1 D: P can aggregate
• claims can be completely unrelated
• 2 P v 1 D: P’s cannot aggregate claims if the claims are separate and
unrelated
• mult P’s v. mult D’s
• common interest: aggregate (ex: owning property together)
• distinct claims: not aggregate (ex: 2 people in a car accident)
←
← SUPPLEMENTAL JDX
• § 1367: If fed’l court has jdx over 1 claim, courts may be able to exercise jdx over
other claims that alone don’t qualify for fed’l jdx so long as the claims are so related
that they form part of the same case or controversy
o Pre-statute 1990: courts referred to as pendent or ancillary
• Constitutional basis: “same case or controversy”
o Constitution gives fed’l court jdx over “cases” not “claims”—interpreted that
“case” is broader than an individual claim
o Case = all claims that arise out of a “common nucleus of operative fact”
(United Mine Workers v. Gibbs)
• §1367(b) Diversity exception: When original claim is solely on diversity jdx, if
parties are joined under Rules 14, 19, 20, 24 and defeat diversity, there can be no
supplemental jdx
o Rule 14:
• D brings in a 3rd party, D is now a 3rd-party plaintiff;
• P brings in 3rd party after a counterclaim
• Example: P (X)  D (Y)
• D (Y)  C (X) 3rd party suit
• If P brings a cross-claim against C  no diversity  no suppl jdx
• If C was from Y & P didn’t cross-claim, then suppl jdx might be ok
o Rule 18: party can join together as many claims against 1 party
o Rule 19:
o Rule 20: people can join together as P if each claim arises from the same facts
o Rule 24: intervention by right or permission
• §1367(c)Fed’l court has discretion to refuse to exercise supplemental jdx
o State claim raises a novel or complex issue of the law
o State claim substantially dominates the fed’l claim
o All fed’l claims have been dismissed
o Other compelling reasons
o Jin v. Ministry of State Security: issue was whether suppl jdx could extend to
defamation claims brought by US plaintiffs. Even though different state laws
would be applied, the court held that just because it would be difficult and
time consuming did not mean it involved complex issues of the law
• § 1367 (d) tolling: If the state doesn’t have a “saving statute” and fed’l court
dismisses the state claim, P has 30 days after dismissal to file in state court
←
← REMOVAL
• § 1441: D in a state law case may remove a case to fed’l court “of which the district
ct has original jdx”
• Only D can remove a case; all D’s must join the notice of removal
• Fed’l question would be determined by the well-pleaded complaint rule
• Removal to the specific district court in which the state court is located
• §1441(b) diversity cases:
• Home-state removal bar re diversity cases: D can’t remove if any D is a citizen of the
State in which the action is brought
• Timing
o Diversity & fed’l question jdx must exist at the time of filing (removal)
o Cases can become eligible for removal if the amt of controversy changes, the
nondiverse parties are dismissed
• Notice of removal deadlines:
o Must be filed 30 days after D receives notice about the claim
o If originally not removable but becomes removable, D has 30 days to file after
notice that case qualifies as removable
o Diversity jdx case can’t be removed more than 1 yr after case commenced, if
if ability to remove comes after the 1yr deadline
• How to file a notice of removal:
o File in district court
o State the basis for removal
o Include all pleadings and orders
o Signature need to satisfy Rule 11
• Objections to removal
o Must be filed within 30 days after the D filed the notice of removal
o * subj matter jdx doesn’t apply to this deadline
o if removal is improper, can be objected to at any time
 • If case is improperly removed, judgment in fed’l court is still valid as long as
diversity existed at the time of judgment (Caterpillar v. Lewis)
• If fed’l court finds removal improper, case will be remanded to state court
• unconstitutional element of § 1441(c): “separate and independent claim or COA” is
joined with 1 or more otherwise non-removable claims or COA may be removed”
o technically unconstitutional since it would allow the court to hear a case in
which it doesn’t have jdx and does not meet the suppl jdx test
o constitutional in that there may be “cases” that meet the constitution’s
requirement but don’t meet the common nucleus of operative facts test
• entire claim goes to fed’l court for review and then the state claim gets
kicked back to state court
← EERIE
← Swift v. Tyson
• Issue re liability in torts
• interpreted the statement of “laws of the several states” from the Rules of Decision
Act to only include state statutes and not state common law
• reasoning:
o belief that law was an omnipresence that naturally existed independent from
judicial decisions; judges were suppose to interpret and apply the law but they
didn’t create law
o meant to strengthen the fed’l court system
o wanted to create uniform nat’l commercial law to facilitate business
• effects of the decision (policy)
o fed’l common law swept into other areas
o Big corps supported the decisions
o burden on an ind person to pursue a lawsuit in fed’l court: would need a
specialist to determine which fed’l common law the court would apply, travel
distances, delays, losing party has an automatic right of appeal
o forum shopping –companies could re-incorporate themselves to remove to
fed’l court and get the law that they wanted (taxi cab case)
o inequitable administration of the law –cases could have different results
whether filed in state or fed’l court
← Erie
• Holding: state common law is considered “law”
• Claims Swift was unconstitutional
 o Could have just given a new interpretation of the rules of Decision Act—felt
Congress could have changed the statute if the meaning was interpreted
incorrectly by Swift
o Constitution doesn’t the fed’l courts the power to create common law
• Congress may be have the power but passing a law through the
Commerce Clause
• Judge Reed: “line btw procedural and substantive law is hazy, but no one doubts fed’l
power over procedural” (dicta)
• Conflicts of Law Rule (each state has its own)—directs the state judge as to what
law to apply when there is more than 1 possibility
o Horizontal choice of law issue –state to state
o Vertical choice of law issue –state to fed’l court
• Erie wasn’t clear on the issue
• Fed’l judges need to apply the conflict of law rule from the state in
which the fed’l court sits
← Guaranty Trust Co v. York
• Issue re SOL: apply state statute or fed’l common law
• Court doesn’t decide if SOL is substantive or determinative
• Court uses an outcome determinative test –would the case come out differently
based on whether state or fed’l law was applied?
• Statement: “merely the manner and the means by which a right to recover”
o Could be used to circumvent the outcome determinative test so that certain
issues that are clearly procedural wouldn’t be excluded
• Not a constitutional decision but a policy decision
o court didn’t say it’d be unconstitutional to apply the fed’l SOL
o source of power:
• Congress created fed’l court by Constitution, Article III, section 1
• Inherent from the creation of fed’l court comes the right for the courts
to create their own housekeeping rules –common law rules ??
o Policy decision to discourage forum shopping and keep decisions consistent
regardless of what court the case is filed
• Effects: courts took decision too far and began applying state law over FROCP and
fed’l statutes
← Hanna v. Plumer
• Issue: conflict re service of process btw a state rule and a Fed’l Rule of Civ Pro
• Sources of power for the FROCP
 o Congress created fed’l court by Constitution, Article III, section 1
o Congress wrote the Rules Enabling Act—which delegates to the Supreme
Court the power to write its own Rules re practice and procedure
• Congress could have kept the power but gave it to the SC
• Editorial committee writes and SC approves
← Stewart v. Ricoh:
• Issue re forum selection clause: apply state common law or a federal statute
• Source of power for fed’l statutes? Written by congress?
← Byrd v. Blue Ridge Rural Electric:
• Issue re who would be the fact finder: state law had judge determine and fed’l
practice (common law) had the jury determine based on the 7th Amendment
• Analysis:
o Not really bound up in substantive law
o Not necessarily outcome determinative
o Strong fed’l interest that jurors should be the fact finder based on courts’
desire to apply the 7th Amendment
←
← CONFLICT ANALYSIS
← 1. Is the conflict between state substantive law and fed’l common law in a
substantive case?
• State law applies (comes from Erie)
← 2. Is the conflict btw state law and Fed’l Rules of Civil Procedure? (Hanna)
• Does the Rule cover the situation/case creating a conflict?
• Is the Rule within the Rules Enabling Act or did the court go beyond what congress
gave them power to do?
o Test: Does the rule really regulates procedure?
• Is the Rule constitutional?
• If answer is yes to all the questions, FROCP is applied
o No rule has ever failed questions 2 & 3
← 3. Is the conflict between state law and federal procedural statute? (Stewart)
• Does the fed’l statute cover the situation/case creating a conflict?
• Is the statute constitutional?
• If yes to both, fed’l statute is applied
← 4. Is the conflict btw state law and fed’l common law?
• Guaranty test: Is it outcome determinative?
o If yes apply state law
• Bryd test:
o Is the practice bound up with the rights and obligations of the parties created
by state law? Basically, is it bound up with substantive law?
• If yes, state law prevails
• If no, more procedural, then continue analysis
o Is it outcome determinative?
o Are there federal interests in applying the fed’l common law?
o Questions 2 & 3 are analyzed through a balancing act in reaching a conclusion
• Hanna test –main approach to use on the exam
o Would applying the fed’l common law encourage forum shopping?
• Test: Is this something parties would consider before lawsuit starts?
o Would applying the fed’l common law result in equitable administration of
the law?
• Test: Is it leading to consistently different verdicts?
o If answer is no to both, apply fed’l common law
←
CIV PRO OUTLINE 25/01/2008 11:28:00
← LITIGATION
Are we over litigating?
Making procedure more onerous means we reduce litigation.
← I. REMEDIES
• SUBSTITUTIONARY
o Compensatory damages –restore the injured party to the position he would
have been in had it not been for the wrong of the other party; meant to
compensate for the harm suffered (economic damages, pain/suffering
damages)
• Value of an avg. person (market value) –try to assign a monetary value
to a non-monetary injury (i.e. sentimental value of a stolen family
heirloom)
• Lost time –P usually will not get pre or post judgment interest
• Duties of the Plaintiff:
• Duty to Mitigate –required to take reasonable steps to mitigate
damages
• Duty to Record-keep –necessary for things that are difficult to
quantify (diary, medical records)
o Punitive damages –form of punishment (retribution, deterrence); D has acted
intentionally or willfully
• Limits have been imposed based on Due Process Clause (depriving
prop without affording the process of law)
• differences btw civil and criminal
• beyond a reasonable doubt v. preponderance of evidence
• judge determines sentence v. jury determines amt
• DA decides what cases to prosecute v. Plaintiff/victim
• Test: 3 substantive factors (BMW v. Gore Guideposts) and 1
procedural factor
• 1. Degree of reprehensibility –physical v. economic harm
(physical harm is worse than only economic)—Indifference or
reck’l disregard to health and safety of others; repeated actions
v. isolated event; malice, deceit v. accident; financial
vulnerability (anita pinion); Need to look at the specific
incident…can look at factors of misconduct within state but
not at natl market.
 • 2. Punitive damages v. actual damages ratio
• proper ratio = single digit to 1 –not a bright line rule,
just a standard State Farm
• Not a bright line rule….some cases may allow more,
but strong presumption against constitutionality when
it’s more than fair.
• 3. Disparity btw. civil penalties and punitive damages – what
are typical or comparable penalties for similar civil crime
(wrt govt)
• appellate courts need to conduct a de novo review from
BMW v. Gore. –usually deference is given to the lower court
• State Farm Mutual Auto Insurance: bad faith lawsuit arising out of an
auto accident; court held punitive damages were too high since $145
million to $1 million ratio, state fine for fraud = $10,000, and actions
could have been worse; Utah Sup Ct misapplied the Gore test on
degree of reprehensibility.
• SPECIFIC REMEDIES –court orders party to act or refrain from acting
o Most specific remedies are equitable
• Some specific remedies are legal remedies; replevin and writ of
mandamus are legal remedies
o General rule: party can only obtain equitable relief – i.e. a specific
remedy - when legal remedies are inadequate (look at Sigma Chemcial)
• loose standard –courts will find that damages are inadequate
• equitable remedies are more difficult to enforce
• some people have argued that there’s an “election of remedies”; there
is no hierarchy between law and equity
• some people argue, courts give remedies all the time, there is no
election of remedies
o injunction = most common specific remedy
• injunction can be mandatory (D must undertake certain action) or
• injunction can be prohibitory (D must refrain from certain activities)
• violation of an injunction can lead to fines or jail time (think of
Birmingham Jail letter)
o Standard for determining whether to grant an injunction – from Sigma
Chemical Co.
• 1. No adequate legal remedy – damages insufficient; RP cases.
 • 2. Balance of hardships –hardship on P if relief is denied; vs. the
hardship to D if it is granted –even analysis, court doesn’t
necessarily give deference to the P
• Sigma Chemical v. Harris: employee violated non-compete clause and
employer sought injunctive relief to prevent disclosure of trade secrets
and info; court granted the relief by balancing the hardships and
determining that the damages would be too difficult to calculate –other
employees didn’t have trouble finding new jobs; employee aware of
clause when signed K
← II. PROVISIONAL REMEDIES = relief pending final adjudication of the dispute;
given early on
• Specific relief and temporary remedies
• 1. Preliminary Injunction – (FRCP 65(a)) meant to preserve status quo so that the
final relief granted will be effective
o Need to give notice to the adverse party.
o 4 prong test for preliminary injunctions (Used during the Inglis & Sons case
by the trial court) –more rigorous than for a final injunction
• 1. P will likely prevail on merits –court holds hearing to consider
evidence and legal merits
• 2. P will suffer irreparable injury if relief is not granted now as
opposed to at the end of the trial
• 3. Balance the hardships so that the D will not be harmed more
than the P is helped by the injunction; and
• 4. Granting injunction is in the public interest
o Alternative test (cited in Inglis, from the case Revlon v. Charlies’ Girls
Inc,, 2nd circuit):
1. P’s probable success and possibility of irreparable injury (see 1 and
2 above); OR
2. serious questions are raised (i.e. P has a fair chance of winning) &
balance of hardships is in the requesting party’s favor
• → 1st part more difficult for a P to prove than the 2nd part
o → apply both tests on the exam
o § 1292: prelim injunctions are appealable, interlocutory
o Abuse of discretion standard: Appellate court can reverse a grant or denial of
injunctive relief only if the lower court’s decision was based upon an
erroneous legal premise or abused its discretion
 o William Inglis & Sons Baking Co v. ITT: anti-trust suit, P sought injunction
regarding bread’s selling price; lower court followed 4 prong test and denied;
appellate court held that an alt. test could have been employed
o Bond—requesting party may have to file a bond to ensure that the enjoining
party can recover any damages it may suffer as a result of a wrongfully issued
preliminary injunction
• This is to ensure that a party is compensated if the injunction is found
wrongful on appeal; or if the trial leads to a different result.
• Don’t want to set bond level too high; bc then P can’t bring suit.
• Don’t want to set bond level too low
• No bond is required of the US govt.
• 2. temporary restraining order (FRCP 65(b))
o irreparable injury must be so serious that a prelim injunction would not
protect the party; demonstrated by affidavit; NO HEARING.
o temporary, emergency order that expires after 10 days; meant to preserve
status quo until a prelim injunction hearing
• pretrial attachment – need to give notice; attach assets to ensure that they aren’t
gotten rid of.
o purpose is to prevent the D from disposing of assets or prop during the course
of trial
o seizure is a violation of 14th Amendment (due process clause) so the party is
entitled to due process
o general rule: notice is required and the opportunity for a hearing
(adversarial proceeding) before the property can be attached
o Exceptions to providing notice and an opportunity to be heard. A hearing may
not be required when:
• 1. Seizure is necessary to secure an important gov’t or gen’l public
interest -
• 2. Special need for prompt action – commandeer a car to chase a thief
• 3. State has kept strict control over its monopoly of legitimate force:
gov’t official is seizing prop and is responsible for determining
whether it’s necessary and justified
• Ex: protect against bank failure; collect taxes; protect public
from mislabeled food
• Mathews v. Eldredge, p. 325. – look at in determining what kind of
hearing is required.
 • 1. Private interest that will be affected;
• 2. Risk of erroneous deprivation
• 3. Government’s interest vs. burden of having a trial.
o Fuentes v. Shevin: creditor could repossess prop sold on credit without giving
debtor notice of either the suit or the seizure; no bond requirement and waiver
of notice were not sufficient; court held the action violated debtor’s due
process
• Contempt/Collateral bar rule
o If you violate an injunction, you will be held in contempt. You cannot
challenge the propriety of the injunction at that pt.
← III. FINANCING LITIGATION
• ATTORNEY FEES
o Hourly v. contingency
• Ethical issue to advise client of options
• Contingency is similar to an insurance system
o American v. English rules
• American rule –each party pays its own atty fees
• English –losing party pays both side’s atty fees
o Fee-shifting under the American Rule
• Buckhannon: Enforceable jdgt on the merits and court-ordered
consent decrees create a “material alteration of the legal
relationship of the parties” such that a party can be considered
“prevailing”
• Contractual: breaching party must pay fees or losing pay must pay fees
• Ex: landlord-tenant lawsuits
• Statutory: granting atty’s fees is prevalent in civil rights statutes
• Ex: “court, in its discretion, may allow the prevailing
plaintiff…a reasonable atty’s fee and costs”
• Statute, awarding fees to prevailing party, will only apply to
court judgments and not to settlements –
• Buckhannon Board v. W. VA: state law changed in the midst of
the trial so issue was moot; P contended that it was the
prevailing party.
 • Buckhannon argued that it was a prevailing P. Used the
catalyst theory (P is a “prevailing party” if it achieves the
desired result because the lawsuit brought about a voluntary
change in the D’s conduct); they argue, if the D voluntarily
changes the conduct, then we are a prevailing party; court
held that to prevail, need a judgment or a court order; USSC
overruled the catalyst theory; P should have added damages to
the claim for injunctive relief.
• What are prevailing parties? Enforceable jdgt on the merits
and court-ordered consent decrees create a “material
alteration of the parties’ legal relationship” such that a party
can be considered “prevailing”
• Evans v. Jeff D.: settlement offer was for the injunctive relief
the P’s sought (“we’ll stop doing what you want us to stop
doing”) but REQUIRED an atty fee waiver; suit was under a
statute that included fee-shifting, AND THE SETTLEMENT
OFFER SAID, YOU MUST WAIVE FEE SHIFTING; IS
THIS OK? P’s atty contended that the settlement was fair, so
he had to take it. Court held that settlement was valid and atty’s
fee is a valuable bargaining tool.
• Fee-shifting is a valuable tool allowing parties to bring
lawsuits that otherwise wouldn’t happen. The Evans v. Jeff D.
ruling constrains the ability to bring these lawsuits.
• Federal Rules deal with fee shifting and cost shifting:
• Rule 54: Costs, other than attorneys’ fees, are allowed to
the prevailing party unless court directs otherwise
• Costs for experts
• Costs for travel
• Costs for copying
• Costs for transcripts
• Costs for filing papers
• Claims for attorney’s fees can be made in a motion
• Civil rights lawsuits incude attys fees as part of costs
 •Rule 68: If P rejects a formal settlement offer and after
trial recovers less than the amt offered (or loses), the P
must pay all costs (not including atty’s fees) incurred by the
D after the offer.
• If suit is under a statute (such as Civil Rights statutes)
that says “attorneys’ fees are included in costs”, and P
collects less than settlement offer amt at trial, the P will
be denied attorneys’ fees incurred after the settlement
offer was made, as well.
• Creates incentive to settle
• Common law: courts will award atty’s fees for frivolous lawsuits
←
← PLEADING
← I. COMPLAINT
• Contents—Rule 8(a) “short and plain statement” – and of course, must be suff
for Rule 12(b)(6) – failure to state a claim upon which relief can be granted.
o 1. Short and plain statement of the basis for personal jdx, SMJ, and venue
o 2. Short and plain statement of the P’s legal claim
• body of substantive law
• set of facts that fall under the umbrella of that law (need to have facts
going to each of the elements alleged)
o 3. Demand for judgment setting out the relief the pleader seeks
• Rule 9 - Fraud or mistake pleadings: circumstances must be “stated with
particularity” --“short and plain” standard does not apply
• Allocating elements –
o Burdens: pleading, production, persuasion
o Substantive law reveals the relevant issues
o Burden of pleading: one must allege that element of the claim or defense
o Ex; Immunity – See Gomez.
• State officials are liable if their actions or orders violate const rights
but get get qualified immunity if actions took place under a reasonable
misapprehension of law
• Not determined until trial
• Debate as to which party had to bear the burden
• Look at the case to get the elements out of it
• Court held that the D needed to state in the pleading that D won’t be
 able to raise qualified immunity
← II. ETHICAL LIMITATIONS –RULE 11
• Only applies to pleading, not to discovery (that’s a separate part of the rules)
• Documents (pleading, motions, and other papers) must be signed; address and phone
number must be provided 11(a)
• Representations to court –certifications must be accurate or subj. to sanctions 11(b)
o No improper purpose (harass, delay, increase costs) (1)
o No frivolous arguments (unwarranted extensions of existing law) (2)
o Factual contentions have evidentiary support or are likely to have
support based on a reasonable investigation (11(b)(3)) (but see Rule 9)
o Denials of factual contentions must be supported by evidence or
reasonably based on info/belief (11(b)(4))
• Filing the motion will not stop the clock
• Conversation with client about Rule 11
• Rule 11 motion won’t be heard until after full event violating Rule 11 is complete
(pleading and response)
o Ex: if want to file a Rule 11 motion on the complaint, need to file answer and
the motion; court will handle the answer first before the Rule 11 motion
o Caveat: can try to file Rule 11 motion before the answer if have a 60 day
window, but probably won’t get a response from the motion Need to respond
to the pleading that invokes the Rule 11 motion and the response will be
heard/handled before Rule 11
• Process:
o Talk to client: what does client want to do…typically Rule 11 will come
after whatever pldg you claim violated Rule 11.
o party makes motion for sanctions, stating the specific sanctions it so
desires
o Court can also move sua sponte to give sanctions
o moving party first serves motion on offending party; safe-harbor
provision requires you serve the motion on the offending party and give
them 21 days to cure the error; Have to file a Rule 11 motion separately.
A motion for sanctions shall be made separately from other motions.
o If party doesn’t correct, motion is then filed with the court
o Mtn for sanctions
• Potential Sanctions:
 o Guidelines: sanction is “limited to the minimum sanctions sufficient to
deter repetition of conduct”
o range of sanctions: non-monetary nature, penalty payment to court, attys’ fees
& costs incurred as a result of the violation
• only counsel can pay sanctions for violation of the provision dealing
with wrongful legal contentions (11(b)(2)) (frivolous arguments)
• party and/or counsel may pay sanctions for violations of the other parts
of Rule 11(b)
o Court may award costs and reasonable attys’ fees to prevailing party or
other sanctions;
o court must issue an order describing the offending conduct and justifying
the sanctions 11(c)(3)
• Walker v. Norwest Corp: P’s sued in fed’l court based on diversity jdx; P was S.
Dakota resident and P alleged that some of the D’s were S. Dakota residents as well;
atty was notified of mistake, and he still did nothing; sanctions were issued since the
allegations of diversity jdx were not supported by the law 11(b)(2)
• Christian v. Mattel: P sued re copyright infringement; facts prove impossible since
D’s doll was copyrighted first; sanctions issued since P filed frivolous lawsuit.
Sanctions overturned because the DC judge stated reasons for sanctions that were
outside the conduct of the atty in filing the mtn. 11(b)(2)

← II. RESPONSE TO THE COMPLAINT –pre-answer motion or an answer

• PRE-ANSWER MOTIONS
o Important since gives party more time for the answer and may end the lawsuit.
D has 20 days to make such a motion; If motion is denied, D has 10 days to
answer + any time left over since the clock gets stopped when the pre-answer
motion is made
o Necessary paperwork: Motion, notice of motion (states that a motion is being
filed and court appearance info), memo, affidavits
o Typically get only 1 (unify all of them, if you want to use them).
o Court will usually grant P leave to amend the complaint to fix defect
o Dismissal: In fed’l court, a 12(b)(6) dismissal is on the merits → claim
preclusion
o Rule 12(b) Defenses:
• *Lack of subj. matter jdx (not use it or lose it)
• Lack of personal jdx (use it or lose it)
 • Improper venue (use it or lose it)
• Insufficiency of process (use it or lose it)
• Insufficiency of service of process (use it or lose it)
• *Failure to state a claim upon which relief can be granted (not use
it or lose it)
• *Failure to join a party as required by Rule 19 (not use it or lose
it)
o Rule 12(e) defense: motion for a more definite statement –challenge if
ambiguous or includes objectionable material (almost never used)
o Rule 12 (f) defense: motion to strike: allows a party to move to strike certain
portions of a pleading that are redundant, immaterial, impertinent or
scandalous
o 12(e) and 12(f) motions are not motions of the type that make you lose your
right to bring other pre-answer motions.
o Waiver –if a party files a pre-answer motion but omits certain defenses stated
above, the party waives the omitted defense
• The remaining defenses can’t be raised in a 2nd pre-answer motion
← III. ANSWER
• Time to file: 20 days generally; 60 days if D waives service; if pre-answer motion is
denied, D has 10 days to answer and any time remaining
• 10 days or less time periods do not include wkends/holidays; in a “more than 10 day”
time period, the days continue to toll on weekends and holidays. But if the due date
falls on a weekend or holiday, the mtn is not due until the next court day.
• 3 ways to answer
o admit
o deny
• partial denials –may want to admit and deny certain info within the
paragraph
• must specify what portion is being denied
• gen’l denial –deny each and every allegation of the entire complaint
• usually can’t deny everything in good faith
• limited gen’l denial (gen’l denial with exceptions): deny
everything except for certain items that are explicitly admitted
• specific denial –admit or deny each paragraph
o deny due to lack of knowledge/information
• Denials
 o failure to deny an allegation constitutes an admission
o denials must be made in good faith and grounded in fact
• D is allowed to deny “without knowledge or info sufficient to form a
belief as to the truth of an averment”
• Ex: told through a 3rd person –don’t have to admit
o partial denials –may want to admit and deny certain info within the
paragraph
• must specify what portion is being denied
o gen’l denial –deny each and every allegation of the entire complaint
• usually can’t deny everything in good faith
• limited gen’l denial (gen’l denial with exceptions): deny everything
except for certain items that are explicitly admitted
o specific denial –admit or deny each paragraph
o Zielinski v. Philadelphia Piers: D’s denial was not effective because the D
denied the entire paragraph and should have been specific. General denial
was misleading and P believed that D was simply denying the driver’s
negligence. Later it was uncovered that another corp would be liable but
P was misled on seeking the info bec of the general denial. D was ordered
to admit an untrue statement at trial under the doctrine of estoppel.
• Defenses –explains why the P isn’t entitled to recover
o Defenses and denials can be missed
o 2 types:
• ordinary defenses: based on a procedural, legal or pleading defect
(12(b) defenses)
• Affirmative defenses: intro of new facts not in the P’s claim; any
information that would take the adverse party by surprise; think
“Yes, but…”
• Rule 8 – what are affirmative defenses:
• 1. accord and satisfaction,
• 3. assumption of risk,
• 4. contributory negligence,
• 6. duress,
• 7. estoppel,
• 8. failure of consideration,
• 9. fraud,
• 10. laches,
 • 11. res judicata,
• 12. statute of frauds,
• 13. statute of limitations.
• If pleading raises fact that is not part of P’s case in chief, it is an aff
Def.
• Rule 8(c) defines affirmative defenses but it is not exclusive
• Layman v. Southwestern Bell Telephone: court held that
if the D wants to defend a trespass claim by arguing
that it had an easement, it has the burden of pleading
the affirmative defense of easement, not just a gen’l
denial; burden of pleading corresponds with things
you have a burden of proving at trial…if you don’t
plead the aff def, you can’t bring in facts tending to
show it at trial.
• needs to be specified in the answer or it is deemed waived
• interesting pt – what can a party “reasonably be expected to
know” – if a response is based on something that the opposing
party “cannot reasonably be expected to know”, it’s more
likely that the response must be pleaded as an aff def.
• There’s all kinds of language in cases but usually what
courts are doing is deciding who they think should win, in a
close case. (I.E., if there’s no proof on the issue, do we err
on the side of D or P)?
← IV. AMENDMENTS –Rule 15
• No permission required:
o Party may amend before the responsive pleading is served (when the initial
pleading is a complaint, answer w. a counter-claim, or 3rd party claim)
o If no responsive pleading is permitted (i.e. answer), the party has 20 days
after it has served the pleading to amend
• Obtaining court permission: If deadlines have expired, a party may seek permission
from the court or by written consent of the adverse party; leave to amend “shall be
given when justice so requires”
o Court looks at:
• bad faith or carelessness of amending party (should they have known
about this, or were they withholding info for strategic reason)
• prejudice to the other party (D or P)
 o Beeck v. Aquaslide ‘N’ Dive: P sues for accident on waterslide. Slide mfr
answers admitting they mfg’d the slide, and denied negl. P’s and D’s insco’s
had looked at slide. D’s was gonna prepare for depo and claims it wasn’t
theirs. D wanted to amend its answer since it had discovered that it was not
the manufacturer of the slide. P: bad faith – careless in doing pre-answer
discovery; P: now we have to search out other Ds (predjudical). Court says –
leave to amend…no bad faith involved but they were careless in divulging
information – still not bad enough.
• Other party has 10 days to respond to the amended pleading or within the time
remaining for response to the original pleading, whichever period is longer
• Relation Back of Amendment:
o Rule 15(c): amendment relates back to the original complaint “whenever the
claim or defense asserted in the amendment pleading arose out of the
conduct, transaction, or occurrence set forth in the original pleading”
o Relevant when a party wants to add new claims after the SOL expired
o Test: Would the D be on notice from the initial complaint that this type of
claim would be coming later?
o How the 1st claim is phrased is relevant –if claim is broad, it will be easier to
bring a 2nd claim; if specific, it will be difficult
o Moore v. Baker: P’s initial complaint was lack of informed consent, P tried to
bring a neg’l claim (SOL had run).
• Focus on – initial suit was re actions before surgery; later complaint
about during and after surgery.
o Bonerb v. Richard J. Caron Found.: P’s initial complaint was a slip & fall in a
drug and alcohol facility, during a mandatory bball game and mentions
“negligent supervision” of P. P’s wanted to bring a counseling and rehab
malpractice claim, a claim related to the counseling that they gave him after
the accident; court allowed
o Better to plead broader claim, then plead narrower claim.
o Secret Rule 15(c) – if you amend to add a party, it’s ok within 120 days (time
limit to serve complaint/summons on a party); or you can seek leave to
include with additional service time “for good cause shown”
←
← DISCOVERY
← I. STANDARD
• Most lawsuits end in the discovery phase. People get a sense of what’s going to
happen and want to settle; or the other party gets worn down.
• We want discovery to help parties find things out…but we don’t want meritorious
suits gone bc they got worn out in discovery. Disco works better in small cases.
• ⇒ 1st questions to ask: Is the material relevant? Is the material privileged?
• Rule 26 (b)(1): parties may obtain discovery re “any matter, not privileged, that
is relevant to the claim or defense”
o Need to check local rules first !!! (mention on the exam)
• Relevant? info that tends to prove or disprove an element of the law
o “need not be admissible at trial …appears reasonably calculated to lead to
the discovery of admissible evidence”
o assets typically not discoverable –allowed when seeking punitive damages;
liability insurance cover must be disclosed
o Davis v. Precoat: P’s discovery request: complaints about race and nat’l origin
by employees from same plant over a 4 yr time-span; Ds argued that this
request was overbroad and that it’s possible from another source that was
more convenient, improperly seeking info about “all discriminatory practices;
request was granted bc it was limited to the plant in question.
o Steffan v. Cheney: Midshipman in the naval academy stated that he was a
homosexual. Based on the statements, the naval academy dismissed him
(based on board of review meeting). Steffan decided to challenge the ruling
on the dismissal in court. At a deposition, the navy’s atty asked steffan if he
was a homosexual. DC compelled an answer and Steffan appealed. The AC
reversed the DC. Suit was not about P’s homosexual activity, it was about his
statements that he was a homosexual (the record reasons for his dismissal).
• Privilege: info can’t be disclosed if from a specific person if protected by privilege;
info may still be obtainable from another source
o Common privileges: self-incrimination (5th Amendment); attorney-client;
doctor-patient; spousal
• Rule 26(b)(2) Court can limit relevant, nonprivileged discovery when: discovery
is 1) overbroad, cumulative or duplicative; overly expensive; overly burdensome
in relation to benefit; and 2) discovery has lasted long enough where there has
been “ample opportunity” to gain the evidence
o Burden-benefit factors for “overly burdensome”
• The needs of the case
• The amt in controversy
 • The parties resources
• The importance of the matters at stake.
← II. SEQUENCE
• Discovery conference: parties are required to meet “as soon as practicable” after
answer has been filed; if no settlement is reached, the parties are required to
submit a “discovery plan” within 14 days of the conference.
o Plan—subjects, timing, and form of discovery; any agreement btw the parties
that may limit or relax limits prescribed by the rules
o Discovery can’t begin until after this conference.
• Mandatory Disclosure: requires parties to turn over info; not all states require
o Initial—Rule 26(a)(1) **check local rules**:
• Within 14 days after the conference
• If a party (additional P or additional D) is joined after the discovery
conference, party gets 30 days to make initial disclosures
automatically.
• info: name and contact info of any person with discoverable info that
the party “may use to support its claim or defense”;
• a description or copy of all tangible things in the party’s possession
that they will use to support their claim.”
• computation of damages and description/making available of
damages-related evidence;
• **liability insurance policy available for copying. Must disclose
liability insurance policy to satisfy damages from loss of suit.
• Interrogatories—written questions (Rule 33)
o May only be sent to parties in the suit, anytime after the initial discovery
conference.
o limited to 25 questions **check local rules** –need to get authority from
court to ask more questions (Rule 33(a))
• if add’l questions are asked, does the opposing party get to pick the
ones they want to answer only or must they answer first 25 and then
object to the rest
• courts are split.
o Written questions to oppo parties only.
o Answer or object (state specific objection) to all interrogatories within 30
days of service of the interrogatories.
 o answering party has a duty to reasonably investigate before answering –if
answer is in records and the burden of ascertaining the info is the same for
both parties, the answering party produces the records so that the asking party
has to conduct its own research
o objections: all the objections discussed above, and privilege.
o pro: cheap
o con: limited questions, you can only promulgate them against parties;
typically you cannot follow up on a question.
• Deposition –questioning witness under oath (Rules 28, 30-32)
o Check local rules.
o May be used against parties or non-parties
o Limitation: only 10 depositions allowed per party total (including party and
non-party witnesses), Rule 30; special permission to depose a prisoner; local
rules and stipulations of the parties may allow for more, 8 hrs long, a person
can only be deposed once without leave.
o To take depositions of party witnesses, serve notice on all parties; give
name and address of deponent; give time and place for deposition. Can
also request production of documents in connection with deposition
notice (Rule 34 compliance of course).
o Subpoena is required to depose non-parties
o If under subpoena, designate materials to be produced as well via
subpoena
o Deposing corp or associations and not know which employee has the relevant
information, use Rule 30(b)(6): deposition of person with the most
knowledge (person most knowledgeable or PMK) “I’m scheduling the
deposition of the person most knowledgeable about X” – simply describe in
detail the info being sought and corp will provide the appropriate person at the
depo
o Deposition must be done before someone who can give an oath.
o In a deposition:
• even when the person doesn’t know or outside scope of discovery they
have to answer.
• Object for the record but the person still has to answer.
• Instruct client not to answer when (Rule 30(d)(1) and 30(d)(4))
• Necessary to preserve a privilege
• Enforce a limitation directed by the court
 • Argue that depo is being conducted bad faith or in order to
oppress harass.
• How to get around an atty ordering client not to answer.
• Slow way – move to compel, Rule 37.
• Fast way – motion under 30(d)(3), improperly instructing witness
not to answer.
• Calling the judge – a third way.
o Protective orders: party may seek a protective order when the depo is
being conducted in bad faith or in a way that unreasonably annoys,
embarrasses, or oppresses the deponent –order must be obtained by a
district judge, disturbing him in the middle of the depo
o Pros: can ask follow up questions; evaluate witness’s credibility and potential
for trial
o Con: expensive (party taking deposition must pay for room, atty fees, court
reporter) and time consuming
o If you show up late or not at all, you have to pay the other party’s costs
(unless good cause shown)
• Requests for Production and Inspection of Docs and Things (Rule 34)
o Can only serve RPD’s on parties; the alternative to an RPD for a non-party is
a subpoena.
o Non-parties—Rule 34 doesn’t apply but 2 other methods exist:
• 1. Deposition subpoena –may request that person bring certain
documents
• 2. If testimony isn’t necessary, may simply obtain a subpoena
requiring the non-party to produce certain documents
• (Rule 45 subpoena)
o no limit on no. of requested documents
o objections (Rule 26) must be lodged within 30 days.
• docs are privileged or not relevant
• court can limit the request
• unduly burdensome or oppressive
• Request for Admission (Rule 36): allows a party to ask another party to admit
certain matters
o Used to weed out information before trial
o Answering party may admit, deny or object
 o If admitted or not responded to, treated as conclusively established for present
case but not for all cases.
• Physical and mental exam (Rule 35), only for parties. party can be forced to submit
to an exam
o Court order required, must be for good cause shown.
o Condition must be in controversy and there must be genuine dispute
o Info must not be obtainable by another source (i.e. medical records)
o Person performing exam must prepare a report. The person being examined
shall be entitled upon request to
• Pre-trial disclosures, at least 30 days before trial, provided to parties and court
Rule 26(b)), need to object within 14 days after disclosures are made.
o Disclose:
• Witnesses info (name/address/telephone no.), who will we call, who
might we call.
• Witnesses whose testimony will be presented via reading their
deposition.
• Appropriate identification of documents to be used.
• Disclose experts names and addresses.
← III. LIMITATIONS ON DISCOVERY
• Protective Order under Rule 26(c): party may seek a protective order when any
type of discovery is being conducted in bad faith or in a way that unreasonably
annoys, embarrasses, or oppresses the party
o Deposition: order must be obtained by a district judge, disturbing him in the
middle of the depo
• Protective order is possible in cases of Privacy for third parties or Parties:
unnecessary intrusions into private matters are common reasons for a protective order
o Stalnaker v. Kmart: sexual harassment suit, P wanted to depose other
employees re romantic or sexual conduct with the D; court limited
discovery to questions regarding D’s conduct only and no 3rd parties;
court balances the relevance of the information against the interests in
privacy of the affected parties. it was very relevant
• Protective order is possible in cases of attorney work product –docs prepared in
anticipation for litigation
o common law before FRCP: court recognized the doctrine in Hickman v.
Taylor (applied only to items prepared by attys); extended so that work
product material in generally not discoverable
 o Hickman v. Taylor: tugboat sank for no apparent reason. Public investigation
ensued, and also D tugboat owner hired lawyer Fortenbaugh to interview of
the surviving tugboat attendants. Some attendants survived and others didn’t.
• 4 out of 5 families of dead attendants settled…but 5th family didn’t.
brought suit. P family SERVED interrogatories on D company asking
for F’s notes.
• F’s notes are covered by atty work product.
o Rule 26(b)(3) exception: Party may only obtain documents and tangible
things prepared in anticipation of litigation if the party seeking the material is
in “substantial need of it and it can’t otherwise be obtained without
undue hardship” or from other sources
o Written signed statements –a party may obtain a copy of its own statement
from the other side’s representative without showing cause
o No disclosure of mental impressions, conclusions, opinions or legal theories –
• Protective order is possible in some cases with experts (Rule 26(b)(4))
o All experts must be disclosed at least 90 days before trial in pretrial
disclosures (26(a)(2))
o Testifying experts
• Identity information and summary of findings must be provided to
other party, the party that’s not going to call them.
• can be deposed.
o non-testifying experts (Rule 26(b)(4)(B)): A party may discover relevant,
nonprivileged facts known by a non-testifying expert ONLY upon
“exceptional circumstances” shown, whereby it is “impracticable” for the
party to obtain the information by other means.
• Thompson v. Haskell: P was wrongfully terminated and claims
wrongful termination caused depression. That report from that Dr was
the only report available. Mental state at particular time was crucial so
party was allowed to discover the opinions of a non-testifying psych
who examined the party during that time period (underlying facts are
no longer available, party could never have known about lawsuit
coming up at time of the examination).
• Chiquita: party wanted material from an expert who visited the site;
court didn’t allow since the party could have sent their own expert to
visit the site; not “impracticable” because Chiquita didn’t send an
expert when they could’ve.
← IV. ABUSES AND SANCTIONS
• Signing discovery documents is governed by Rule 26(g) –
o Rule 11 governs sanctions re signature of disclosures but nothing else with
discovery. Rule 26 says “shall” impose sanctions when there is a violation
of the signing requirements in discovery/disclosures; contrast with Rule
11 where it says court may impose sanction for violation.
• Compelling Discovery governed by Rule 37
o Motion to compel discovery –if answering party doesn’t comply, requesting
party may make a motion seeking an Order Compelling Discovery from the
court and request attys’ fees incurred in bringing the motion
• Prior to motion, parties must meet and confer or attempt to meet and
confer.
• Court “shall” order losing party to pay winning party’s attys fees,
unless the non-responding party was “substantially justified” in
not responding to discovery. If party attempting to compel loses,
then the other party may benefit from a protective order issued by the
court.
o Sanctions for disobeying court order: violation of an order exposes the party
to additional sanctions under Rule 37(b)(2)
• Add’l sanctions 37(b)(2) – not complying with order to compel or a
protective order: may be imposed on a party refusing to provide info,
they include “such orders…as may be just”; including:
• You have to admit what you don’t want to admit for purposes
of trial
• You can’t include certain evidence in your defenses or other
papers
• Staying of further proceedings or dismissal of key pleadings or
portions in case.
• Contempt of court.
• Attorneys fees and costs
o Sanctions for failure to disclose in initial disclosures or pretrial disclosures
(Rule 37(c)): evidence can’t be disclosed at trial; court may impose “add’l
sanctions” in Rule 37(b)(2) and may also inform the jury of the failure to
disclose
o Failure to attend deposition: court will order costs and atty’s fees Rule 37(d)
• Don’t need to meet and confer before filing motion for sanctions
 o If the party fails to answer interrogatory or comply with request for
inspection, any of the sanctions (except contempt) from Rule 37(d) are
possible.
• Failure to answer interrog, need to meet and confer before bringing
motion for sanctions.
o Thompson v. Dept of Housing & Urban Development: P sought discovery of
20 yrs of records from HUD as part of a civil rights case; judge required
parties to meet and confer about what discovery would not be “overly
burdensome”
o Poole v. Textron: D failed to comply with P’s discovery request and did not
have an explanation; court invoked sanctions under 26(g)(3) and 37(4)(a)
← RESOLUTION WITHOUT TRIAL
← I. ALTERNATIVES TO LITIGATION
• Rule 12(b)(6) – complaint fails to state a claim upon which relief can be granted.
• Settlement – contract btw parties to resolve the dispute
o Usually cases are settled outside of court by the parties in a contract, but
occasionally the court is invoked to seal and protect the settlement; it can be
order for confidentiality, in the class action context the court has to certify that
a settlement was fair.
o Benefits: less expensive; public image issues; mkt standing; ability to seek
other jobs or find another to way to get what they want; uncertainty from trial,
no one really knows what a jury is gonna do.
o Confidentiality clauses
• Terms and conditions are made confidential;
• One may to secure confidentiality is with a monetary penalty: a
“Liquidated damages” –need incentive to follow agreement;
too difficult to determine value of a breach (avoid having to
relitigate the dispute and the damages from confidentiality
being breached)
• Pros:
• D may pay more with the clause included since doesn’t
want to become the target in add’l lawsuits
• Documents returned to you
• Don’t want be a target in another lawsuit.
• P may benefit bc they can ask for more money,
confidentiality is a bargaining tool.
 • Declogs the court system and less cases on docket, less
$ spent by American taxpayer.
• Cons:
• Wealthy parties can buy silence –future people with
similar allegations can’t get the information that might
assist their claims
• Affects public safety and welfare – important questions
that would have to be answered truthfully in court now
won’t have to be answered at all.
• Another way to get settlement agreement confidentiality is to have
court seal the agreement and make confidentiality a contempt of court
issue.
• Kalinauskas v. Wong: P sued Caesars about sexual harassment. P
wanted to discover discoverable (relevant and nonprivileged)
information from prior employee (ie depose prior employee and find
out what settlement amt was) who filed suit, to assist in proving her
sex harassment. Other employee who concluded a previous settlement
agreement w. a confidentiality clause. D wanted info about prior
employee and about settlement protected since it bargained for the
silence of the prior P; Court conducted an in camera review of the
sealed records. Court issued limited subpoena; prior P will have to
testify about substantive issues but not terms of the settlement
• IN some ways Caesars is not getting what it bargained for.
• For reasons like this, many courts don’t want to seal
settlements and make them confidential with court’s sanction.
• Court said that it would be “overly burdensome” to obtain
information some other way; limited protective order
issued. Balances need for discovery in this case with need
for confidentiality in earlier case
• Mediation (ADR) –assisted negotiation of a 3rd party
o Mediator: court required or
o Private mediator hired by parties
• Tony Piazza – 10k/day or 7k/day and fly to Hawaii.
 o Tools: meet privately with each party; have parties understand the
pros/cons of settling; get through to the clients; gives clients a chance to
tell story to a neutral party; perhaps a non-monetary factor involved (i.e.
pride); not ruling on the merits, just helping parties negotiate
o Oftentimes parties will the substantive law and have mediator make decisions
on their gut.
o Limitation: no binding power.
• Arbitration –enlists 3rd party who renders a binding decision
o Why is it attractive?
• Faster and cheaper; allows party to control substantive law and
procedure; get someone with expertise and experience in the field;
o Parties have less protection since no due process respect (judicial system’s
check on fairness) is applied in courts and not to private parties
o Hard to ensure neutrality; difficult to appeal.
o Arbitration clauses –enforceable?
• Previously the clauses were looked upon with suspicion.
• Becoming more enforceable bc judges want to relieve burdens on the
system
• Determination of whether clause is enforceable and valid is based on
contract law – typically doctrines of unconscionability.
o Ryan’s Family Steakhouse
• One court held that arbitration clause in contract was unenforceable
since the contract was illusory – didn’t define the arbitration process
sufficiently, Ryan’s can change arb process or change arb anytime.
• Another court held that clause was enforceable; party tried to argue
unconscionability. And the state law on unconscionability in that
particular case was less favorable to P. So arb was unconscionable…
but prior court had found it illusory
• Need to make lots of diff types of K arguments.
 o Ferguson v. Writers Guild of America: Writers Guild members are required to
arbitrate any conflicts. Ferguson challenged a writing credit for a screenplay.
WGA rules said, we have people who are writers look at the facts
anonymously; before they look, there’s a hearing on what they can look at.
Ferguson argued: 1) process was unfair or unconscionable and shouldn’t be
upheld; 2) even if process was fair, they didn’t follow the procedures (he
claims that the judges didn’t get copies of subst rules). Court looked at
protocol to determine undue hardship; but they said their review was very
limited, only stopped if “fundamentally unfair”. As to whether the
substantive rules were followed the court said there needs to be a material
and prejudicial departure from the procedures specified.
← II. SUMMARY JUDGMENT
• Rule 56 (c): “SJ granted if record shows that no “genuine issue of material fact”
and the moving party is entitled to judgment as a matter of law”
o Evaluates the sufficiency of the facts under the allegations
o There’s enough evidence via discovery there for someone to prove or
disprove what they need to prove (meet burden of proof)
o Treated as a final judgment on the merits (res judicata effect)
• Distinguishable from 12(b)(6)
o Facts are evaluated here (is P powerless to prove any or all allegations in
complaint, based on record and discovery). “no rational jury could
conclude in favor of non-moving party based on these facts in the record,
viewing facts in light most favorable to non-moving party.”
o Vs. 12(b)(6) we look at complaint and say “Even if all P’s allegations in the
complaint are true, is prevail if all the allegations are true
• Either party can move for SJ before trial commences
• Motion and accompanying material:
o Serve notice on all parties first at least 10 days before time fixed for hearing;
opposing party files opposition before the day of the hearing; accompanying
memorandum of law to support.
o Explain why there are no factual disagreements - “Separate statement of
undisputed facts”
• affidavit = written document swearing that the testimony is true –
made on PERSONAL KNOWLEDGE (NOT SOMETHING
SOMEBODY TOLD THE ATTY OR PARTY) and facts that
would be admissible
 • discovery material included to support the affidavit: answers to
interrogatories, and depositions, in real life they use documents
from discovery provided by opposing party.
• adverse party opposing MSJ must provide specific facts showing
that there is a genuine issue for trial.
o Hearing held on MSJ; usually oral argument.
• Evidence:
o viewed in the light most favorable to the non-moving party
o does not weigh competing evidence since that if factfinder’s responsibility
o even if there’s one sketchy witness vs. 8 jesuit priests, you don’t weigh
credibility.
• Timing
o Claimant may make motion after defending party does or 20 day after the suit
begins OR after D moves for SJ. – Rule 56(a)
o Defendant can make motion for summary judgment at any time. Rule 56(b)
• D’s motion for summary judgment:
o Adickes view: Burden is on the moving party (the party moving for SJ)
regardless of which party bears the burden at trial
• D had to prove a negative – they have the burden of production to
show that P can’t meet their burden of proof at trial; must provide
some evidence even though this wouldn’t be necessary to succeed
at trial
• “Can’t win at trial due to X”
• D bears burden of production – has to produce evidence showing
that P cannot meet their burden
• D had to discharge their burden on S.J. they had to produce
EVIDENCE indicating that there was NO WAY that P could meet
their burden. Pretty tough to do.
• not only needed to say, there’s no avail evidence in P’s hands…
they also had to prove there’s NO WAY that P can make their case
at trial.
• Makes summary judgment too impossible
 o Celotex view:(ASBESTOS CASE)
• Burden of production at SJ is on party that bears burden of prod’n at
trial.
• P has to show what their evidence; D can just say there is no evidence.
• much easier for D since he doesn’t carry the burden of production
• D doesn’t need to offer proof to negate P’s claim, but only show
that P has failed to meet the burden of production they will have
to meet at trial
• If P hasn’t introduced evidence on each and every element, the
motion should be granted
• P’s motion for summary judgment:
o Courts reluctant to grant since even if D offers no evidence, a jury may
not believe P’s evidence
• Bias v. Advantage Int’l, Inc: P sued for a life insurance policy and D moved for SJ
since Ps could not prove that their kid, Bias, was NOT a drug user. If Ps can’t prove
that Bias was NOT a drug user, then they cannot prove actual cause.
o Non-moving party must have substantial evidence to counter the movant’s
motion for summary judgment on each issue, so that reasonable people would
disagree
• Specific evidence valued more highly than general evidence in
countering MSJ.
• Parents and coach “I never knew him to be someone who uses drugs.”
• Kids say “I witnessed him using drugs”
• Court said that P’s could not meet burden of proof that Bias was
not a drug user. Ps had to bring evidence specifically rebutting
D’s witnesses on drug use of Bias.
• What could P’s have done differently – get athletes to specifically
impugn credibility.
← MANAGING LITIGATION
• Rule 16: After the initial discovery conference and filing of “discovery plan”
within 14 days, judge consults w/attys at scheduling conf or some other way and
makes scheduling order:
o deadlines for discovery
o amendments, joinder;
o dates for future conferences (including pre-trial conference)
o trial
 o Schedules not modified except upon good cause and by leave of judge
• Final pre-trial conference: held very close to trial to formulate trial plan, including
administering admission of evidence
• RULE 16(E) – order following FINAL PRETRIAL CONFERNCE,
CAN ONLY BE MODIFIED TO PREVENT ‘MANIFEST
INJUSTICE’. Final pretrial conf is ‘put up or shut up’ time. Key –
learn this.
• McKey v. Fairbairn: neg’l case re fixing roof leak; at final pretrial
conf, they said to atty, do you want to add anything or are you just
proceeding with this negl. case. It turns out P had claim based on DC
housing statute, SL for landlord when roof leaks. Atty wanted to
amend complaint; P will lose if claim can’t be included.
• P loses – there is no “manifest injustice” by not allowing her to
amend her complaint.
• Sanctions: if party fails to obey an order or misses a conference or fails to
participate in good faith, the court may issue sanctions and shall issue atty fees
and costs unless substantially justified
• Orders: issued following a pretrial conference
o Sanders v. Union Pacific RR
• Sanders sued UPR under fedl employers’ liability act for a work related
injury. Judge set a pretrial conference – get attys to meet w/judge and find
out whre they are in terms of having these things. Atty fails to comply,
misses conferences. Judge’s clerk is running final pretrial conference.
Clerk says she’ll tell the judge.
• Judge dismisses the case with prejudice
• Reversed on appeal. Judge has a lot of discretion but he screwed up here.
• Bilateral exch of docs is better than unilateral exchange; very
prejudicial to other party when someone’s misbehaving.
 • Rule 16 - Dismissal with prejudice in cases where party violated
pretrial orders –factors to consider
• 1. Prejudice to the non-violating party caused by violating
party’s screwup.
• 2. Availability of lesser sanctions (Rule 37 sanctions are
mentioned as possible candidates in Rule 16 re scheduling
orders).
← THE TRIAL AND RULE 50.
• Tension btw juries’ role of deciding cases and rational outcome
o Not about est’b the truth; trials about enabling fact finders to make inferences
as to what happened in the midst of contradictory evidence
o Juries don’t get to decide every factual issue; only allowed to make
rational inferences
o Courts don’t entertain probabilistic proof
o Reid v. San Pedro Railway: the evidence indicates that cow could have come
thru from either one of two sources. P’s evidence was that there was a break
in the fence far from where cow was killed; D’s evidence was that the break
was closer and that cow wandered on from there. Jury found for P, D moved
for sum jdgt. Cour granted; no “rational jury could conclude in favor of P”
(see below)
• It is a familiar rule that when the evidence could rationally pt to
either of two outcomes, the P has not met their burden of proof
(must show that one outcome was more likely than the other).
• Judgment as a Matter of Law (j.m.o.l.)
o Rule 50 standard: “a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue”
• Court should consider all evidence & reasonable inferences in
light most favorable to the party opposed to the motion
• Hypo 1: 75/25 cab split; no other evidence. No jury
• Hypo 2: Hypo 1, but one witness says “Yellow cab” – to jury;
deny MJMOL.
• AKA – Motion for directed verdict.
• “If the facts and inferences pt so strongly and overwhelmingingly in
favor of one party that the court believes reasonable men could not
arrive at a contrary verdict, granting of motions is proper.”
 • Motion is proper if all the facts and inferences point so strongly and
overwhelmingly in favor of 1 party
• → Look at all evidence in favor of party opposed to the motion,
and given that, could reasonable people disagree on a factual issue
o Move for JMOL at close of P’s evidence and close of all evidence.
• Unlikely to get JMOL before case goes to jury; even if judge
agrees with you, he wants judgment on the record that can be
reinstated.
o Jury, not judge, supposed to assess credibility; yet courts don’t always follow
the standard so strictly and will intervene if witness is completely
unbelievable
• PA RR v. Chamberlain: (judge learned hand opinion) witnesses have
contradicting stories; court allowed for j.m.o.l. even when there was
contradictory witness bc witness was so relatively uncredible.
• Judgment not withstanding the verdict (JNOV) – modern innovation. Made
after the jury has ruled.
o Standard the same as JMOL –judge is never allowed to assess witness
credibility
o j.m.o.l. motion must be made during the trial to file a j.n.o.v. – JNOV is
actually called “motion to renew motion for judgment as a matter of law”
o Must be filed within 10 days after entry of judgment
o Benefit: if j.n.o.v. reversed later, judgment simply gets reinstated and not a
new trial
o Combination of j.n.o.v. and alternatively, new trial:
• Typically a motion for a new trial is made as an alternative with a
j.n.o.v.
• If a j.n.o.v. is granted, a judge may grant the new trial
conditionally. Then, if j.n.o.v. is reversed on appeal, they can do a
new trial.
• New trial
o Party may move for new trial within 10 days after judgment or judge can
grant a new trial sua sponte
o 2 categories:
• 1. Flawed jury verdict (“seriously erroneous result”, against the
“great weight of evidence”)
 • easier standard than JML’s standard of “no reasonable
jury”
• judge may evaluate evidence but can’t substitute own
opinion for that of a jury
• gives judge some leeway – “in judge’s view”.
• ex: jury instructions, wrong law, weight of evidence
• 2. Procedural error
• harmless error not grounds for new trial
• ex: improper admission of evidence, judge’s improper
commentary, outside influences on jury
o Appellate court’s review of a motion for new trial: lax standard of review—
only if trial court abused its discretion
• evidence specific so should be up to the trial judge
← JUDGMENTS
← I. CLAIM PRECLUSION – aka “Res Judicata”
• Once you’ve had your day in court, you can’t argue forever.
• 1. Final judgment –judgment is considered final even though an appeal is pending
• 2. Judgment on the merits
o 12(b)(6) motion or state equivalent qualify even though no facts have been
determined since courts are very liberal at the pleading phase (granting leaves
to amend) before dismissing with prejudice
• 3. Claims are the same in both suits
o majority approach (R. of Judgments), used in Frier case: all claims
arising from a single “transaction” –all matters “related in time, space,
origin, and motivation” (same core of operative facts) –
• “once a claim regarding a certain transaction has been
adjudicated, all other claims regarding that same transaction are
barred.”
o “minority” approach from Frier case – “same cause of action” approach: the
only way a claim is barred is if it’s the “same cause of action.” Something is
considered the same cause of action if the same exact evidence that
sustained the 1st claim is necessary to sustain the 2nd claim.
• “once a claim regarding a certain transaction has been
adjudicated, all other causes of action requiring the same evidence
to sustain them are barred.”
 o “Same claims” can also mean compulsory counterclaims or aff defs that
are not brought.
• Failing to bring defenses and counterclaims can also bar future suits: a
party can be barred from bringing a claim when it could have
brought that claim as an affirmative defense or a compulsory
counterclaim in a previous lawsuit
• Rule 13-based claim preclusion: Pleading shall state a
counterclaim if it “arises out of the transaction or occurence
that is the subj matter of the opposing party’s claim”. If you
fail to bring
• Check to see if state follows fed’l rules or has its own
with regard to barring future suits on compulsory
counterclaims.
• common law claim preclusion rule: even if rules don’t
require D to bring a particular counterclaim, if the claim would
have been a affirmative defense in the 1st claim, the suit is
barred
• Martino v. McDonald: Rule 13 didn’t apply since there was
never a pleading but court held that the anti-trust claim could
have been a defense in the original breach of K claim
• 4. Same party in both suits –strictly interpreted.
o One kink is that “Parties in privity” are also barred –parties must have mutual
or successive interest in the same property
• Searle Brothers v. Searle: Divorce case btwn husband and wife with land
in dispute. Land Goes to wife. Later on a partnership of Dad and sons
asserts rights to half of land bec the partnership’s funds were used to buy
the land.
• Wife claims claim preclusion – bc husband and sons were in privity
due to partnership; so the airing of his concerns in divorce sufficiently
covered their concerns for purposes of claim preclusion (privity
concept)
• Utah Sup Ct said no claim preclusion– they said there’s not privity
here. The first case was btwn husband and wife, not sons (divorce).
Sons could’ve intervened but they didn’t have to.
• Dissent says yes, claim preclusion – sons were implicitly involved.
• Policy rationale
 o efficiency
o consistency –potential of inconsistent judgment casts doubt on legal system
← II. ISSUE PRECLUSION – aka collateral estoppel:
← When: 1) issue of fact or law has been 2) actually litigated and determined; 3)
through a valid and final judgment; and 4) the determination of the issue is essential to the
judgment, then the determination is conclusive in a subsequent action btwn the same
parties, whether on the same or a different claim.
• 1. Same Issue of fact or law
o won’t apply if the same issue was applied in different contexts (i.e. civil and
criminal) w. higher burden of proof in 1st suit
• 2. Issue has to be actually litigated and determined – there has to be a specific
finding of fact regarding a certain issue in the case.
o Issue preclusion won’t apply when court or jury could have reached result for
various reasons and doesn’t specify the deciding factor
• IL Central Gulf RR v. Park: P filed suit for loss of consortium when
wife injured in accident, P lost his first suit. P then brought a neg’l
claim for his own injuries and RR tried to raise issue preclusion. RR
argues that P’s contributory negligence was established when P lost his
consortium suit. Court rules that there’s no issue preclusion bc jury
have found contributory neg’l of P, or they could have just found P
had no damages. We don’t know what issues were actually litigated
and determined in the jury’s verdict in the first suit.
• 3. Through a valid and final judgment – obvs.
• 4. The determination of the issue is essential to the judgment – we have multiple
findings of fact, both of which could lead to the conclusion in the judgment
o Bench trials: if judge gives alternatives, no issue preclusion ON ANY ISSUE
IN THE ALTERNATIVE, ACCORDING TO REST. OF JDUGMENTS.
• Parties’ involvement –Victim and Precluder
• General Rule – If the victim of preclusion has already had a chance to
litigate the issue in court, the issue may be precluded from relitigation.
 o Traditional view required complete identity of parties
o Current view:
• Only applies to people who were parties in the 1st suit, but there are
other loopholes.
• Defensive use = party using issue preclusion is trying to defend a
claim in 2nd suit – “issue preclusion as a shield”
• When P2 sues D after D was found not liable in first case
btwn P1 and D, issue preclusion can NEVER be used as a
shield by D in second lawsuit. (the victim of issue preclusion
was not in the first case).
• When D1 was found not liable in first case and P then sues
D2 on the same issue, issue preclusion can ALWAYS be
used as a shield by D2. (the victim of issue preclusion had
oppty to litigate in first case)
• Offensive use = party using issue preclusion is trying to recover a
claim in 2nd suit
• When P1 has already defeated D in a prior case on that
issue, issue preclusion can SOMETIMES be used as a
sword by P2,
• But:
o 1. Not when P2 could easily have joined first
case (parklane)
o 2. Not when P1 and D were in a case for
nominal or small damages (Parklane)
o 3. Not when there are conflicting judgments
against D in prior cases (State Farm).
• When P wins against D1 and tries to use issue preclusion
against D2, issue preclusion can NEVER be used as a sword
(“victim was not a party to the first case”)

← JOINDER OF CLAIMS
• Rule 18: A party asserting any type of claim may join as many claims as the
party has against the opposing party –the claims need no relationship with each
other
o Each claim needs an independent basis for assertion of jurisdiction.
o Personal and subj matter are typically the barriers
 o Unrelated claim won’t meet 1367 test for supplemental jdx…won’t work
jurisdiction wise.
• Counterclaims
o Rule 13 - : allows the D to bring any claim against the P
o Permissive Rule 13(b) –allows the D to bring any claim regardless of
whether it is related to the P’s claim
• Need independent jurisdictional basis.
o Compulsory Rule 13(a) –if D has a claim that arises under from the same
“transaction or occurrence, or set of transactions or occurrences.” as the P’s
claim, the D must raise the claim in his responsive pleading (ok to use supp
jurisdiction to hear claim, court will use it)
• Tests to determine whether compulsory:
• 1. Logical relation test
• Do the claim and counterclaim derive from the same
underlying set of facts (even with different subsets of
facts)?
• 2. more restrictive - Substantially the same evidence in P’s
claim and D’s counterclaim
• Is there overlap between the core facts of the claim and
counterclaim?
• 3. more restrictive – largely the same issues of fact and law?
• 4. Would claim preclusion bar a subsequent suit on D’s claim if
it wasn’t brought as a counterclaim?
• 5. Restatement of Judgments approach: are the matters
“related in time, space, and origin”?
o OK to obtain leave from the court to set up a counterclaim by amendment, if
you don’t raise it initially.
o Plant v. Blazer Financial Service: P’s suit was a Truth in Lending Act (fed’l
question). Ds counterclaim was regarding an unpaid balance on the note
(state claim). P wins, but then the court offsets the unpaid balance of the note
against her award. Is it a compulsory counterclaim or not (if permissive, no
jdx over claim). Court followed the logical relation test to determine that
the claims arise out of the same transaction – bc there’s lending materials
and a note in the same transaction.
• Underneath the neutral language can be a normative
judgment/assessment.
 • Cross-claims
o Rule 13(g): allows one co-party to file a claim against another; i.e. 1 D against
another D
o Cross-Claim must arise from the same transaction or occurrence as
either the original complaint or a counterclaim
o Always optional and never required, unlike compulsory counterclaims that are
required
←
← JOINDER OF PARTIES
• Rule 20—Permissive Joinder of Parties: people can be joined as P’s or D’s if:
o 1. Arises out of the same transaction or occurrence, or a series of
transactions or occurrences; AND:
o 2. Some “question of law or fact common” to all the parties arises in the
action
• Mosley v. General Motors: 10 Ps sue employer alleging race and sex
discrimination at different plants, they had different instances of
discrimination.. Court allowed joinder. Even though P’s were
subjected to individual acts of discrimination, court held that the
alleged decision to enact discrimination policy was the same
transaction. D’s discrimination policy was considered the same
common fact (existence of discrimination policy).
• Reality is, this case is harder for GM to try with all the P’s in court
together. Also, individual cases will be more expensive for GM to try.
• In response to a counterclaim or cross-claim, the party can implead another party in
compliance with these rules
• 3rd party claims (impleader)
o Rule 14—D may bring in other parties into the suit who are liable or may
be liable to the 3rd party P for all or part of the original claim against the
3rd party P.
• Implead a party that isn’t already in the lawsuit
• D has to make decision to implead within 10 days of being served;
otherwise it has to be by motion.
o 3rd party must be derivatively liable based on substantive law
• typical scenarios:
• 3rd party P may have a right to seek contribution or indemnity
against the 3rd party D.
 • 3rd party D may have agreed by contract to indemnify the 3
party P.
• “Him not me” argument doesn’t work: i.e. if a neighbor burned down
the chicken coop, ∆ can’t bring that neighbor in as a 3rd party, but ∆
can discuss him at trial
• Governing state or fed’l substantive law must provide a basis for the
3rd party P to recover from the 3rd party D (in even fo 3rd party P losing
prime suit; or impleader will be unavailable.
• Price v. CTB: Latco wanted to implead ITW. State law held
that 3P ∆ would only be liable to 3P Π if the 3P Π was found
faultless –court allowed D to implead
• Motivations not to implead 3rd party:
o Empty chair defense.
o Have to answer claims of 3rd party D.
• Motivations for impleading 3rd party:
o 1. concern about disposal of 3rd party’s assets.
o 2. efficiency
o 3. makes case more difficult for P to try.
o Timing: impleading complaint must be filed within 10 days of serving the
answer.
• if after 10 days, must make a motion to the court and factors to
consider:
• 1. movant deliberately delayed in filing the motion
• 2. impleading would unduly delay or complicate trial
• 3. prejudice to the 3rd party D and the P.
• 4. 3rd party’s complaint states a claim upon which relief
could not be granted
• balance the benefits derived from impleader against the
potential prejudice to the P and 3rd party D
o Other procedural issues—3P complaint is viewed like an original claim
• 3rd party D must bring any compulsory counterclaims (arising from
same transaction or occurrence of the 3P claim) against 3rd party P.
• 3rd party P may also implead a party not in the suit who may be liable
to the 3P D based on the 3P complaint.
• 3P ∆ can assert against the Π any defenses it has to the original Π ’s
claim since his liability is based on the validity of the original claim
 • 3P ∆ filing claim against a D other than the one that impleaded him
• Whats the answer?
• Π and 3P ∆ can file claims against each other (cross-claims) that
arise from the same transaction or occurrence that is the subj of the
original claim ( Π v. ∆ )
• these related claims need not be filed (since diversity jdx could
be defeated), but once the Π files a claim against the 3P ∆ , he
must file any compulsory counterclaims
• compulsory counterclaim rule may not apply in the
reverse situation when the 3P ∆ files against the Π
since the rule doesn’t explicitly state
• Jurisdictional issues
o Suppl. jdx& joinder –tests basically the same, so a claim satisfying joinder
would satisfy supplemental jurisdiction.
• Suppl. test: common nucleus of operative facts
• Joinder test: same transaction or occurrence
• Joinder rules that satisfy:
• Compulsory counterclaims
• Cross-claims arising from same T or O as Π ’s claim
• Parties joined by a counterclaim or cross-claim
• Impleader
• 3P D’s claim against P
o In fed’l court on diversity jdx, the court shall not have supplemental jdx over
claims by the P against persons made parties under Rule 14 (3P claim), 19,
(joinder), 20 (joinder), or 24 (intervention) § 1367(b)
• Π can’t assert a claim against a 3P ∆ if the claim would defeat
diversity jdx (need both citizenship diversity and amt in controversy)
• what would be other examples ???
• Yet, if the original claim was in fed’l court on fed’l question,
then Π may use suppl. jdx to assert a state claim with no
diversity against a ∆
• probably ok if the 3P claim btw the 3P Π and 3P ∆ defeats diversity
jdx
o even if joined claims meet requirements, the court may stil refuse to exercise
suppl jdx over the claim based on factors in §1337(c)
• Compulsory Joinder –Rule 19
o Defense method not a joinder method –comes into play when a party moves to
dismiss the action through a 12(b)(7) or in the answer for failure to join a
party under Rule 19
• If court determines the party should have been joined, it orders the
nonmovant party to join that party; if the party can’t be joined, the
court must determine whether or not to dismiss the claim
o 1. Is the party to be joined a “Person to be joined if feasible”?
• Yes,if one of the 3 situations is met:
• 1. Person’s absence precludes complete relief to the parties in the suit
• 2. Person’s absence prejudices himself
• Def’n: “Missing person claims an interest to the subj matter
and the absence may impair or impede his ability to protect that
interest”
• Interest must be direct to the action
• Interest need only be impaired as a practical matter that a
judgment would make it significantly more difficult for the
person to protect his interests
• 3. Person’s absence prejudices other parties
• Def’n: “Missing person claims an interest to the subj matter
and the absence would leave other parties subj to a substantial
risk of incurring double, multiple or inconsistent obligations”
o 2. will joinder of “person to be joined if feasible” destroy jurisdiction?
o 3. is the “person to be joined if feasible” an “indispensable party?
• If the P refuses to join the missing party, the court will usually dismiss
the case
• If missing party can’t be joined due to jdx issues, the court will
consider 4 factor test; continue or dismiss case?
• 1. Extent a judgment rendered in the person’s absence would
prejudice the absent party –similar to above but focus is on the
degree of prejudice
• 2. Whether any prejudice could be reduced by protective
provisions in the judgment, the shaping of relief, or other
measures
• 3. Whether a judgment rendered in the person’s absence will be
adequate –factor is basically met when determined that the
party is indispensable
 • 4. Whether the Π will have an adequate remedy if the case is
dismissed
• Hezberg’s Diamond Shops: Π is a tenant in a shopping mall owned by
the ∆ . The lease contained a non-competition clause but ∆ breached.
Π sued to enjoin ∆ from leasing the store to Lords. ∆ moved to
dismiss under Rule 19 claiming Lords as an indispensable party. Court
held the party isn’t indispensable although it will lead to inconsistent
verdicts. Court seems to be assessing the merits of the claim although
they shouldn’t have been.
• Rule 19 does not require a Π to join all potential tortfeasors since Π
should have some level of autonomy over the ∆ ’s in the suit
• Temple v. Synthes Corp: Π sues manufacturer of medical
device and ∆ claims that the surgeon and hospital are
indispensible parties. ∆ can seek indemnity or contribution
from the missing parties and any verdict won’t negatively
affect the missing parties.
o Adding the missing party to the case:
• If party should be a ∆ , then joined under rule 20
• If party should be a Π , rule 19 explicitly allows the court to make the
person a ∆ or an involuntary Π
• Joining the party may be impossible if the court lacks jdx or if
diversity jdx is destroyed
o Common uses of compulsory joinder
• Cases involving an obligation on which 2 or more persons are either jt
obliges or jt obligors
• Ownership or interest in real or personal property
• Cases involving representative parties when 1 isn’t included
• Cases involving claims to a limited fund or pool of assets so that the
party brings the claim later, the funds may be depleted
• Intervention –Rule 24 allows stranger to the lawsuit to join as a party to protect his
interest or rights
o 1. Permissive intervention—Rule 24(b) – “Hey I should be a part of this.”
• Need to ask permission from court – apply!
• 2 potential conditions:
• 1. fed’l statute grants a conditional right to intervene; or
 • 2. applicant’s claim or defense shares a common question
of law or fact
o 2. Intervention by right—Rule 24(a): gives a party the right to intervene
without court permission
• 2 potential conditions:
• fed’l statute grants an unconditional right to intervene
• applicant pushes way to front and says:
• 1) claims an interest relating to the property or
transaction that is the subj of the action and
• 2) disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that
interest, and
• 3) the applicant’s interest is NOT adequately protected
by existing parties
o works best in public law litigation – courts usually allow intervention in
these types of cases.
o Natural resources defense council v. US nuclear regulatory commission
Natural Resources Defense Council v. USNRC (10th Cir., 1978, P 773)
Facts- P trying to force D to require environmental impact statements
before granting nuclear licenses. One party already intervened whose license
was in question in suit. Kerr tries to intervene because planning to apply for
license in future.
Finding- Should have been allowed to intervene per 24(a); not adequately
rep b/c situated differently (don’t yet have licenses). Has interest b/c decision
will affect prior intervenor’s ability to get license in the future.
• Overview: Court must certify the case as a class action before proceeding
o 1. Court must determine whether the case is appropriate for a class action
based on the four prerequisites
o 2. Court must determine which category the class meets
o motion for class certification is made fairly soon after action commences–
plead and prove the prerequisites
o Appeals: decision granting or denying certification can be appealed within 10
days from the entry of the order
• 4 prerequisites (Rule 23(a))
o 1. Numerosity: class is so numerous that joinder of all members is
impracticable—generally in the hundreds
o 2. Commonality: questions of law or fact common to the class
• Does the law impact the members in the same manner?
• Presence of individual claims and differences in damages doesn’t
defeat certification
o 3. Typicality: claims or defenses of the representative parties are typical of
the claims or defenses of the class
• factors: size of the claim, legal source of claim, and whether the
members are subj to any defenses
• satisfied unless there is a major difference btw the representatives’ and
members’ claims
o 4. Adequacy: representative parties will fairly and adequately protect the
interests of the class
• addresses due process issues
• factors: parallel interests, attorneys, financial consideration
• 3 categories:
o 1. Numerous necessary parties 23(b)(1): many absent parties would meet the
test for “indispensable parties” under Rule 19—Ind. actions would lead to
inconsistent/varying outcomes or impede or impair the interests of other
members
• ex: insurance litigation
o 2. Injunctive or declaratory relief is sought by the class 23(b)(2)
• court may grant atty’s fees
• if damages are more than incidental, class needs to be certified under
#3
o 3. Damage class—add’l requirements 23(b)(3):
 • common question of law or fact predominate over questions affecting
only individual members; and
• class action is superior to other methods
• extent to which ind members have an interest in controlling the
prosecution or defense of their own actions
• whether litigation involving claims by or against members is
already pending
• whether the chosen forum is a desirable place to concentrate
litigation of the claims
• whether other difficulties may arise in managing the class
action
• other issues that affect a court’s decision in certification
• damages: if members suffered significantly different damages,
may outweigh the common issues
• defense: if the ∆ has individual defenses against members, this
issue may prevent certification
• law: differences in governing law may prevent certification
• Communities for Equity v. Mich HS Athletic Assn: female student seek a class action
suit re gender discrimination and court grants certification. Factors: 1) numerosity –
thousands of students; 2) commonality –did the assn act in a manner inconsistent with
the Equal Protection Clause?; 3) adequacy –issue re females who don’t have a
problem with the current situation, court’s rationale is strange in that the ∆ will
represent those individuals; 4) adequacy; class falls in the injunctive relief category
• Heaven v. Trust Co. Bank: Π wanted to bring class action re failure to disclose under
fed’l statute. Prerequisites are satisfied (hundreds of members, Did the lease comply
with the consumer lending act?). In the damages class, since seeking statutory
penalties and atty fees, even though no actual damages. Court held the add’l
requirements under Rule 23(b)(3) were not met since ∆ brought forth individual
counterclaims → individual claims become more significant and some members may
no longer be interested in the action.
• Constitutional Concerns
o Due Process—requires notice and an opportunity to be heard and personal jdx
o Class action can adjudicate the rights of absent members has long as there was
adequate representation, including preclusion and judgment
• If party’s interests were not adequately represented, then binding that
party to the decision would be in violation of the clause
 • Interests of the representative and the class member should be so
closely aligned that when the rep is looking out for his own interests,
he is also looking out for the interests of the members
o Hansberry v. Lee: Π tried to use claim preclusion, claiming that ∆ was a
party in a previous class action and thus bound by the judgment that upheld
the validity of the covenant. Previous suit, Π ’s (owners seeking to enforce)
were the class v. ∆ in violation of the suit. Court held that Hansberry’s rights
to due process would be violated since not adequately represented in previous
suit—need to discuss a const. issue for jdx. Another problem re preclusion
was that in the previous suit the Π , not ∆ , was the class and Hansberry’s
interest coincided with the ∆ ’s.
• Notice and Opt-Out
o Main issues of Rule 24 (c):
• Individual notice to all class members is required
• Members may request to opt-out and will not be bound by the
judgment
• If a member can’t be found, the member is excluded from the class and
will not be bound by the judgment
• If a member doesn’t request to be excluded, he will be bound by the
judgment
o Rule only requires notice and the right to opt out to “damages” class actions
• Court may require notice in the other 2 categories
• Court will rarely give members the right to opt out in the other 2
categories
• Settlement
o Significant restrictions
o Notice of any proposed settlement must be provided to all members to give
them the opportunity to challenge it
o Court approval is required for the settlement to be effective –court will
evaluate whether the settlement is fair to all members and will scrutinize
allocation of atty’s fees (Unique feature—not required in other cases)
o “Settlement class action”: atty will certify a class solely to force settlement.
The attempt may be made after a settlement has been negotiated as a why of
resolving the dispute for the ∆ once and for all
• courts recognize this issue as a factor to consider in the certification
decision
 • Anchem Products v. Windsor: class was defined as everyone who had
ever been exposed to asbestos, including people who didn’t know they
were sick yet. Court held that future and present Π ’s couldn’t be
certified as 1 class based on common question of law and adequate
representation.
o “Lock-out” agreements are forbidden: atty cant’ make an agreement that
restricts another atty’s right to practice

← POLICY ISSUES –PART 2

• Attorney’s fees –how would awarding fees to prevailing party increase or decrease
litigation?
• Litigation explosion –relationship btw procedural and caseload
• How does lawyers payment impact what cases are brought and how cases are
litigated?
• Role of court in injunctions and preliminary relief.
• Depositions v. interrogatories
• Discovery system
o Increase role of courts
o More limits
o Harsher sanctions
o Submit plan to judge
o 3rd party –neutral
←
 25/01/2008 11:28:00
← FEDERAL RULES OF CIV PRO
← Lawyer’s responsibility –Rule 11
• Signature required on every document
• Representing to court
o No frivolous claims
• Sanctions –court can impose penalties
← The Complaint –Rule 8
• (a)(2): Short and plain answer statement
o reasoning for and against
← The Response—Motions and answers (responsive pleading)
• When D gets the complaint, they must respond
• Pre-answer Motions –Rule 12 –requesting court to dismiss the case
o Reasons: lack of jdx, improper venue, failure to state a claim, insufficient
service of process
• Answer –Rule 8 –take position on allegations
o Affirms or denies—“it is/is not true”
o Affirmative defense “Yes, but”
• Counterclaim –Rule 13
o Counterclaim –D sues P
• Permissive –must be brought when the answer if filed
• Compulsory –can bring up later
o Cross-claims –sues party on the same side of the lawsuit
o 3rd party claim –sues a part that isn’t part of the lawsuit but may be liable
← Parties to the Lawsuit
• Rule 20 –permissive joinder
← Discovery
• Standard –“scope of discovery, any matter, not privileged, that is relevant to the scope
of the party” (Rule 26)
• 1. Disclosures
o Rule 26(a)(1)—basic info needs to be provided immediately
• 2. Production of Doc
o Rule 35—getting docs from other parties
o Rule 36—getting docs from non-parties; a subpoena is necessary
• 3. Written Interrogatories
o Rule 33—specific ques written for another party to answer; only apples to
parties, not non-parties
• 4. Physical and mental examinations
o Rule 35—need to make a motion to court first
• 5. Oral Depositions
o Rule 30 –depos; Rule 45 –subpoena requirements
o Under oath
← Avoiding Trial
• Rule 56 –summary judgment: no genuine issue as to any material fact and moving
party is entitled to a judgment as a matter of law
← Trial
• Rule 50 –motion for a directed verdict: motion for judgment as a matter of law
o Moving party makes motion during trial
• Judgment notwithstanding the verdict –judge substitutes his judgment with the jury’s;
judge is overruling jury verdict
o If case was appealed and won, the initial verdict would be instated v. if a
directed verdict case was appealed and won, a new trial would occur
← Prior Adjudication
• Issue preclusion—can’t re-litigate a particular issue in the case since it was
determined in a price suit; ind claim is precluded
• Claim preclusion –cannot bring the claim that should’ve been brought in an earlier
suit; would lawsuit is precluded
← Appeal
• Only final judgments can be appeals; can’t appeal interlocutory orders
• Reasons to appeal
o Error of law—court didn’t properly interpret the law
← Error of fact