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Civil Procedure Outline

I. Subject Matter Jurisdiction
A. Introduction • Rule 8 a) Claims for relief – pleading shall contain: short and plain statement of the grounds upon which the court’s subject matter depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it. • Rule 12h3 whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action. . .  Capron v. Van Norden (prior to Rules of Civ Pro) Capron fails to establish SJM initially and then goes to the court requesting that the case be dismissed on the grounds that 1) No mention of SJM and 2) No SJM. Case is dismissed. Represents the courts Represents the courts breaking of procedure to maintain the purity of the system. • Rule 15a does not apply at this state because there is no pleading this is an appeal. • 28 USCS § 1653 Defective jurisdiction may be amended , upon terms, in the trial or appellate courts. (rule of forgiveness which encourages sloppiness. Safety valve) • Exceptions-Lack of SJM cannot be challenged later o Res Judicata o Collateral Estoppel B. Diversity Jurisdiction i) Introduction: • Grant of Jurisdiction from Article III, §2 of Constitution. o 1332 does not allow the full statutory grant in two ways.  Amount in Controversy 75K • Doctrine of Aggregation may add up amts. from different claims as b/t same parties to meet the amt. in controversy requirement.  Complete Diversity Requirement. (Strawbridge v. Curtis) ii) Domicile determines citizenship- An alien is a citizen of the state in which he is domiciled. a Domicile has a unique federal meaning: (1) Where you are found (2) Where you intend to remain (3) (or it can be the last place you were domiciled as in Mas) b Mas v. Perry (5th Cir., 1974) Defendant appeals on ground of lack of diversity jurisdiction. Plaintiff was a citizen of France, and under common law, his wife would also be considered a citizen of France and thus a citizen of no state (outside of the reach of § 1332). Court suspends common law rule: When husband is an alien, the common rule no longer applies. (1) Courts decision to suspend the rule of unity of domicile, was motivated by desire to preserve the ultimate goal of the rule, to preserve the ability of Husband and Wife to Sue together. c Coporations are citizens of wherever they are incorporated and where they have their principal place of business (1) § 1332 (c) 1 – a corp is a citizen of all states where it is incorporated. Most states only incorporate in 1 state. You are also the citizen of the 1 state where the corporation has its principle place of business. (2) EXAM CHEAT: (i) Look at corporation’s nerve center  where decisions are made (headquarters). (ii) Look to corporation’s muscle center  where corporation does more “stuff” than anywhere else. Manufacturing. (iii) Most court’s look to the total activities of the corporation  we will use the nerve center as the principle place of business, unless all the activities are in a single state. If the there are 5 plants in different states, then we will look to nerve center, but if all plants are in one state, that is where we will look. (iv) You must analyze on exam, talk about nerve, muscle, total activities. (v) EXAM HYPO- D is incorporated in Delaware, factory in PA, headquarters in NY, other plants in 6 other states. We know its Delaware citizenship and also analyze 3 factors to figure out principal place of business. (3) Diversity is determined at the time complaint is filed and is not affected by subsequent changes in domicile of parties. (4) St. Paul Mercury Rule: Gives the benefit of the doubt to the ∏ that the claim will meet the amount in controversy unless it is quite clear it will be less. This rule is heavily weighted toward the ∏ Where there is

a legitimate debate, the congressional mandate is satisfied. Hard time in keeping intangible damages out of federal court. C. Federal Question Jurisdiction/Implied Remedy Doctrine i) Introduction a Federal Courts did not have arising under Jurisdiction until 1875 (1) To encourage uniformity of interpretation of Federal Law (2) Federal Judges are smarter, and have greater expertise (3) Provide for a vindication of federal rights against states. b Like Diversity Jurisdiction, Statutory Grant of “Arising Under Jurisdiction”, 28 U.S.C. §1331 is not the full Constitutional amount. c What does arising under mean? Is the primary question (1) First, when looking at arising under jurisdiction, ask what th the proper contours of the claim are, . . . whether the claim is as lean as it could be or whether it is anticipating defense ii) Well pleaded complaint rule a A federal question that arises under an anticipated defense cannot be the grounds upon which the case reaches federal court. b Louisville & Nashville R. Co. v. Motley, Scotus (1908) (1) Court took notice of lack of jurisdiction sua sponte – doesn’t arise under. (2) Cause of action here was breach of contract - state law. (3) Plaintiff’s attempt to anticipate defense that federal law would preempt their claim - Court says cannot do that. (4) The federal claim must arise on the face of a well-pleaded complaint. (5) The π doesn’t create a federal question by anticipating, in the complaint, a federal defense. iii) 3 theories- The Scope of Federal Arising Under. a Creation\Cause of Action Theory (Justice Holmes-American Welworth) (1) Narrow under Constitution and 28 USC § 1331 (2) Only if the federal law creates the cause of action b Ingredient or “But for Test” – (Justice Marshall, Osborn v. Bank of the United States,) (1) Osborn v. Bank of the United States, (i) Constitutionally this case can go to Federal Court – the bank was created by federal law. Fed Law is an indispensable ingredient to the creation of the Bank. (There is a causal chain that is rooted in federal law) (ii) Within the charter, the Congress has conferred Jurisdiction in Federal Court. This was sufficient, but we don’t know until the 90’s that this was necessary condition. The charter must expressly say “ sue in federal court” c Meaning and Applicaton- (Smith, Moore, Merrell) (1) An federal question arises, by requiring decision maker to engaged some decision of Federal Law. The courts have decided that there is a Constitutional Power to send some cases to Court even when the claim does not arise under federal law (i) Harms v. Eliscu – ∏, Harms Co and ∆ Eliscu are fighting about the copyrights to a song. No diversity this must come to court as a federal question. Lower court decides that there is no Arising Under Jurisdiction because court need not open up the copyright statute and interpret it. Judge Friendly distinguishes from an action for infringement, which would require interpretation. 1. Congress could have granted jurisdiction in this case, but Congress did not use it because they didn’t include the language in the grant. 2. This doesen’t get in via § 1331 – Constitution has immaent power but does not have the steam to structure the system. The congress must parse and allocate federal Jurisdiction. 3. This case would go to federal court under Osborne, the distinction made is that Federal law here creates the entity at issue and not the parties at issue. 28 U.S.C. § 1338  are specialized grants to the federal courts not arising from 1332. (ii) Smith v. Kansas City Title and Trust Co., State law creates the cause of action. Claim is that ∆ is investing, contrary to MO corporate law, securities unlawfully created. To resolve this question court must resolve an issue of whether the Act authorinzing the issuance was Consstitutional- This case goes to federal Court. (iii) Moore v. Chesapeake & Ohio- ∏ claimed under state liability act that they could not be held contributorily negligent because ∆ employer violated a federal statute. You can’t avoid looking at the federal law. The court does not allow this to go federal Court. Court says federal law issue is not substantial without adequately distinguishing from Smith. (iv) Merrell Dow v. Thompson (SCOTUTS 1986) 1. ∏ sues Merrell Dow in Ohio State Court. Merrell Dow Removes to Federal Court, ∏ object asserting that there is no SJM

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The majority of the claims are state law claims with one claim under the FCDA which if the ∆ have violated will be negligent per se. The 6th circuit finds that there is no federal SJM here because liability could have been found without looking at the federal statute- The outcome doesen’t depend on the Meaning and application of the Federal Statute. 3. SCOTUS creates a new theory of meaning and application test: Federal jurisdiction applies if there is a federal law claim under which there could be a separate cause of action filed in federal court Without an independent Cause of Action there can be no Federal Jurisdiction Does not require that the ∏ sue on this question, only that the cause of action exists. 4. Because the Court finds that there is no independent cause of action that comes from the Food Drug and Cosmetic Act, there is no SJM “arising under” 5. If federal question wasn’t necessarily decided as part of case, then it doesn’t meet the meaning/application theory criteria. Necessarily decided test. 6. “A complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim ‘arising under…’” d Implied Remedy Doctrine: (1) Dissent in Merrel - Does lack of mechanic for bringing a cause of action, make a statue any less substantial in deciding a state law issue? (2) Decision does nothing to forward goals of federal jurisdiction 1) nothing to forward uniformity or expertise, 2) neutral at best on the protection of federal rights. (3) Under the Common Law rights and Causes or Action were unified (4) Statutory commands which often makes prescriptions but does not supply what to do if prescriptions are not followed. 1. Is there a cause of action? 2. What is the Remedy ? 3. What is the Jurisdiction? (ii) Cort v Ash, (Scotus, 1975) – ∏ sues Behlehem violation of 18 USC 610, which prohibits contributions of corporate funds to political parties. First remedy is dismissed- change in law. The court then deals with the question of damages (iii) Sets up a four part test to determine implied remedy: 1. Is the ∏ of the class entitled to protection? 2. Any indication of the legislative intent to create or deny a remedy? 3. Is it consistent with the legislative intent to apply a remedy ( What is the law? Does Suing advance purpose?)((will the suing by stockholders reverse or change corporate influence))? 4. Is the cause of Action traditionally relegated to state law, making it inappropriate to infer federal cause of action? (iv) In this case, Court found no private cause of action implied. Intervening legislation by fed. election commission created an enforcement mechanism for complaints relating to violations of election law. (v) Schooner Peggy Doctrine (side note): 1. If between judgment and decision of appellate court, a law intervenes and positively changes the rule which governs, the intervening law should be applied. Doctrine of retroactivity. 2. The court must make decision in light of law as it stands when the court makes its decision. (vi) Bivens v. Six Unknown Agents of FBI (SCOTUS, 1971) 1. Court creates an implied right of action from the Fourth Amendment of the Constitution – to be free from unreasonable search and seizures. (vii) Bell v. Hood – don’t need an express remedy  Bivens - don’t need an express cause of action either. 1. Black dissents: Congress should create these causes of action; the Courts should not pull them out of nowhere. Congress specifically granted a statute for federal cause of action against state officials acting under color of state law - §1983 – why didn’t they create one for federal officials? 2. Today, courts tend to look to plain meaning of statute to see if a right of action is created, hesitate to imply a right of action.


D. Supplemental Jurisdiction i) Introduction a Multiple Claims and Multiple Parties some of which, if looked at alone, would not have federal Jurisdiction (Riding the Coattails) b Prior to 28 USC § 1367, the terminology spoke of pendant or ancillary claims. Terminology obsolete and we now talk about supplemental claims and supplemental parties.

First, Primary Claim – determine and distinguish primary claims from supplementary claims Second, Identify claims that are asserted against same party and separate parties. 1367 gives very different treatment to claims that involve same and different parties. ii) Joinder of Claims a Rules: (1) Rule 13(a) Compulsory Counterclaims (i) Must arise from same T&O (same scope as Res Judicata) (ii) Failure to assert leads to waiver leads to waiver of the counterclaim (2) Rule 13 (b) Permissive Counterclaims (i) Does not have to come from same T&O (ii) Failure to assert does not arise in Waiver (iii) Permissive only to the extent that they are not barred by Res Judicata (3) Rule 13 (f) Omitted Counterclaims: (i) Court may allow amendment to fix omitted counterclaims (4) Rule 13 (g) Cross Claims: (i) Permissive, No Waiver (ii) Must arise out of same T&O (5) Rule 18 (a) Joinder of Claims (i) Party May join as many claims as they have whether or not same T&O, Supplemented by the rules of Res Judicata (ii) Allows aggregation of claims for amount in controversy requirement. b Joinder of Parties: (1) Rule 14 Third Party Practice – Not as Strong as rule (i) Not as strong as 19 in Forcing 3rd party onto a claim. ∏ can object (2) Rule 14 (a) When ∆ may Bring in Third Party. (Impleader) – Joint Tortfeasors (i) ∆ may implead a third party that is responsible for all or some of the ∏ claim against the 3rd party ∏ (ii) 3rd party ∆ may assert counterclaims or cross claims; raise defenses agains plaintiff’s original claim; assert claims arising out of the same T&O against ∏ (RULE 13) (3) Rule 14 (b) When a ∏ may bring in a 3rd Party (i) When a counterclaim is asserted against a plaintiff he may implead a third party ∆ under the rules above. (4) Rule 19 Compulsory Joinder of Parties – (Forcing Parties onto a case) (i) Parties needed for a “just adjudication”-necessary parties for case to progress (ii) 2 Categories: necessary and indespensible (5) Rule 19(a)- Requires “necessary” parties to be joined if it will not deprive the court of SMJ (6) Rule 19(b)- When joinder of a “necessary” party is not possible, provides for dismissal of the case or if the party is not necessary, the continuation of the lawsuit without the party. (7) Temple v. Synthes: (SCOTUS, 1990, Court does not allow dismissal as doctor is not a necessary party, joint tortfeasors are always permissive parties ∏ Injured by a plate in his spine; sues manufacturer ∆ in federal court and sues the doctor in state court. ∆ moves to dismiss for failure to join necessary parties (Doctor) under Rule 19(b). (i) No inquiry under Rule 19 (b), because requirements under Rule 19 (a) not satisfied. (ii) Reasons barring Res Judicata for this case include no final judgment and the parties are different. (8) Rule 20 Permissive Joinder of Parties: (i) Grants permission for federal lawsuits with multiple parties on either side of the “v” (multiple ∏ or ∆) – parties can come together and sue (ii) Two requirements for 1. Claim must arise out of same T&O 2. Claim must have a common question of law or fact (9) A and B do not have to include C-Subject to rule of intervention (10) Rule 22 Interpleader (i) See also 28 U.S.C. § 1335 (ii) Nationwide service of Process authorized (11) Rule 23 Class Actions (See Supplement) (12) Rule 24 – Intervention – used by outsiders (i) Rule 24 (a)- Intervention of Right 1. Mandatory party has right to be in suit 2. Permissive must get permission from Court 3. Strict test for Mandatory intervention: statute must confer a right to intervene, or have an interest in the prop. And the interest of the intervening party is not protected by existing parties (ii) Rule 24 (b) – Permissive Intervention 1. Must have a common question of law or fact

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A Federal Court does not retain jurisdiction over an action. (1) Parallels Gibbs in pendent party context (2) Court does not allow jurisdiction over a pendent party that is impleaded later. Must Congress specifically authorize PPJ within the releveant statue conferring federal Jurisdiction? Mrs. this would be a run around § 1332. but there is no independent grounds of SMJ to support the claim agains ∆ Y.  Finley v. Pendent claims in diversity jurisdiction cases (1) A&B are of diverse citizenship and primary claim meets the amount in controversy requisite (2) Additional claims that do not meet the Amount are allowed only between the same parties (whether the claims are related or not)  Trend toward the narrowing of Pendant Party Jurisdiction  Pendant Party: Fed Claim against ∆ X and a Transactionally-related state claim against ∆ Y. In order to obtain PPJ. (1) Court would not assume a Congressional grant of jurisdiction in this case. SCOTUS said 1983 did not allow the county to be sued. 1978) . whose Husband and two Children were killed when their airplane struck electric power lines. Howard) . when the ∏ adds a pendent party ∆ who destroys complete diversity.  Divergent regimes for Pendent Party Jurisdiction involving federal question and PP jurisdiction involving diversity o If it’s a question of whether the Pendent party can attach the primary claim in a Federal Question. ♦ ♦ Pendent Party Claims not based on neither diversity nor. Negative affect but positive pronouncement. 42 USC §1983 (i) The decision in Aldinger is very specific to the language of § 1983. Difficult to get –judge will consult the existing partie. (iii) Presumption in favor of pendent party jurisdiction if claims related – unless Congress stated otherwise. ∏ brings suit agains offericers under 42 USC § 1983 tries to sue the county. (ii) Court says this is not a constitutional problem. a Claims for which there is no independent basis for jurisdiction must arise common Doctrine of Res Judicata is Nucleous of operative Fact” hovering above Gibbs. the presumption is that the whole case can go to Federal Court – Avoid Piecemeal Litigation o There is the opposite presumption if the case rests in Diversity. the statue conferring federal jurisdiction must expressly authorize pendant party jurisdiction. d Aldinger Kroger Finley  Aldinger v. sued the U. many cases are sent to state court becaue the Pendant Claims are not diverse. The claims do arise from the same case and controversy. Federal Question. based on diversity of citizenship. 1989). GIBBS. The proposition unless congress excludes the exercise of pendant party jusridition it will be allowed. United States (SCOTUS. Which bars suit against the county. § 1983 refers to “officers and persons” an implied negative pregnant. Failure b Claims arising from same “nucleus” satisfy the Constitutional requirement of same case to join these cases will prevent the adjudication of the contract Or controversyEvolves into same transaction and occurrence c Reasons to dismiss a pendant claim: (1) Primary federal claim is dismissed early in the case. however. for negligent airport maintenance under FTCA and attempted to join the city and the utility company. Kroger (Scotus. No jurisdiction is the result – but jurisdiction presumed is the rule. Scalia’s Court refuses to allow pendant party jurisdiction in the absence of an express grant of authority by Congress (Reversal of Aldinger v. Howard (SCOTUS 1976) . based on diversity of citizenship. 1966). (SCOTUS. (2) Questions of State law predominate (3) Combining two claims will confuse the jury. Did not succeed. Jurisdictional Statute 1343 1332 1346 (b) Substantive Law 1983 State law 1346 (b) Rule Presumption of PP Jurisdiction No jurisdiction unless complete diversity Presumption PP Jurisdiction claims if they are not joined together in federal court.2. iii) Pre § 1367:  UMWA v. when the plaintiff adds a pendent party ∆ who destroys complete diversity? NO. The question is whether the primary claim can carry secondary claims into federal court. Pendant party jurisdiction denied under Civil Rights Act. ∏ claim against 3rd party can’t be allowed to ride the coattails (3) Two corrallary Principles from this case (i) Timing nor Sequence of when ∏ brings claim does not matter (ii) Only the Final Snapshot matters when deciding SMJ.  Owen Equipment & Erection v.S. Does a federal court retain jurisdiction over an action. Gibbs bringing suit under § 303 of Labor Management and Relations Act and 2 additional Contract Claims. Finley.

federal courts will have supplemental jurisdiction over all claims wthat are part of the “same case or controversy” (transaction or occurrence”  Involves claims between two parties or additional parties (intervening or joined parties). 19.S. or intervene as ∏ under Rule 24. o If A B and if 2nd claimPat has no independent basis ct. NJ for 85 K and NY v. 1367 B NY v.Rule 23 (class actions ) is omitted Ergo there is jurisdiction over supplemental parties’ claims under § 1367 effectively overrule Zahn. Here Class action case filed in state court of LA . can send the whole case back.Finley case law and preserve Kroger (to preserve the complete diversity requirement • 3 part structure ♦ § 1367 (a) Broad. • § 1367 was meant to codify pre. permissive grant of authority for supplemental jurisdiction  Essentially allows jurisdiction to the limits of Article III  Echoes of Gibbs – In a case with original jurisdiction over a primary claim. related claims must be had in state court.  Supplemental Jurisdiction Under 28 U. 20. Once courts decide that case could come-have the option to deny PPJ to state claims? ♦ 1367(d) Tolls (stops the clock) on the statute od limitations while supplemental cases pending in the Federal Court.C.  Codifies discretionary factors from Gibbs. Does the court have subject matter jurisdiction over members of a class in a suit when members of that class fail to meet the amount in controversy requirement? Says the court in Zahn that the claim of each class member must meet the amount in controversy requirement must meet the amount in controversy requirement.♦ Piecemeal Litigation will result from this (Worst Case Scenario) FTCA forces the primary claim into federal court. Party could move for severance-keep part w/independent jurisdiction in ct. § 1367 • In Response to Finley. ♦ 1367 (b)  Takes a bite out of a’s grant only over § 1332 diversity claims. The plaintiffs then sought to remand for lack of SMJ.  In suits under § 1332. • Does §1367(c) only authorize dismissal over supplemental claims. Congress passes § 1367 to provide an express grant of authority to grant supplemental jurisdiction. Problems with 1367. If whole thing can come in Court can only send the part back without SMJ.  The court applying 1367: o o o 1367(a) gives class members coattail jurisdiction on the claim of the class rep. no supplemental jurisdiction over  Claims against ∆ Rules 14.Court here says courts retain the discretion to dismiss entire case • What affect does 1367 have on Aggregation Rules? ♦ Courts have held that § 1367 does not change aggregation rules ♦ The supplemental case claims comprise “one civil action” of which the civil courts have original jurisdiction ♦ This is one exception for Multiple claims between same parties in amount in controversy cases ♦ Separate state law claims b/t new parties that don’t meet amount in controversy can’t be brought in. §1367(b) does not invalidate jurisdiction. removed to federal court by ∆ on diversity jurisdiction. OK for 25K  Zahn Problem/ABBOT LABS. or can courts dismiss the entire case? Colorado River abstention doctrine (cited in Abbott Labs) . 24.  When exercising Jurisdiction would destroy diversity  Does not include claims by 3rd party ∏ and 3rd party ∆ ♦ 1367 (c) Grants courts discretionary power to sever supplemental claims:  If novel question of state law  If supp claim substantially predominates  All claims with jurisdiction have been dismissed  Exceptional circumstances with compelling reasons.  .  claims by persons proposed to be joined as ∏ under Rule 19. while the subsidiary.

Sheets (SCOTUS. Defeating Removal ♦ Adding a fugazi/insubstantial/unnamed party  Real Party and Interest Doctrine – Rose v. Court held that ∏ could not remove based on fedral counterclaim. Kroger tells us that it is the “final picture across the v” that matters for SMJ.  Patterson Enterprises v. Leonhardt (1998). • There are implicit waiver rules. action is removable without regard to the residence or citizenship of the parties 1441 (b) § 1446 governs the Procedure for Removal and it is very strictly imposed. that the suit could be brought in federal court because 1367 only applies to parties added later and not those present in the beginning of an action. The court then reasons incorrectly. 1993). Purpose is to protect ∆ rights parallel to the ∏ to be protected by federal courts Also protects against bias o The vindication of these interest is only partial. result if not reasoning is correct under 1367. Removal Jurisdiction Exception to the idea that the ∏ is the mater of the claim. ♦ Claim amount in controversy less than 75 K.     ♦ ♦ ♦ In federal question cases. a federal defense to the claim will not allow removal ♦ This is motivated by a strategic desire for the ∏ to get to federal court by restyling the case in his own image. 1941). the suit rests in diversity and any ∆ that is a member of the same state. can be removed § 1441a unless.  When removing a case. And 1367 B only applies to ∆ brought in under 20. Giamatti (S.  Failure of procedural requirement  Lack of SMJ is never waived. o A literal reading of 1367 would allow this claim to go forward because they are plaintiffs joined under rule 20.Citizenship of nominal parties may be disregarded for purposes of diversity of citizenship. ♦ § 1441 (C) Removal of Multiple Claims  Dead Letter  1367 (c) does the work of supp J.Tenth Circuit did not agree with 5th Circuit: Same question did 1367 overrule Zahn? The 10th court held that Congress did not intend to change the Zahn rule when a ∏ can bring an initial suit under rule 23. • General: Any case that could be brought in federal court originally. the fact that one of the time deadlines has not been met can make a basis for failure to remand.Ohio. Bridgestone/Firestone (Kansas. 1989) . • Distinction between pre removal and post removal by amendment. § 1441(b) ♦ § 1441( a) Cases are removed to the federal district court for the district and division embracing the place where the state cause of action is pending ♦ This rule is subject to the well pleaded defense rule. must look to § 1367 (C) to determine if there is jurisdiction over the entire case/all claims. Can they ride the coattails of the third party into federal Court? Three ∏ sue and OH ∆ (Firestone) and two of the ∆ fail to meet the amount in controversy requirement. reads 1367 as applying to parties added (later) to a case o Literal reading of § 1367 preserves Zahn. When 3 parties bring suit in diversity and 2 of the parties fail to meet the amount in controversy. o Rather. ♦ § 1441 d Foreign States as ∆ may remove ( tried without Jury) ♦ § 1441 (e)-An action removed from state court that had no jurisdiction to hear the case is not precluded from being heard in federal court.  Courts. It’s reasoning presents a Kroger problem-It doesent matter that the parties were present at the beginning of the action. o Remains an open question.D. • Pre-removal ∏ is master of his complaint • Post removal is looked at carefully by courts – not allowed to do this ♦ Additional Parties: .  Shamrock Oil & Gas Corp v.

§ 1441b ♦ Additional claims• Adding a claim that does not have supp J under § 1367 can defeat removal ♦ Dropping Federal Claim  Carnegie Mellon University v. There has been a gradual constitutionalization over the course of 200 years of Personal Jurisdictgion o Mobility and Mass transit lead Traditional Basis for Personal Jurisdiction Formal. territorial.   .C. District Court remanded a properly removed case (diversity jurisdiction) for a reason not authorized by removal statue ( judge said docket overcrowede) Court noted that remand was only authorized under the two circumstances mentioned in 1447 Court Held that under § 1447 (C) and (d) must be read together? • § 1447 (e) gives the court authority to deny joinder of additional parties by ∏ if they would destroy jurisdiction (or allow joinder and remand)    • Personal Jurisdiction & Motions Practice:     Introduction: Two requirements for assertion of Personal Jurisdiction:  Power over the person – Abstract power of the sovereign to bring parties it and bind them. the case is deemed removed ♦ Motion for remand must be filed within 30 days. Cohill (Scotus 1988) Crossing of 1441 and 1367. Three Forms of Personal Jurisdiction: o In personam – Over the person – full extent of liability for the matter. orders to remand are not reviewable on appeal  Thermtron v.S.C. § 1446 Procedures for Removal • ∆ must file notice of removal in federal district court • All ∆ must agree on removal • Must be filed within 30 days of receipt of claim • • 28 U. fairness and comity and that 1367 C. geographical. Does court have the authority to remand for this reason (which is not one of the two listed in the statue. Hermansdorfer (Scotus. ∆ remvoved to federal court based on federal question jurisdiction. § 1367 (a) gives jurisdiction to pendant State law claims Under diversity claim. but is part of the discretionary factors of § 1367c?) Can the court only dismiss or does the judge have the option of remanding the case? ∏ brought suit in state court.  Perfection of Power – Court must take steps to effect the power over the parties • Service of Process • Procedures are geared to provide notice and opportunity to be heard. ∏ later dropped federal question claim and sough an order to remand.S. Personal Jurisdiction is derives initially from a set of common law standards. • 28 U. Personal Jurisdiction is the 2nd of three hoops that must be cleared by the poodle in order to bring a cause of action. authority of the sovereign o Idea that the power of the courts extended to the boundaries of the State o Required  Domicile within the state  Physical presence  Or the waiver/consent of the out of state party. § 1447 Procedures after Removal ♦ Upon filing notice. Remand allowed for reasons of efficiency.Under Primary Federal question claim. joining a party who is a citizen of the state in which the action is brought can defeat removal. which gives discretion to dismiss in pendant party/claim cases is present in § 1441-1446. o In rem – Jurisdiction over a thing to determine the statuts of the proper – case actually involves something about that property (RULE 4N) o Quasi in Rem: Jurisdiction over property – the cause of action is not related to the property and the damages are limited to usually when the court has with in it’s authority property owned by the person. 1976).  An improperly removed case must be remanded to state court  Two Grounds for Remand  Defect in Removal Procedures  Lack of SMJ • § 1447 (d). physical presence.

o Traditionally. This was stretching to the breaking point  Modern Personal Jurisdiction and long-arm statutes  After Pennoyer there is a gradual movment to a more functional standard for the courts to exercise power and perfection o Principle of where a person was gave way to the principle of whether there was a relationship between the person and the jurisdiction o Innovations in Travel. Domicile was enough to bring to bring an absent ∆ within the reach of the state’s courts.  Quasi in Rem and in rem jurisdiction are acquired by the presence of nonresident ∆ property in the forum state and the attachment of property at the start of the action  Due process must protect the rights of the individual who owns property. (And not a special appearance to contest PJ) o Initial movement int the Constitutionalization of due process of law. Neff (Scotus 1877) Personal Jurisdiction is acquired by personal service inside the territorial limits of the foum state or by voluntary appearcnace of the ∆ there to contest the suit on its merits. Meyer the Court allowed jurisdiction over a resident who has established another residence. Technology o and the formation of corporation as an entity  More focus shifted to ∆ rights  These considerations were Constitutionalized under the 14th Amendment Due Process Clause  Expanding PJ o States resort to legal fictions to establish PJ over non-residents. State Sues to collect taxes from Corporation. had a salesman operating in Washington State. argues its activities in the state do not amount to presence. 1956 Sike! There’s no banquet but here’s a summons) Is a service of process that is achieved of that is achieved through trickery.Tickle V. o The problem is that the court did not seize the property prior to asserting jurisdiction rather the property was seized after the court entered the judgment. Barton (Supreme Court of WVA. Louis.  Court here breaks from Hess and decies standard for establishing PJ (for corporations) “Minimum Contacts” between the corporations and the forum state. Court holds that this fraud nullifies the PJ. United States.   Blackmer v. but no offices.  First case: Mitchell sues Neff in (CA) in Oregon o Notice of suit is published in paper o Oregaon rule allows PJ based on seizure of property in the state together with notice published in paper. by a Virginia resident. deceit and subterfuge null and void? What is the appropriate measure to take upon discovery of a defective service of process? ∏ was injured in an accident in WVA. Neff was deprived of notice and opportunity to be heard. Mitchel wanted to commence Quasi in rem action. which Court says is a Constitutional due process right.  Miliken v. Washington (Scotus 1945) Int’l Shoe (DE Corp) with HQ in St. Court did allow to serve process on an absent citizen of the state. power of the court extends to the border of that courts geographical area the court can’t reach over and summon you  Pennoyer v. property owners are thought to become aware of actions o Barring seizure. The case is dismissed. Apperas “specially” to constest PJ. Pawloski (Scotus 1927 – Drive By PJ) Court upholds Constitutionality of MA statute that says PJ can be acquired by implied consent of party driving through the state. MVA registrar is appointed as your agent for receiving notice  International Shoe v.  Courts retain jurisdiction over persons domiciled in the state despite their physical absence from the state. while maintaining the tradiational notions of jurisdiction (presence and consent)  Constructive Consent – parties deemed to consent to pJ by driving through state  Consent to appoint state registrar as your agent for receiving process (Your agent is thus present in state)  Hess v.  Secondly: Neff sues Pennoyer in federal court to quiet title o Neff collaterally attacks first case on the basis that the court lacked PJ o Service defective – there was no seizure of the property prior to the judgement o Court does not enter the judement on the first case o Court argued notice is given to by the seizure.  Mini Cons must be make sure that “ traditional notions of fair play and substantial justice “ are met  Two concepts to fulfill meaning of minimum contacts: o ∆ burden and expectation must be considered . etc.

(Scotus. then is that exercise consistent with Constitutional PJ  Key Minimum Contacts Concepts: o Reciprocity (International Shoe) o Undue Burden on ∆ (International Shoe) o Purposeful Availment (Gray) o Forum Specififc Factors (Gray and World Wide Volkswagon)  Appropriate place to litigate?  Evidence/witnesses available  State interst in providing a forum for vindication of it’s citizens rights  Trajectory of Minimum Contacts  Gray v. or have an office in Delaware o Contact is unilateral by one party moving to florida.  Two part analysis for asserting PJ o Does the statutory grant or authority allow the exercise of PJ o If Yes. he must therefore submit to Jurisdiction Minimum Contacts Taxonomy: o Continuous and systematic contacts and cause of action arises from these contact (Specific Jurisdiction) o General jurisdiction if activities are sufficiently continuous. Deckla (Scotus. • Long Arm Statutes expanded the reach of state courts to assert jurisdiction • Single Action Statutes: point to single act (torts) and provide a rule for service of process • Activity Statutes “doing business” in a given forum • Laundry list Statutes: point to a single act ( committing a tortuous act in the state) and provide a rule for service of process • Outer Limit Statutes as in California they allow jurisdiction to the limits of Constitutional PJ. o Court also weighs systemic factors:  CA has an interest in seeing rights of its citizens protected (CA law). Reciprocity (Purposful Availment) . it is unconstitutional because exertion of power takes minimum contacts too far (this is a single act)  Mcgee v.  Forseeability of ∆ products entering Illinos forum was central to the analysis.∆ took advantage or invoked protection of the laws of the state. DE trustee did not purposely avail of Fl laws. 1957)  Specific Jurisdiction  Single or isolated contact (contract) personal jurisdiction case (CA citizen has an insurance policy with a TX corporation).Insurance company could have quit at any time. and systematic and Cause unrelated o Sporadic. o Plaintiff would be at a considerable disadvantage if he was forced to sue outside of forum. ILL). not unreasonable to hold manufacturer liable in forum state. O’connor in Asahi will later step back from such a low bar however only partly. casual single act and cause arises from the act – might give rise to PJ o Sporadic single act and cause arises not from contacts – not enough to establish PJ o Post international Shoe. advertise. American Radiator (SCt.  Witnesses most likely in CA. o Volitional . Because ∆ injected radiator valve into the stream of commerce.  Minimum Contacts Doctrine is stretched to the limit by the stream of commerce cases. o ∆ did no business.  Hanson v. Purposely avail itself of forum thru deliberate maintenance of contract on a regular basis. 1958) Beginning of Purposeful Availment! Granny leaves money to Granddaughters in Delaware and Daughters in Florida! o Simultaneous Lawsuits o Similar to McGEE – in that there is a single contract here – But it is not enough to establish PJ over Delaware Trustee by FL Court.  Court holds that the continuous activity on this one policy is sufficient contact to ground personal jurisdiction. Sailing along the stream of commerce! Introduces the concept of purposeful availment into SOC case.  ∆ challenges PJ on two grounds: o Statute does not apply (Tort happened out of Forum because the part was negligently produced elsewhere) o Even if the statute does apply. o Systematic and continuous. Minimum contacts exist where the maker of a product injects that product into the stream of commerce for ultimate sale in another state. though narrow.  . International Life Insurance Co. hers was not a majority decision.

v. (There is also a possibility to look at the nature of the ∆) Asahi Metal Industry Co.most efficient administration of justice in furthering fundamental social policies  Effect of Forum Factors o “plus factor” – boost minimum contacts over threshold of fairness o Minus factor – there may be sufficient contacts but it would not be fair to exert PJ here. OK Supreme Court held that OK long arm reached ∆. o Makes factoring of systemic factors difficult Burger King v. 1984) Π’s lack of contracts w/the forum state won’t defeat otherwise proper PJ. but supply a large volume of parts for CA bikes (1000s). reciprocity does count. Hustler Magazine. SCOTUS reverses lower courts finding that personal jurisdiction did not obtain because plaintiff did not have sufficient contacts with forum. the ∆ here is a business man and the relationship was more balanced. this is an unilateral action but it is on the part of the ∏. this was the only claim left when case reached Supreme Court.  Keeton v. the notion that a single contract that would is enough.  Forseeability – but not mere foreseeability.  There is also a concern in BK about sufficient number of contacts through a contract. continuous. In WWW. DEFENDANTS DID NOT PURPOSEFULLY DIRECT THEMSELVES TO THE FORUM STATE. that would allow small consumers to be hauled into distand forums to defend. Superior Court:  Similar to Gray . o The Court distinguishes Gray. there is no purposeful availment of OK law by the ∆ o Stream of Commerce analysis in defective product cases. • Evidence of Asahi’s business activities in CA cuts both ways: activities in CA are a tiny percentage of Asahi’s total business. Plaintiff chose NH because of long statute of limitations. Landmark foreseeability of where ∆ can anticipate or forsee being brought into court. (Hanson and Mcgee)  World Wide Volkswaagen v. purposeful availment. Rudzewicz(Scotus 1985) BKC a o Landmark decision about PJ analysis in Contract cases decision makes forum selection clauses relevant to personal jurisdiction analysis.  Fills in elements of substance of a ∆ connection with a potential forum state. (SCOTUS. o A single contract can be enough if it involves a sustained interaction over time. the purchase in NY was the last stop in the Stream of Commerce-∏ then moved the car unilaterally to OK  Forum Factors Also Evolve from here o ∆ Burden of defending o ∏ interest and convenience o Interests of Fourm State o Interest of the States together. The burden on the party has to be assessed on the nature of the party and the burden that they have. Superior Court (Scotus. o Unlike Mcgee. o o o o     . Woodson (Scotus. ∆ constest PJ on Minimum Contacts grounds-violation of Due process under the 14th amendment. Constant Consumption through a forum is not necessarily always going to be enough. drive it through OK where they have an accident and car’s gas tank blows up. o Take Home Lesson: Consolidates the principles that have gone before.000 magazines there  substantial. Product Liability Suit in Ok naming WWVW. where the ∏ was an individual actor. CS filed cross complaint against Asahi. Scotus reverses. • Asahi was manufacture of valve assembly used in tire tubes made by defendant Cheng Shin. 1980). Compagnie des Bauxties (Scotus 1982) o White –due process clause is exclusively focused on the individual interests of the ∆ not on the interests of the forum state. ∏ purchase care in NY.Stream of Commerce case with last stop sale in CA. o ∏ say that I was foreseeable for car to travel and end up in OK o As in Gray. 1978) o SCOTUS did not allow jurisdiction over NY ∆ by Ca because he alloed his daughter to live in CA with her mother o “Effects test did not apply – merely causing an effect in the forum state does not support PJ on its’ own (not like a tortuous action or commercial activity affecting state residents) Insurance Corp of Ireland v. the distributor and an NY corp with no business contacts to OK as ∆. Plaintiff (NY) sues defendant (OH corporation) in NH federal court. and systematic) Kulko v. Inc. o Court says no requirement that plaintiff has minimum contacts – test is volume of contract b/t ∆ and forum (sold 15. Collateral attack – FL judgment against Trustee rendered void.

.not enough to ground PJ without some greater connection to forum state . non mechanical Standard  Perkins v. the contacts lie toward the weaker foreseeability end of the minimum contacts spectrum .Purposeful Availment of the Laws (Gray) or Purposeful Direction in Stream of Commerce (ASAHI).∆ has sufficient contacts with the forum to warrant jurisdiction over him for matters arising form her activities in the forum. Curtis Brown (Scotus 1923) o Court there rules such purchases. as the plaintiff is not a CA resident. • “Flow Plus” would entail an effort to create a market through deliberate action by defendant (advertise. Benguet Consolidating Mining Co. in TX state court. o Plaintiff would have benefited if it argued this was a specific jurisdiction case. establish channels for regular communication. Specific Jurisdiction  Specific Jurisdiction over the ∆ . D. o Supreme Court says that this is the best case for systematic. o Holds continuous flow of purchases are not enough. • Assertion of PJ even in the presence of minimum “minimum contacts” would offend “traditional notions of fair  play and substantial justice. • In this case.   Helicopteros Nacionales de Columbia v.”  too much of a burden on ∆. developing a product specifically for the state. O’Connor Plurality Opinion (which has become accepted): • Develops “purposeful direction” test for stream of commerce cases .foreseeability not enough. heavy burden on alien defendant (foreign citizen). and continuous activity. owner of helicopter.variation on purposeful availment (Part II-A). E. ???? General Jurisdiction  Continuous and Systematic (Perkins) and substantial activities in the Forum.∆ has vailed himself of the protection of the Forum’s laws and is rightfully subjected to defend in it’s courts  Undue Burden – whether forcing the ∆ to enter the forum is too much of a burden  Volition. Court holds that defendants contacts with the forum state are not sufficient to ground assertion of personal (general) jurisdiction. o Relies on Rosenvberg v. Cause of action (crash) did not arise in/unrelated to TX.  “Other Factors” first used as a separate test in WWV and here again. • Also weigh other factors that cut against a finding of personal jurisdiction (Part II-B majority): forum state has little interest in the dispute. (SCOTUS 1952) o During the war the entire company moved to Ohio! Whether Perkins the non Ohio resident could sue in Ohio for something that did not happen in Ohio. such that assertion of Jurisdiction is warranted even if the cause of action is unrelated or does not arise out of the ∆ activities. May – (How much do you need to ground a general jurisdiction Case – MORE!) Plaintiff survivors of victims of a helicopter crash in Peru sue defendant Colombian corporation. marketing in the state through a distributor there). offense to international comity. are not sufficient to ground jurisdiction o Holding limited –this case decided at a time when jurisdiction was based on constructive consent  Brennan’s Dissent: This is possibly a specific J case . not necessarily enough to warrant General Jurisdiction  Exists when ∆ has sufficient minimum contacts with the forum: o Traditional notions of Fair Play and Substantive Justice (International Shoe)  Reciprocity. even if occurring on a regular basis.  Opposing View: Brennan • It’s a relevant contact if D put the product in the stream of commerce and could reasonably anticipate that the product will get to C. Is appropriate when there are sufficient minimum contacts so as not to offend the traditional notions of fair play and Substantial Justice o Higher standard than specific jurisdiction o Vague.  Systemic Forum Specific Factors • Interest of Forum in providing avenues for its citizens to sue • Convenience to ∏ as the master of his claim • Other states interests in the effective resolution of disputes and promotion of social agenda’s.

 Holding: QIR and IR jurisdiction can’t be exercised over unless the ∆ had such minimum contacts with the forum state that in personam jurisdiction could be exercised over her.  Shaffer v. o Other Bases  Power  Since Pennoyer new forms of property put in-rem and quasi in rem under scrutiny.  Factors to consider when choosing where to sue (what state):  Substantive law (statute of limitations)  Reach of the long arm statute  Is the Forum Pro ∏ or Pro ∆  Convenience to the ∏ (Proximity to home forum?)  Where are the witnesses and the evidence?  Removal Concerns. • Applies the International Shoe due process standard to the assertion of QIR Jurisdiction. and Epstein also posts notice on the courthouse door. Facts: o Collateral Attack Case:  This is the case of Epstein v. Respects the value of Commity. it tends to invoke on the margins sov. And is interested in protecting state boundaries and is somewhat pro business. Since the Doctrine is the same in federal state courts. cognizant for state boundaries. IP.  The extension of Power over property over new property created to deal with modern exigencies of life.Cause does not arise from activities in the forum. Stocks.” According to Scotus when Harris walked into MD he took creditor with him. It gives emphasis to convenience of the ∏ rather then burden on the ∆ FF get more play here o Oconor.  Facts: ∏ (DE) files a shareholders derivative suit in DE court against ∆ DE corp with principle place of business in AZ. Vindicates the ∏ interest in fora but the states interests in protecting those rights. . buth they are related to the forum? There is also a Bu/For argument? o We should look for a sliding scale test not strict line between Specific/General Jurisdiction. o Pro ∏ or Pro ∆? o Brennan is the Champion of Pro ∏ stance. An expansive approach. Balk (Scotus 1905) represents a good example of this modernization and the problems that arise: Presence of Property Rule of Pennoyer applies to an intangible the Situs of a debt isn’t placed where the creditor is located but wherever the debtor may travel. Heitner (Scouts 1977) Rule: Minimum contact analysis of PJ applicable to in Rem and quasi in Rem jurisdiction. court could adjudicate quasi in rem over Balks interests.  Balk then sues Harris in NC court  Balk brought a collateral attack asserting judgment not valid because of personal jurisdiction  NC court refuses to honor the judgement of the MD court on the ground that MD had no jurisdiction to attach the debt as the situs was in NC  Supreme Court disagrees and hold that the debt travels with the debtor  Rights of the creditor (Balk) to his property (debt owed by harris) are affected by the movements of debtor-by being in MD. The property that is seized is a different property than that which is in debt. If a direct assertion of PJ is invalid then so will QIR IR.  Epstein takes advantage of the fact that Harris goes to MD and attaches the debt to Harris. And federalism concerns. Traditional Notions of Justice and Fairness. Bank Accounts now become open to power over property Jurisdiction  Harris v. • Court also confirms that real prop in a state will satisfy minicontacts for Jurisdictional pursposes most of the time. for cause arising from OR. It’s quasi-Rem it deals with property but not  the property that is the subject of the dispute.more formalistic in approach.does this comport with Mini-contacts? Probably not   The whole question of this case is “Where is the debt….  Mobility is a trademark of new property it becomes difficult to say where the property is. Balk for the 320 dollars debt that Balk owes him.

you have various options to Collaterally Attack the default judgment. But if you lose.Case dismissed  You lose  Submit to Jurisdiction  Leave and suffer default  If you default in the first instance. you are foreclosed from attacking the merits  To force you to specifically appear would be contradictory to the doctrine of PJ Forcing a special appearance would be as burdensome as making a general appearance  Presence  Notion of Tag Jurisdiction – serve someone while they are in the Forum  Burnahm v. where the traditional rules for Qir jurisdiction were changed to conform with Int’l Shoe requirements. Superior Court (Scouts 1990) – Jurisdiction based on physical presence. o Scouts likes the Clauses in both Bremen an dCarnival.  Consent by Law – Fiat o Constructive Consent – Hess v.  Waive objections to PJ and venue. you have to think in terms of bargained for benefits. The are not presumed invalid  Consent by appearance and Waiver of Objection: o Failure to file a 12(b) motion rasing a lack of PJ defense waives do business in the state you must register and appoint an agent to receive process  Still controversial Courts have struck may of these down but not facially. Breman Factors: Honor forum caluse unless enforcement would be unreasonable or unjust.• DE statue provided that the situs of the stock was DE • Court seized the stock to assert QIR • Question was. o Shoe should only apply to absent ∆ o Plurality decision:  Brennan Concurring: Presence should be swallowed up by Shaffer. There is a Law and econ Argument  Company gets something valuable in certainty of the laws that will be applied  Also saves resources on litigation  Expenses of ligation means cheaper tickets. there is a traditional expectation. o General and Special Apperances  Some states allow special appearances for all 3 types of jurisdiction (Personal.Sufficient Minimum Contacts must be Had. IR)  Consent by Contract or Agreement: o Forum Selection Clauses – set the forum for any disputes over a contract.  Scalia relies on Pedigree of presence in the Common Law: o ∆ agrues all PJ decisions based on Shoe test of minimum contracts. Limited Apperances and Collateral Attack: Rules for Challenging In Personam Jurisdiction: 3 Things you can do if you are sued in Personam:  Make General Apperance (waiver of objections)  Default  Special/Limited Appearance  You win. or the clause was invalid for such reasons as fraud or that it is overreaching o Cases are limited because they are in admiralty.  Breman and Carnival Cruise (Scotus 1972 & 1991) o Admiralty cases allows the fed courts to fashion substance and procedure-eerie just does not apply. Puloski o Constructive Presence:  Business Registration Laws. even if he has no minimum contacts with the Forum. Fed courts get to decide what the effects it gives to Forum Selection Clauses in Admiralty. .do the ∆ have to defend this suit in DE or default up the value of the stock? • Court says no: Requires the same standard for In personam Jurisdiction as for QIR and IR  Overrules Balk. Because it is the traditional way .  Rule: Jursidiction may be asserted over an individual who is present in the Fourm. o Presence satisfied test of “traditional notions of fair play and substantial justice. o Whenever you have a contracted for override of default procedural rules. QIR.  Consent  Parties can consent to PJ through their actions by waiver or contract.

States have rules governing choice of law (Erie questions)  JURISDICTIONAL REACH OF FEDERAL COURTS – SERVICE MECHANICS  Quasi In Rem Jurisdiction in Federal Courts a.o Choice of law clauses –parallel but not the same treatment. (1987). you can’t find a defendant). • If a long-arm statute allows PJ over persons who do business in the state.Allows QIR jurisdiction if a federal statute so provides. b. (Applies to all actions in federal court). but not any one state. jurisdiction requires the same minimum contacts for in personam jurisdiction. must be impossible/not feasible (i. to establish PJ over parties joined under Rules 14 or 19 . In states with short long-arm statutes. .“Bulge Provision” i. but a defendant only has 5 houses in the state and no business ties. seized must be in the judicial district where court sits.  Rule 4(k)(2) . QIR. iii. Congress enacts Rule 4(k)(2) – Omni Provision..S. b. might not be amenable to service of process in any one state. QIR may be only option (statute may not allow in personam jurisdiction in a case). • This meant some foreign defendants doing business in the U. only using 100 miles of this. up to 100 miles from the court. Rule 4(n)(2) allows QIR jurisdiction to the limits of Shaffer (must have minimum contacts). Open question on whether minimum contacts are needed: • • Yes: Common sense  U. A federal district court has power of PJ if a state court of general jurisdiction would have PJ (use state’s long-arm statute). • LA long-arm statute did not reach British defendants. After Shaffer. Rule 4(n)(1) . • Allows a federal district court to assert PJ over a foreign defendant who has minimum contacts with the U. • Only applies in federal question cases. you must. Rule 4(k)(1)(A) . Service of process is easier in QIR • Rather than chasing someone to serve them personally (expensive and you may not know where they are) you can seize prop. Rudolf Wolff & Co. • Investors in Louisiana sued British corporation in LA federal court.  Rule 4(k) – adopts state long-arm statute into law of federal court a. ii.S. • Can only be used if you cannot obtain in personam jurisdiction • Can’t argue it’s too expensive. QIR jurisdiction still serves two purposes: i. ii.regardless of any other basis for PJ. Rule 4(k) deals only with persons.Omni Provision i. the 5th Amendment Due Process Clause could still apply to prevent an unreasonable excuse of PJ over nonresident ∆. even if a federal statute expressly grants service of process authority. you can seize the houses to establish jurisdiction. Federal district court can go over the state border. and post. After Shaffer. has jurisdiction over anyone within its borders as the sovereign creating the courts.Allows state law (where court sits) to be used to assert QIR jurisdiction in federal court. Enacted by Congress in reaction to the SCOTUS decision in Omni Capital International v. leaving it for Congress. • If you can get in personam jurisdiction. Unless ∆ is amenable to service of process there is no PJ – implies that. • Court refused to create a rule authorizing service of process in this situation.e. • Prop.“Piggyback Provision” i.S. as a whole. c. Rule 4(k)(1)(B) . i. • If state long-arm statute is short. Rule 4(n) governs QIR jurisdiction in federal courts. ii. Rule 4(n)(2) . ii. iii. not prop. No: Restrictive  May not comport with fairness under Intl Shoe (Oxford case).

Waiver of Service • Plaintiff can mail service to defendant requesting waiver. vi.” • Must reasonably expect that deliver to that person would come to the attention of individuals who handle litigation  flexible standard.Form of Summons ii. Rule 4(e) . • When would you use? Foreign parties.Within 120 days of filing complaint. • Can personally deliver it. Rule 4(c) . Briggs (SCOTUS.Says assertion of PJ is constrained by the notions of “fairness” derived from the Fifth Amendment.Rules for Service of Process • Piggybacks on rules of the state where the district court is located OR where the service is actually effected. • Fairness inquiry should be part of this analysis. • Fifth Amendment applies here. Rule 4(h) .S. • iv. v. • Faults in any of the above and there is a failure in due process. or by delivering a copy to an authorized agent. Reward for defendant for waiving . Notice& Opportunity to Be Heard •  Notice:  Sufficient Notice is required to meet due process requirements • Parts of Due Process: i) Power over the person ii) Perfection through correct service of process iii) Adequate notice of the lawsuit iv) Opportunity to be heard. • Penalty for failing to waive .Time Limit . as a whole to ground jurisdiction.S. Rule 4(a) .Justice Stewart’s dissent endorses the traditional view that if you are “present” in the U.). iv. Only applies when PJ cannot be asserted in any other place . Hellenic Challenger case: Interprets Rule 4(h) as allowing service to an agent who stands in a position to render it “fair. • • Oxford argues no distinction between standards under 5th or 14th.  Notice governed by Rule 4. Rule 4(d) . • Where there are sufficient minimum contacts with one state with a short long arm statute OR • Where there is no state with sufficient contacts.  Adequacy/Sufficiency of Notice: • “Best Notice Practicable Standard” • In Person Service is always enough other standards are measured against this • Seizure and Notice/Posting relates to real property for IR and QIR . corporations (unusual for US corp.Service on Corporations • Serve an agent authorized to receive no state could PJ be asserted. one state does have minimum contracts. not Fourteenth (states). off-shore company.60 days to file answer (20 days). reasonable and just to imply the authority on his part to receive services. but that state has a short long-arm statute (state jurisdiction fails)..S. • Amalgam of traditional view (sovereign has power to call anyone within its borders) with modern minimum contacts view (add up contacts within the borders of the sovereign). 1980) . Rule 4(m) .  Other provisions of Rule 4 i. Pa.  Oxford case (E. as a whole has sufficient minimum contacts. • • Question of whether “reasonableness side” of test applies (Justice Stewart says it does not). • Plaintiff must arrange for service • Anyone over 18 years not a party to the suit. but the U. leave a D’s home with someone responsible. 1974) . Two cases impacting this rule: Stafford v.Who can serve summons costs of personal service. Aggregates contacts with U.. you can be haled into court anywhere within the borders.

 Pennoyer method of notice is used here: Publication and seizure. just requires the best efforts to reach as many parties as possible (best efforts practicable) Must answer the question of what would be the most effective and efficient way to inform the parties of the situation given who the parties are and the means of service that are available. quasi.Mullane v. . Not everyone will be reached is an assumption that the courts made.      3 Groups 1) ∆ where addresses known – notice required via mail 2) ∆ whereabouts unknown – notice not required 3) ∆ interests not all the way known not required  In rem and quasi in Rem – Does traditional notice requirement survive the most reasonably practicable standard?  Mennonite: Court says traditional notice requirement for IN REM actions. Pooled 113 trusts. in personam.” “The best notice practicable. more effective service is available at a reasonable cost. THAT allowed banks to set up common trusts that pooled smaller trusts. (SCOTUS 1950) NY STATE STATUTE. . Mortagee is available through public records: personal or mailed notice should be required  Unless mortgagee is not reasonably identifiable. must be mailed to tenants. says this is really about personal right to the money.” is the standard that satisfies the due process of the 14th amendment. Central Hanover Bank & Trust Co. risk of knocking down the notice too great and is thus not a reliable means of showing the parties that they are going to be called to defend in front of the courts (Mullane) o Court indicates that there is a ranking of notice (personal service. (a la Pennoyer)  GREENE V. He makes a special appearance.  The adversarial process is said to insure the most accurate outcome.  The court doesen’t care how the case was categorized. “notice must be reasonably calculated . Beneficiaries had an interest and notice of the proceeding was publication in the public newspaper. . o Traditionally this is effective to produce notice o People were assumed to have constructive notice of when property was seized.  Due process: requires parties to have a chance in the resolution of a dispute and present their side of the issue. ∏ was guardian of those with an interest in the trust. mail. taking strength in Shoe. This turns Mullane concern with expediency and streamlining on its process on its head. o Posting notice in a condemnation proceeding against a landowner is known is inadequate as a matter of Constitutional Due Process o Eviction notice posted on tenants door not sufficient notice. Because there is knowledge of address. so your rights ought to be guarded by due process standard. posting. LINDSEY (1982) – O’connors opinion makes it so that there is no formal way to serve process. constructive notice alone is not sufficient  Best notice practicable undercuts Traditional notions of Notice. no longer suffice. o In the projects. NY STATE conducted Audits.  Law develops through deprivations of property interest cases • Private Law: disputes between individuals who commandeer the state to assert power over property o Jurisdiction o Secure Judgment o Secure Partial Interest in property . in rem. And the ∏ did not like the way in which notice happens. publication) cannot be relied upon in all cases) o This Analysis is too fact specific case by case Analysis Opportunity to Be Heard  Parties must have an opportunity to be heard on their side of the case. o Second. it is required that something sent in the mail  Publication and posting of notice of sale of real property for nonpayment of taxes is constitutionally insufficient to mortagees easily identifiable. Balance of interests: o Interest of Individuals to know of lawsuit and present their defense o Interest to of society to have judicial matters settled – finality Notice need not reach all parties. In the end the question was whether or not this notice comports with the traditional notions of notice. .  Court hold that this is not the best notice practicable: o First.

(not ex parte but bilateral) • 3 Part Test: o 1)Private interest involved is it a property interest? Is it temporary or permanent? o 2)Risk of erroneious deprivation vs. question of what kind of hearing is sufficient. Sniadach v. the safe guards are in place are inadequate. the nature of inquiry and the standard simply too fact specific and too open ended that with this conclusory affidavit directed to a clerk is NOT ADEQUATE ENOUGH • An almost categorical embrace that we need bi lateral process. Govt. what matters is that it is a deprivation. w/o notice or opportunity to be heard. preliminary injuctions. • Are the procedures for termination of disability benefits adequate for due process right. Mathews v. pre-actions attachments or seizures. 1974) • Prop seizure. so important to sustaining life. Immediately • Court up hold pre-hearing seizure of property in LA • Resolution of the due process question must take into account not only the interests of the buyer of the property but those of the seller as well.? After Notice there is a bilateral hearing. (Scotus.T. o Exceptions to the constitutionally required opportunity to be heard. • Court distinguishes Fuentes: o Creditor makes required showing before a judge not a clerk o Doc. Family Finance Corp.• o Execute a Judgment Public Law: o Public benefits disputes o Forfeiture. 1969) • Pre-judgment garnishment of wages violated due process. upheld b/c judge (as opposed to clerk) permitted seizure only after presented w/verified petition that person whose property seized could reclaim prop. the value of more procedures and safeguards o 3) Cost/Burden of additional procedure • Application of the Factors to this case: . Grant Co. Benefits are a form of property. Grant takes away from Fuentes and leaves confusion in the Wake. (SCOTUS. as opposed to Sniadach in which the creditor had no prior interest in the wages being garnished) • Court draws back from Fuentes unilateral pre-seizure hearings in certain situations are appropriate. so it is entitled to withdraw them at any time o Court held in (Goldberg v. cannot take a person’s wages.  Opportunity to be Heard Doctrine: requires some form of hearing prior to deprivation. Proof is needed to satisfy a more narrow standard o Creditor had a prior interest in the property (debtor violated installment agreement. Elldridge( Scotus 1976) • ∏ Eldridge commenced this suit after being deined continued Disability payments argued that he was deprived due process. Kelly) once the benefits are passed into law they become a kind of property interest entitled to protection.the Proceeding must be Bi-Lateral. Shevin: (Scotus 1972) (4-3 Holding) • Involves a Replevin statute. o Rights v. • The Court makes a very strong statement for the need absent extraordinary circumstances for the party being deprived of action be heard • Timing – Proceedings necessary must be pre deprivation • Substance. • Absent notice and opportunity to be heard. • In this kind of case. Privilege o Argument that the government is not required to provide these benefits. Evolution:  Fuentes v.) • Leaves a little chaos How do you reconcile Fuentes and Mitchell? • The bottom line is that Mitchell v. Mitchell v. W.criminal /civil actions  Rule 64 Seizure of Person or Property: o “provisional remedies” temporary restraining orders. • Doesen’t matter that the interests are divided • Nor does it matter that the deprivation is temporary. But like in Fuentes we are talking about at best a temporary deprivation.

The implications are that you can’t use seizure as the implications of giving notice.) Low risk of error in this procedure. • Distinguish Goldberg. • Also. via lein on the property to protect its interests o The property in question is not extraordinary to justify postponement of notice and hearing. Elldridge 3 Part Test. disappearing. • This was just a temporary deprivation. Similar distinction between Fuentes and Mitchell. and the govt. establish jurisdiction  Ex parte Proceeding in which Magistrate rules for government and property wasseized without prior notice or an adversarial hearing.  Connecticut statute allowed such attachment through ex parte proceeding. so there is really no additional cost to moving it to pre-deprivation. (home) is not in danger of being moved.  The Lower Courts have really ignored what Kennedy has said in Daniel Good. seize tainted property. in which factors to consider for welfare payments are more elusive.  Court finds due process consideration apply to this forfeiture: Applies Mathews v. • A lien on the house can be disruptive • Risk of Error/Value of more procedure to reduce error: Significant. as the private interest involved is significant. initated an in rem proceeding againt property.  US v.  Govt. disability benefits do not go to the heart of supporting oneself. • Only concerned about movable prop. • Does not matter that judge issues the attachment writ (a retreat from the Mitchell case?). post-deprivation review of the decision is available to Π. o Good was involved in drug crime.  Court extends the Mathews Test to private law setting. had other means. • Nature of the legal standard is considered. • Real prop. o Good’s interest in his boat are significant o The exparte’s seizure contains an unacceptable risk of error. Court finds the procedures here are sufficient to comport with due process.  Court considers statute in light of the 3 considerations of Mathews test: • Private interest involved: Significant in this case. • Facts are easily document. • Compare interests of Π with ∆ (instead of government’s interest): • Interests of the Π are too minimal to justify. Doehr (Houses Just don’t get up and walk away! SCOTUS 1993) •  Π asserts a pre-judgment attachment against the house of ∆ as security for a possible judgment for an unrelated dispute for assault and battery. in every case there will be a full post-deprivation hearing. • Unlike welfare benefits in Goldberg. channeled through the doctor. • A person’s home is important to him. • Procedure is ex parte (one-sided inquiries are not good). o Seizure served dual purpose.1.  Court strikes down the attachment statute. 3.  Connecticut v. Daniel Good Real Prop. otherwise they would be unable to maintain In Rem and Quasi in Rem. (Scotus 1993) o Federal statute provides for forfeiture of property relating to drug crimes. and the risk of error is to high.) Cost involved in additional procedures is high. • Types of facts involved in determination are considered. • Many more hearings at much more cost. 2. o No compelling need for govt for prompt action:  Distinct form Calero-Toledo in which the action was necessary to prevent destruction or getting rid of boat (In this case the house can not run away)  This risk created an exception to the pre deprivation notice and opportunity to be heard.) The private interests are not substantial enough. .  In effect you have to give people notice before you give them notice.

In this case. o § 1391 (d). if all ∆ reside in the same state.  States have Procedural Law  Feds have § 1391 To Govern Venue  Venue is a Subconstitutional Right.  Two Factors in Choosing Venue o 1) Party: The trend has been to favor the ∆ in recent times o 2) Systemic  Venue is sub state inquiry.  If there is no such district deemed to reside where it has the most significant contacts. 1391 A – Diversity: a1: None of the residents of the same state a2: Yes this place is Illinois.  Important Note: How do you apply the Fallback provision of 1391 a3 and b3? When there is no other place where there is venue in the state.  (2) Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. But if the long arm statute fails to reach and there are no minimum contacts then according to Glannon you are done. or  (3) district in which any ∆ is subject to PJ at the time the action is commenced. That is the subject of the action is situated.Venue Introduction  Refers to a place where Judicial Power can be exercised consistent with Personal Jurisdiction  And given that additional choices will be made given the choice of the original parties and the suitability of the venue itself. Courts have considerable discretion.Federal Venue Statue: o § 1391 (A) Diversity Cases may be brought in:  (1) Judicial districtrict where any ∆ resides. it can be one of three ways o State law of residence o 1332 citizenship o Minimum Contacts? • Approaching an exam question you would argue in the alternative. District where andy ∆ resdies in same state.Aliens  Aleins subject to suit in any district • The idea is that ∆ will be equally inconvenienced no matter where he is domiciled. …This is known as the Fall Back provision o § 1391 (B) Non-Diversity Cases May be brought in  (1) Jud. Glannon and Wax disagree. or a substantial part of property that is the subject of the action is located. Southern District of CA etc. Statutes  28 USC § 1391. But According to Wax if you can’t bring because of PJ in Illnios then move to the fallback provision if you can’t bring everyone together you simply piecemeal the action. . if there is no distrinct in which the action may otherwise be brought. or in which a substantial part of prop. or  (2) Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. you simply split up the case.  (3) Judicial district in which any ∆ May BE FOUND. o § 1391 (C). Example: Suppose that CA ∏ sues Colorado resident and Ohio Resident for an accident that takes place in Illinois.  In a state (where ∆ subject to PJ) with more than one judicial district. or • Resides plays out in mini Contacts for corporations. Wax says that there may be no place where there is both personal jurisdiction and venue.Corporate ∆ Defines where corporations reside for the purposes of 1391 A(1) and B(1)  Deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. only a set of pragmatic concerns. o Breach of contract  Or there is no other place where you can exercise personal jurisdiction. Where the main action happens out of the country. under 1391 a 1 and a 2. Northern District of Cali. deemed to reside in any district in that state within which its contacts would be sufficient to subject it to PJ if that district were a separate state. if there is no district in which the action otherwise be brough. • For individual persons.

or if it be in the interest of justice.  Made upon motion by Π or ∆. Court held that PA court (transferee forum) was required to apply the MS law (transferor forum) under the Van Dusen rule. • • This prevents ∆ ’s from forum-shopping: searching for a forum with more favorable law is moot.  Ferens v. o Either Π or ∆ may move for transfer. you don’t take another circuits precedent 28 UCS § 1406 . A move to transfer should be a change of court rooms and not a change of law. o Applies only when venue in the transferor court is improper.Cure or Waiver of Defects  (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss. (SCOTUS.Change of Venue: o Text: (a) For the convenience of parties and witnesses. You don’t have to worry about ∆ abusing because the judge in the interest of justice and for the conv. . an action transferred under § 1404(a) is governed by the law of the state where the transferor ct sits. not dismissal. and SMJ (i. 1960) ∏ brings a federal patent infringement against ∆ on ∆ home turf of Texas. PJ. law follows transfer. Of the parties the judge is the gate keeper  Van Dusen Rule: When you transfer of 1404 in diversity you take the law of the transferor forum. Filed suit in MS. • (Under common law FNC.  Van Dusen Rule: B/c of Erie doctrine applicable to diversity cases. a district court may transfer any civil action to any other district or division where it might have been brought. despite Π forum-shopping. this is a court where action could have been brought. DC refuses in Illinois and the 7 th circuit removes it back  Says the supreme court: (There has to be jurisdiction and venue in the forum ant the beginning of the law suit)  Frankfuter worries about the oppression: o How does this differ from FNC? if the ∆ chooses an alternative venue. not federal and state court). he waives the right to object to lack of PJ or Statute of limitations o Transfer statute is the codification of Forum Non Conveniens which is something the courts always had. Blaski (SCOTUS. 1990)Π missed statute of limitations in PA. then moved for a transfer to PA court under § 1404(a). allows Π ’s to forum shop: Π’s can file suit in an inconvenient but favorable forum and then seek transfer. 28 USC 1404. o Partial codification of forum non conveniens doctrine (only allows transfer between 2 federal courts. with a longer statute of limitation. o Key aspects of § 1404 Change of Venue:  Transfer.  (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.e.  Illinois ∏ brought a Patent Infringement against Texas ∆ in Texas  ∆ wants to transfer to Illinois Court  5th circuit upholds the transfer. ∆ moves to transfer case to IL under § 1404(a). in the interest of justice. However. • The Van Dusen rule is still good law. transfer such case to any district or division in which it could have been brought. law did not transfer)  Transferor and transferee forums must have proper venue. o Court has power to dismiss or transfer to court with proper venue. A § 1404(a) transfer is permitted only if the transferee ct would have venue. but there is a better place for this action):  Hoffman v.   Alternative forum: federal. John Deere Co. PJ. Law of transferor forum applies for diversity cases (including choice of law rules and statutes of limitation). and SMJ on the date the complaint was filed in the transferor ct.  Doesen’t apply in a Federal law cases.

FNC only applies where this is more convenient non-federal court § 1404a covers the rest.Hoffman v. there is substantial weight given to his choice of forum  The presence of witnesses and evidence for the ∏ case  How substantial is the substantive law of the alternate forum does it provide for relief?  ∆ specific Factors:  Presence of witnesses and evidence for ∆ case (can you find witnesses in alternate forum)  Third party practice (does ∆ need to implead?)  Public or Forum related interests  Burden on Jury/court (confusion.  Only works on ∆ motion  Alternative Forum: Foreign or State Court  In Federal System. Venue must be improper in the transferor forum for § 1406 to apply. • • • Forum Non Conveniens  Generally:  A court may resist imposition of its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute  Too inconvenient for the ∆ to litigate the case  If successful. o Venue is waived if not timely objected to (Rule 12(b)(3)). PJ (and SMJ) . PA court lacked both PJ and venue. if you allow this. • Potential for Π’s to continue to pursue the claim without risking the expiration of statute of limitations (may run during case). NY court dismissed.o Venue can be waived. Reyno (SCOTUS. Heiman (SCOTUS. Court held that such a case is exactly what § 1406 is meant to address. Blaski rule applies. claiming lacked the power to transfer the case because it lacked PJ.  Key aspects of § 1406: o o Transfer or dismissal. FNC leads to dismissal or stay but not transfer. but transferred case to NY federal court. 1962) • • SCOTUS says that a § 1406(a) transfer is permitted even if the transferor ct doesn’t have PJ over the ∆. even if a court lacks PJ (as long as it also lacks venue so that § 1406 applies). Π or ∆ may make motion Alternative forum: federal Law of transferee forum applies. PJ can be lacking in transferor forum (as long as venue is also): • Goldlawr v. o o • o o Majority rule: statute of limitations of the transferee forum applies (prevents gaming of the system). it can transfer to proper court. Transferee forum must have venue.  Piper Aircraft v. 1981) . A trade off!)  Substantive Law taken into account in dismissal decision (will the different law significantly impact the outcome of the case)  Dismissing forum must have venue.  Substantive law of the alternative Forum Applies:  But statute of limitations may be waived as a defense by the ∆ as a condition of the dismissal (let you move to more convenient forum. familiarity)  Event of local concern or interest – center of gravity?  Connection of events /persons to the alternate forum. PJ and SMJ  IF waived Non venue and PJ necessary in the alternative forum.  Three part test for FNC:  ∏ specific factors  connection to the transferor forum .

 Possibility of change in the substantive law may be given substantial weight only if the remedy in the alternative forum is so clearly inadequate or unsatisfactory as to be no remedy at all. ∆s agree to be sued in Scotland. enlarging or modifying andy substantive federal rights. and finds weight of factors points to Scotland as the appropriate forum. the presumption applies w/less force when the π is from a foreign country.”  Swift v.  Scottish Π’s sued ∆’s for damages from a plane crash in Scotland.S § 1652) • Laws of the several states shall be the rules of decision in civil actions in the Courts of the U. strong presumption in favor of π’s choice of forum which may be overcome only when the convenience factors clearly point to trial in the alternative forum.  Alternative forum is available. enlarge or modify any substantive right. courts allowed fedral rules of procedure to trump state law (even when the distinctinon is murky) • (b) limits the power of § 2072 by stipulating taht rules shall not abridge.  BUT.  Conflict between NY state law and developing common law elsewhere (England) • NY common law required ∏ could not collect .  Supreme Court upholds dismissal. applying a three part test of considerations. the result is a tension between § 1652 (laws of the several states shall apply) and § 2072 (fed power to provide for procedural rules) • In general. Ascertaining the Governing Law The Erie Doctrine:  Choice of Law Problems  The Question is Which Soverign’s Law should apply to the dispute?  Until now. a federal court should apply federal substantive law to the state claim unless that claim involved state legislative law or matter of custom of usage  This was the interpretation of the Rules Decision Act for Almost 100 Years.  Ordinarily.S where thy apply. Tyson (Scotus 1842) The Court Tells a Natural Law Story:  Story Majority holds that in a diversity case with a claim based upon the state law. unless Constitution or Federal Law Provides otherwise • Judiciary Act of 1789 • Questions that arose ♦ Does this apply to statutory or common law? Or both? ♦ Does this cover substantive or procedural or both?  Rules Enabling Act (28 USC § 2072) • (a)Congressional grant of authority to the Scotus to prescribe the rules of practice and procedure for cases in the federal courts • Prohibits such rules from abridging. question was which of the Sov’s Courts • SMJ was a question of Fed or State Court • PJ and Venue – Where do you take the case?  Two Choice of Law Problems • Horizontal: Law of Which state (Conflict of Laws) • Vertical: Choosing between or State or Fed Courts (Erie)  Statutory Underpinnings  Rules of Decisions Act (28 U. After removing and transferring to PA. ∆’s moved for dismissal on the ground of forum non conveniens. • Difference between substance and procedure is unclear.

Co. 1928)  Illustrative problems with Swift. v. federal court was then able to apply its “own” common law instead KY law to grant favorable judgment to ∏ in monopoly issue. same conclusion  Practical Agenda: • Saw the law as a body knowledge ot there to be discovered. Brown & Yellow (SCOTUS.  Erie doctrine-> constitutionally law mandate that applies to diversity cases  ∏ hit by ∆ railroad sued for injuries suffered  PA common law would have denied ∏ recovery as trespasser. holding the Rules of Decisions Act applies to both state statute and decisional law for diversity cases  Rationale: Two objectives • Elminates Forum Shopping and disparity between federal and state rulings • Elminiates discrimination against in state ∏ through the inequitable administration of the law. • Separation of Powers problem: allowing federal courts to make law violates the Constitutions delegation of legislative authority to Congress.  KY ∏ reincorporated in TN in order to gain diversity jurisdiction. law is always the product of soverign power. in the wake of Swift.  Holmes in dissent • Natural Law: was not realistic.  Black & White Taxicab v. • Federalism problem: Allowing federal courts “make law” in areas reserved to the states violated federalism principle. Tompkins (Scotus. • Story in a unanimous decision decided RDA applies only to statutory law of the states  Natural Law Agenda • Saw the law as a body of knowledge out there to be discovered • Idea that there would be convergence of decisions. while general law applied by fed courts under swift would have allowed ∏ recovery. so ∏ sued in federal court  Court overrules Swift v. 1938) RDA case  Holding: that state substantive law applies in a diversity case -> substantive law of a state includes its decisional law. Tyson. this is a separation of Powers Problem. .  Problems: • Created the opportunity for forum shopping (Black and White Taxi) • Deprived states of authority to effect policy through the common law • Treated in state ∏ differently from out of state ∏ because in state ∏ are bound by states decisional law while out state ∏ in diversity action can choose different law in that states Federal Court. • Such law does not exist with some authority behind it. there was not a convergence of opinion as courts discovered the “august corpus” or transcendental body of law” – such does not exist.• Common law outside of NY allowed collection  Misterpretation of “laws of several states from the RDA” resulted in the outcome: • RDA applies only to statutory law – the federal courts are only required to defer to the state law when the law in conflict is a statute.  Erie R. • Federal Common law is Unconstitutional ♦ Vertrically: Congress has no authority to legislate in areas that are generally reserved to the states so the courts shouldn’t either ♦ Horizontally: Courts have no authority to legislate. • Developing common law was more progressive modem. classic case of forum shopping.

Restores balance of power between federal and state courts recognizing and preserving autonomy and independence. • ♦ ♦ AN ERIE EVOLUTION  Guarnty Trust v. but by the broad implications of all who are going to come under the conflict of the rules:  Also. then follow the state rule. in diversity cases. o First question: “Is the rule difference outcome determinative?”  If yes. JUDGE MADE RULES o ∏ : the statute of limitations is procedural and not affected by erie o ∆: State Law Controls. 1958 RDA Case)  Whether the individual suing under FELA has a right to have his cases decided by the Judge or a Jury. Trumps judge made Rule  Out Come Determinative Test: o If applying the Federal rule over the state rule significantly changes the litigation we look at two factors:  Will having two rules result in forum shopping If yes you give up the Federal Rule  Will it result in the inequitable administration of justice. it is uncertain whether this is an Outcome Determination Issue.  Question: Which statute of limitations will apply?  Feds.  If not. Unguided Erie Choices: When there is no precedent from the state supreme court.  Court modifies York: o There are some cases in which federal policy is strong enough to make the federal rule control for example. federal courts interpret lower court rulings or try to guess what the state supreme court would have  Forum shopping has not been totally eliminated but this may be simply unavoidable. should the federal court apply state procedural rules  Depends on the “interpretations of rules of decisions” and “where they apply”  Courts have interpreted that Congress intended to preserve the courts inherent (Article III) powers to create their own procedural rules. o Second question: “If the rule difference is outcome determinative. is there a strong federal interest in following the federal rule?”  If yes. In Aftermath of Erie: 3 Questions: ♦ Federal courts required to follow state substantive law but follow federal procedureal law.  Courts have always had inherent power to create their own rules and provide (see Bivens)  Question: in the absence of federal law (prior to the Rules Enabling Act). then apply the federal judge-made rule. decided that they wanted to apply a different statute of limitations. • Acknowledges no convergence of opinion after swift.  Holding: o A state statute of limitations is substantive and therefore controls in a diversity case in federal court. State Court. . York (SCOTUS 1945) RDA CASE ( ORIGINAL OUTCOME DETERMINATIVE TEST)  Under Erie. then there can be no separate federal rule. state law is substantive if applying it would lead to a different outcome in Federal vs. while not from the 7th Amendment gathers strength from it o Outcome Determination should be applied not to the particular case. which rises from the courts power in Equity to give an appropriate remedy. The case may not be decided differently simply because there is a jury deciding the case instead of the judge. presumption in favor of state rule unless federal interest. Trial by jury.  If no. traditionally courts in Equity had broader powers to shape a remedy. Different rules applying when parties are from the Forum States o If you flunk these tests and they have a pragmatic effect on party’s behaviour.  Encourages Uniformity in decisions between state courts and their federal counter parts  Opposite rule would lead to Forum Shopping a la BW TAXI  Byrd v. Blue Ridge Rural Electric Cooperative (SCOTUS. Certification: Some states allow federal courts to certify questions of state law to the state supreme court. then the federal rule is followed. This doesent really lead to Forum Shopping  Court here modifies the outcome determinative test to allow for consideration of legitimate federal policy interests. to clarify state law position on an issue.  STATE RULES VS.

Armco Steel Corp.  Question 1) is the Federal Statute Sufficiently Broad to control the issue before the court o Congress directed multiple considerations govern transfer within the fed system under § 1404 o State policy focuses on just one factor (disfavoring the clause) would defeat the purpose of considering many factors o Federal statute is therefore broad enough to cover the issue  Question 2) Is this a valid exercise of Congressional Power? o This rule is arguably procedural o Power of Congress to enact this statute trhogh REA is found under the Necessary and Proper Clause: The software to make the system run  Held: 28 USC 1404 A applies despite a state law that looks unfavorably upon contractual forum selection clauses. Hanna v. It is a case by case factor. It does not the rule for the purpose of tolling the statute of limitations. 1965) REA –Modified Outcome Determinative TEST  Involves a conflict of Federal rule 4d1. and if so within the grant of Constitutional Power under the NECESSARY AND PROPER CLAUSE of ARTICLE I(FRCP DON”T FAIL THIS)  Court avoids the problem by saying that thre is no conflict. with the state rule which requires service to be hand delivered.  1404A Swallows the Forum Selection Clause as one of the factors the courts will consider  Walker v. o State law did not deem the action commenced until the service of process o Fed Rule provides filing of the action commences the action  Court finds that the test is whether the Rule was within the scopre of the REA (arguably procedural). Application of Hanna is premised on a “direct collision” between the federal rule and the state law.  The federal rule does not apply for determining when the statute of limitations applies. v. o Validity of State Satute means that the case will be dismissed and the statute of limitations will have expired leaving the ∏ without the opportunity to re file o ∏ argues that by allowing the case to continue it is outcome determinative. (SCOTUS 1988) REA CASE:  What do we do with Forum Selection Clause in Federal Court?  Conflict of State Law on Forum Selection with (§ 1404 Transfer) o There is not necessarily a conflict here the Federal Rules are Silent on Forum Selection Clauses o Selection Clauses will not have dispositive weight but you consider it as one of the factors. Between State Rule and FRCP 3.  2 Part Analysis: o Does it pass the outcome determinative test?  Court determines that no! (Temporal Vantage ) • The difference in the rules would not encourage forum shopping . as long as it does not lead to forum shopping or outcome determination  Analysis of Rules Under Rules Enabling Act o Does the rule regulate something that is “arguably procedural” o If it is arguably procedureal. allowing leaving copies at the door as acceptable Service. (Scouts 1980) RDA Case  Conflict Between state law and FRCP 3 for determining when an action begins for tolling the statute of limitations. Hanna Part (II)  If a FRCP is arguably procedural then we are going to assume validity: • Validity comes from the Power of the REA  Even if the use of the FRCP would affect the outcome of the case. o Instead the federal procedural rule is for timing purposes internal to the FRCP o . or lead to an inequitable distribution of justice • The minor difference really doesn’t change the behavior of the plaintiff. Plummer (SCOTUS. does the rule abridge or modify substantive rights provided under state law?  Stewart Organization. Inc. Ricoh Corop. The (Supremacy Clause) makes it trump the state rule  Rules Enabling Act – the rules are a constitutionally valid grant of Article III Power to the courts to make rules (broad reading)  Modified Outcome Determinative Test: o Cannot be applied without reference to the twin Aims of Erie decision:  Will the promote Avoid Forum Shopping?  “ “ Lead to unequal administration of the laws o A federal rule is valid even if it affects the outcome of the case.

federal courts must apply the conflict-oflaws rules of the states in which they sit. Ricoh  FRCP v. State Rule o Always trumps state rule o See Byrd  Federal Statute v State Rule o Federal Staute trumps if (Supremacy Clause)  Statute Covers the Point in dispute.  Court holds that to promote uniform application of substantive law within a state. does this change implicate Erie • Forum Shopping • Providing equal admin of laws. Stentor Electric (SCOTUS. and  Statute is Valid exercise of Congressional Authority • Arguably Procedural • Necessary and Proper Clause  See Stewart v.o There is a happy co-existence No conflict and As a Result No ERIE ANALYSIS. and the states have not addressed the issue ♦ Deals primarily with Federal Question ♦ Interpret/fill gaps in federal statutes (Implied Remedy Doctrine of Cort v. Analyzing Eerie: The 5 Point Wax Program to Not Getting a C! Step 1: Is it an Erie Question? -Are there two rules Federal and State Step 2: What is the Federal Rule? What is the State Rule? Step 3: What kind of Rule is the Federal Rule? o Federal Common Law o FRCP o Statutory Procedural Rule? o Something That Comes out of the Federal Constitution? Step 4: Do they Conflict? Turns on interpreting rules on both sides Sometimes conflict depends on one of many interpretations.  York and Byrd The New Federal Common Law  Generally there is no Federal Common Law ♦ Separation of Powers Concern: power to make law lies with congress ♦ Federalism : Areas assigned to states for regulation and legislation:  Federal Courts are implicitly aurthorized to make some Common Law ♦ When Congress and the Constitution have spoken to the substantive rights.  This prohibits horizontal forum-shopping (as opposed to vertical). v. Stops the Federal common law practice of making choice of law rules in the federal court.  Klaxon Co. Armco (Rule not in direct conflict)  Judge Made v State Rule o Use the refined outcome test in Hanna. Step 5) Which Rule Applies?  Federal Constitution vs. 1941) RDA CASE  Choice of law question. Ash)  Three areas of substantive Federal Common Law: . o Does the use of different rules of affect the outcome  If it does. State Rule o Federal Rule wins if (Supremacy Clause) o Rule covers the case in dispute o Rules are considered a valid exercixe of Congressional Authority from the Rules Enabling Act (broad reading) o See Walker v.

Rule 8 Mechanics of Pleading: i) (a) Claims for Relief: The claim shall contain a short plain statement of the grounds for jurisdiction b short and plain statement of claim showing entitlement to relief c demand for judgment for the relief the pleader seeks. Federal Common Law leads to Uniformity. and tries to collect from Feds. or several different types may be demanded.) E. Rule 9: Special Matters F. US was going to be lose on the money twice (the stolen check and the re-issue)  Clearfield defended by saying US did not give timely notice. and this damaged their ability to stop payment to JC penny or the opportunity to investigate who chased the stolen check. Rule 8 only requires “a short and plain statement of the claim showing the pleader is entitled to relief” B. answer to a cross claim. D. Government (treasury serves as an actor). forged and offered to JC penny. Rule 1 Rules construed and administered to secure just. shall be made in writing.  Treasury Check stolen. Rule 3: Civil action commenced with filing of the complaint. ii) (b) Application to the court for an order shall be made by motion. who collects on check from clear-field trust. no other pleadings than the ones allowed except that the court may order a reply to an answer or a third party. The Modern Complaint: Dismissal on the Pleadings: FRCP A. federal interest in Uniformity trumps Erie Presumption: ♦ Pleading I. Clearfiled garuntee’s check. ii) 8(e)2 Claims made in the alternative are allowed (They can contradict original claim. ♦ Interstitial:  Where there are gaps ( as opposed to pre emptive common law making. • Problematic to have 50 different state standards governing the Federal Transactions  First Presumption in this Case is to adopt the state law  Erie seems to prmote such a view: promotes as little disparity  However. Variations on on the theme: . (1) Alternarive. Notice Pleading: Rule 8 creates notice pleading regime A. marks the beginning of the time requirements under the rules.Preservative:  Courts make rules to allow certain powers to run or be executed 2 Categories:  Where the Feds have exclusive Authority over an Area:  Admiralty  International Relations  Disputes between States  Military and National Security  Immigration  Where the Federal Government is an Actor (Commercial)  ♦ Pre-emptive:  Where there is a comprehensive federal scheme and fails to address each and every question that might come up. reply to a conutnerclaim. Forms of Motions i) (a) complaint and answer. Federal Common Law Rule  3rd Circuit Decides:  Authority to write Check is Constitutional  Rights duties and obligations should be governed by the Constitution as Well  Also. The question is in order to make the scheme work. where state rules may exist but are not appropriate)  Common in Broad Federa Statutes – Sherman Anti-Trust Act  EG: Making up a statute of limitations for a federal cause of action  Clearfield Trust v. 1943)  Arises out of Preservative Law Making. a State the Grounds therefore b Set forth relief or order sought c Requirement of writing is fulfilled if the motion is tated in a written notice of the hearing of the motion. unless made at hearing or trial. speedy and inexpensive determination of ever action B. Rule 7: Pleadings Allowed. Rule 10 Form of Pleadings II. N C. United States: (SCOTUS. ∆ tries to take advantage of State Laches Rule  2 Rival Rules Penn Law Laces vs.

v) Detail required is varied from court to court depending on the cause of action. G. d Most often granted for legal insufficiency not factual deficiency. Rule 12 (e) ii) ∆ moved for 12 (e ) motion for a more definite statement. (PR 1951) i) Pl.Give the system notice to be able to analyze the elements of a cause. (Because You can add facts but can’t change your legal theory). the motion is treated as one for Summary Judgement. Durning (Think About Papi and “DoDo Cow”) (2nd Cir) i) ∏ immigrant files complaint for disappearing bottles at customs. one of the necessary elements of such a claim iii) Court allows complaint to go forward. Hilton Hotels Int’l Inc. United Aircraft Corp. ∏ tires again but court dismisses with prejudice iv) Court of Appeals finds ∏ has under Rule 8a included a “short and plain statement of the facts” demonstrating entitlement to relief. Dioguardi v. 12C (judgement on the pleadings) b Limits the role of the judge (Summary Judgement) iii) Signals ability of the parties to prove the elements of their case. F. element is implied in the complaint (publication) iv) ∆ makes another motion to dismiss part of the complaint because of absolute privilege for statements made in labor board hearing v) Court allows this dismissal . ∏ left spaces that could later be filled with facts. d Elements Pleading: Notice to the court. ii) Government files a motion to dismiss on the ground that the complaint “fails to state facts sufficient to state a cause of action” 12b6 iii) Court dismisses complaint with leave to amend. Lodge 743 v. a Allows ∆ to frame a response b Instructs how to conduct discovery c What do I present at trial? ii) Allows Court to define the issues in the case: Element pleading has a signaling function. Purpose of pleading i) Provides notice to the ∆ and enough info to formulate a response – Notice Pleading. iv) Rule 12 e motions are disfavord because of liberal notice pleading standard of Rule 8(a) and because of liberal discovery rules. a “facts sufficient” are not necessary (some facts must be pleaded) b Source of law/legal theory also missing from this complaint c Court says all you need is a possibility that these fact cousl amount to a claim for legal relief under any legal theory. CASES: E. but only after ∏ have the opp for discovery. Fixing defective pleadings i) Dismissal without prejudice and leave to amend ii) Rule 12 (e) Motion for a more definite Statement. a Applies particularly to highly stylized and established common law cases (tort of negligence) b Buzzwords must be included (see Garcia) H. and ∏ responded that this would be equal to a dismissal a Informaion required was in ∆ possession b Needed to move forward to allow discovery. the court will usually allow a ∏ to go forward. a Jettison irrelevant issues (court – specific function) -12b6. iii) Court grants motion for a more definite statement. (D. iii) Rule Out Rule: Unless the complaint rules out any chance of ∏ winning. triggers motion for summary judgment under Rule 56. Garcia v.Conn 1962) i) Rule 8a.i) Notice to the ∆ : prep time – party oriented ii) Notice to the Court.usually the courts will try to allow the complaint to move forward (GARCIA and Dioguardi) c Courts will also allow leave to amend the complaint. ii) Rule 12 c – Judgment on the Pleadings a After the pleadings are closed. C. b If outside material is considered by the court. files a complaint for slander against the ∆ ii) ∆ moves for dismissal because complaint failed ot allege publication. Dismissal on the Pleadings: i) Rule 12(b)(b) Failure to state a claim on which relief can be granted a Matters outside the pleading are presented to the court. D. a Example Title VII of the Civil Rights Act: complaint may be dismissed if the ∆ only employes 10 people andd the statute applies to businesses with 15 people or more b Inconsistency rule? iv) Elements Rule: ∏ must say something about each element of claim. vi) Rule 15 a Allows the pleading to be amended. b Dismissal on the pleadings is rare.

v) Taylor v. Reply. save the court’s resources. iii) “Speaking Motions” motions to dismiss arising from issues outside the pleadings (pre-trial hearing to determine factual /legal issues in dispute) Affirmative Defenses: INGRAHAM. ∆ failed to plead statutory cap. save you the expense of preparing an answer. this is notice of the ∆ strategy to the ∏ c Rules for pleading for ∏ are open.∆ must behave specifically or else he waives certain defenses. v) 8 (d) effect of failure to deny a Averments are admitted if not denied b If there is no responsive pleading required they are considered denited c Rule 15 allows amendments is a safety valve to rule 8 (Courts have discretion of allowing full airing of issues for a fair trial) vi) Rule 8 (e) 2 permission to make arguments and state facts in the alternative even if you contradict yourself . Amendments I. not necessary to be pleaded. Answer A.S. Rule 8 i) 8 (b) Defenses and Forms of Denials ii) Must address Legal Theory of the complaint: a A party shall all defenses to each claim asserted b Rule of waiver for legal theories is lenient – difficult to conceive of an adverse party being surprised by a legal theory. ii) ∏ contends this is an affirmative defense that is waived by the ∆ when they did not fowarard them in a timely fashon eeither in the pleading or while at trial. TAYLOR. Motions: i) ∆ may file a motion rather than answer ii) Advantages of no need to admit or deny facts in the answer. 1987) i) Medical Malpractice judgment in favor of the ∏ the ∆ U. (Arguing in the alternative) C. iii) Must address factual allegations of the complaint: a You must admit or deny averments b Sepcificity is favored in the federal courts (not allowed to say I deny everything) c If a party has not enough to admit or dney . & GOMEZ D. d Not a negative pregnant – “An other matter constituting an avoidance or affirmative defense is a catch all. United States (5th Circuit. Ingraham v. ∆ has very specific constraints.a ∆ did not have to plead this defense in answer b No need to plead when it was obvious vi) ∆ is also entitled to rule 12 e (motion for a more definite statement) as to the words uttered and the publication of the words that were allegedly damaging. . General Denials of the entire complaint fare disfavored. Two options i) File a motion under 12(b).subject to consolidation & waiver requirement of rules 12 (g) and 12 (h) ii) File an answer ( You can always tack motions with your answer) B. iii) ∆ contends this cap is part of the cause of action. after mudgment moves for reduction in damages based on state law capping damage awards. United States: (9th Circuit. d Unfair surprise to the ∏ (1) Yes ∏ argue that they could have fashioned the case around other theories that were not dominated by the cap (2) ∏ prejudiced by not being aware of the defense e Court finds that based on this test the statutory cap on damage awards is an avoidance under Rule 8c and was waived when not pleaded. d Gotta meet the substance of the averments e Again. you have to say so and this counts as a denial. 1987) a Similar facts to Ingraham. iv) 8 © affirmative defenses: a 19 Affirmative Defenses that must be pleaded or waived b Defenses are legal issues: ∆ must affirmatively reaise defenses that do not flow logically from the complaint or they are waived. iv) Court develops 4 part test to determine if an issue is an affirmative defense which must be pleaded or waived: a Was the defense part of the cause of action as defined by law? (1) Unclear in this case b Which party has better access to the information? (1) Unclear c Is the defense disfavored or favored? (1) Disfavored defenses presumption that they need to be pleaed. Answer.

Intro i) Three Part Structure a Safety Valve for 7. 1980) a Trial court dismissed Π’s claim for wrongful discharge on the ground that ∆ was entitled to qualified immunity for acts done in good faith within the scope of his official duties. the limitation on damages is not an affirmative defense. c Since qualified immunity is a defense. Rule 15: Amended and Supplemental Pleadings: A. Moore v. Rule 15 (a) – Amendments – Courts must justify denial i) Applies to Amendment of pleading even after trial ii) Once as a matter of course before response or after with permission of the other parties or leave of the court. counter claim. a Also covers sorts of Amendment when you’ve omitted a claim. Cases: E. ∆ is presumed to want to contest the damage claim (2) Under this rule. judge can waive the waiver for failure to plead. 8 12 b Hands Judge Discretion c Judges have limited their own discretion (1) Attmpt to balance the strictness on the ∆ and the leniency on the ∏ B. v. e Π should not have to anticipate ∆ of qualified immunity in good faith. g Take home Lesson: If you are confronted with an 8C action that is statutory then you look at the statue. before embarking on the four-part Ingraham test. the action would have been brought against him. ( Not a great Argument) The whole point of the pleading system is asymmetry. but for a mistake governing the identity of the proper party. c The amendment changes the name of the party against whom the claim is asserted if (2) is satisfied and the amendment occurs within the period provided for service of summons (4(m)) (1) Party brough in by amendment must have received such notice of the institution of the action that the party will not be prejudiced in maintaing a defense on the merits (2) Party knew or should have known that. (3) This is to address statute of limitations problems. b Court notes nothing in the statutory text requires the Π to plead bad faith in order to state a claim for relief. (function over form) D. court could possibly extend time to answer the amendment. Moore (DC 1978) b . ∏ is the master of his claim. Rule 15 (c) Relation Back of Amendments i) An amendment of the pleading relates back to the date of the original pleading when: a Relation Back is permitted by the law that provides the statute of limitagions applicable to the action b Claim or defense asserted in he amended pleading arouse out of the same conduct. he must show he acted in good faith. (2) Very forgiving standard. Toledo (SCOTUS. c CA law had defined this statutory cap as an affirmative defense (see factor 1 in the four part test above) but court finds that rule 8d trumps this d Symmetrical argument: ∏ is not required to plead the amount of damages with specifics so ∆ should not have to be so specific.Court holds differently – cap was a part of the cause of action (1) Rule 8d excepts amount of damages averments from admitted if not denied rule. (This should have been the rule in Ingraham and Taylor) II. transaction or occurrence set forth in the original. and Π’s complaint failed to allege bad faith. d Question of access to information: Π can’t know what was in ∆’s mind (pragmatic Ingraham factor). vi) Gomez. burden of pleading rests with ∆ . a If the amendment aids the case on the merits b If the amendment will not prejudice the opposing side (1) With prejudice problem. court has discretion to allow amendment: Court will allow amendment in most cases because they want to put the best case forward. or affirmative defense: b Omission in Ingraham and Taylor is really one of the above and not an attempt to conform the pleadings to the evidence C. Rule 15 (b) Amendments to Conform to the Evidence – (Moore) i) Amendment of the pleadings to conform to evidence presented at trial ii) During the course of trial or after the verdict iii) Mutual consent to the amendment: a Express –open permission to try the matter b Implied/constructive consent: party does not object to the introduction of evidence at trial iv) If a party objects. look to the text of the statute first. cross claim. f When deciding allocation of pleading responsibility for causes of action defined by statute.

from range of claims. iv) ∆ object because statute of limitations has run. It is not unfair to allow ∆ to prove that he might not have actually manufactured the slide in the first place. the more ambiguous claims were for child support and maintenance and fees. Burden of Persuasion a. Responsibility for producing threshold of evidence to go forward. a ∆ argue there was no “mistake” as to the identity of the ∆ but rather they were unknown parties b Court holds such amendment is not correcting a “mistake” and denies the amendment of the complaint. 2. but…. and really governs relations back or contains a negative pregnant. ii) Proceeding had gone forward as if the mother had asked for custody herself. F. (2) Rule 15 © relation back? Named wrong party? Possibility if the time for service of process had not yet run. a An argument can be made that FRCP does not cover “unknown” party and the statute fills the vacuum b On the other hand. (8th Cir. ∏ files a complaint. only way for this to be avoided is relation back v) Rule 15 (3) Applies looking at 1 and 2 together they are mutually exclusive. vi) ∆ amendment to conform to the evidence is granted. prejudice or undue delay is presented by the party opposing Amendment should pass c Court finds no bad faith or undue delay d On the issue of prejudice (1) Court holds ∏ not really prejudice (2) Even if the amendment is allowed. iii) ∏ objects to the amendments under Rule 15b a claims he did not have notice these issues were in dispute b Was not given opportunity to be heard on these issues iv) Court finds implied consent to amend under 15 b a ∏ had timely notice that these issues were being litigated b ∏ offred unique evidence to the counterclaim c No implied consent for maintenance. Which were named “unnamed” in the complaint. ∆ moves for SJ saying that ∏ hasn’t met the burden of production (on the complaint alone) In response ∏ has to introduce evidence and signal to the court that he can prove complaint ∆ can or cannot answer the complaint. vi) Rule 15 (3) sets up a potential Erie Problem. More lenient than the burden for persuasion ii. ∏ unable to claim against the real mnfr. the ∏ still has an opportunity to contest the fact as to who made the slide at the side trial (3) Prejudice must be an “unfair” setback to a party’s case not just a setback. d. Requirement of a party to introduce minimum amount of evidence to warrant proceeding with that party’s case. but then moved to amend its pleading to deny after new evidence that the slide wasn’t theirs iii) Court granted separate trial to resolve manufacture of the slide iv) Court granted motion to Amend. Rule 15 C 3 can be read broadly. Beeck v. i. Wilson (CD IL. wife forgot to make any affirmative claims herself.Plea for Custody. minimum evidence to meet the standard of proof. Evidence must be sufficient to support a legal theory b. Worthington v. 1992) i) ∏ sued under federal law against 3 unknown police officers. there is constructive consent. Does the Illinois statute apply or does the FRCP apply? vii) Court finds that this is an FRCP in conflict with a state statue and that the FRCP controls. to maintenance. Aquaslide n Dive Corp. e Statute of Limitations Problem (1) Statute had run. 1977) i) ∏ sued ∆ for injuries sustained in using slide allegedly manufactured by ∆ ii) ∆ first admitted in its answer that it had manufactured the slide. and Pleading: 1. v) Because ∏ could reasonably expect to have noticed these issues were in dispute and offer evidence to contest them. ii) Later tries to change the name by amending to change the names of 2 of the officers. Production and Persuasion Are mostly for the ∏ but can shift. Any change made in pleadings that is allowed by amendment relates back to time when case started which was before the statute of limitations ran out (presumably) G. Burden of Production a. from child support to custody. Persuasion. iii) Rule 15 C 3 was filed within the 120 day grace period. c. Requirement of a party to convice the fact-finder that his evidence is to be sufficiently believable i) . (1) This argument invites circumvention by just naming anybody instead of “unknown” Burdens of Production. Burden comes into play at summary judgment and directed verdict phases (assuming all evidence produced is true (no need for persuasion) has the party introduced enough evidence to win? i. a Rule 15a provides leave to amend should be “Freely given when justice so requires b Unless evidence of “bad faith.

but the non-moving party is correct on the law (who will usually file a cross motion for summary judgment). To defeat a summary judgment motion. Analyzing Motions for Summary Judgment i. 2) Show that you are right on the law. • There is no material dispute on the facts. Summary Judgment (Rule 56) A. c. Rule 8c ∆ must affirmatively plead certain defenses.Comes into play at trial during trial to convince Who bears the burdens of production and persuasion are matters of state law in diversity suites. • Non-moving party has not created a genuine issue of material fact. First identify: • Who is making the motion? Non-moving party (party in whose light you look at facts favorably) b. d. • Non-moving party has created a genuine issue of material fact. . iii. b. 4) b. Introduction to Summary Judgement i) “Preview” of the full trial a Efficiency measure to dispose of cases that don’t need full trial b Never decides a question of fact – treats the facts in the light most favorable to the non moving party ii) When is SJ appropriate? a When there is no genuine issue of material fact? b When a party has failed to meet it’s burden of production. • There is no material dispute on facts. judgment motion 1) Show material issue of fact. he does not have the burden of production or persusion) (2) ∏ must submit materials to show he was prepared to prove what he claims or dispute facts introduced by ∆ c (c) Judge considers evidence and grants motion if there is no genuine issue of material and the moving party is entitled to judgement as a matter of law d (d) Partial SJ is possible e (e) Adverse party cannot rest on his pleading f (f) Judge has a lot of discretion to postpone resolution of SJ can delay ruling to allow for discovery. Beyond a reasonable doubt. Burden of Pleading: a. on the correct view of the law. 3. • ii. (1) With or without supporting affidavits (∆ need not do more than point to deficiencies in ∏ pleading. and the non-moving party has met its burden of production. 3) Zero in on burden and determine if other side has met their burden. Burden of Production Substantiality of Claims – Summary Judgment and JMOL: I. Clear and Convincing iii. and the moving party has. • Genuine: supported by competent evidence. There are 3 standards: i. court must find: • Moving party has not met burden of production. ii. and the moving party is not. Notes Strategies for disputing summary jud. b (b) ∆ may move for SJ at any time. • Material: Relevant to the question of law. iii) Rule 56 Summary Judgment: a (a) ∏ may move for sJ 20 days after commencement. and the moving party is correct on the law. Some rules require parties to plead issues in certain circumstances i. Who has the burden of production on each issue? To succeed on a motion for summary judgment. Preponderance ii. Rule 8a ∏ must plead sufficient grounds for his claim. court must find: • Non-moving party has not met its burden of production on an issue (if the non-moving party has it). Focus on the opposition to the sum. and you meet your burdens.

Wabash R Co (Scotus 1962) a Court dismissed case sua sponte for failure to prsecute. a Rule 56 (c ) – “affidavits if any” b Rule 56 (b) – “with or without affidavits “language” D. . 1953) i) ∏ rode on ∆ RR on a free pass which by accepting. which would be granted). Voluntary Dismissal and Default A. III. ii) Court puts gloss on this waiver of liability. Judgement as a Matter of Law (Directed Verdict/JNOV/Motion for a New Trial) A. Catrett (SCOTUS 1986) i) ∆ moves for SJ on grounds ∏ has failed to meet burden of production ii) ∏ submits three affidavits. iii) Messenger v. claiming ∆ is required to put in evidence suggesting no genuine issue of material fact (motion “made and supported”). Anderson v. C. SJ motion is granted. is there a genuine issue of material fact? • If no. judge must bear in mind the “actual quantum and quality of proof’ necessary to prove libel. Determine who is correct on the question of law: • If moving party. who does nto have the burden of production. ii) Unles the court provies otherwise dismissal is an adjudication on merits. Rule 41 (b) Failure to Prosecute i) IF ∏ fails to prosecute its claim. SJ motion is granted. it still desen’t constitute willful or wantonly no genuine issue of material fact v) Court grants motion for SJ. (2) When considering whether there is a genuine issue of material fact. 1956) in which court held standard for determining dismissal is lack of due diligence on the ∏’s part. Determine if the non-moving party has met burden of production: • If yes. and grants ∆’s iii) ∏ appeals. beyond the mere pleadings. holding that ∆ is till responsible for injuries from willful and wanton conduct. B&O Railroad (S. Rule 42 (a)(2) – Voluntary Dismissal with Court’s Permission i) ∏ may voluntarily dismiss his action before adverse party files an answer or makes a motion. expet if dismissed more than once. then the party opposing must come forward / w evidentiary materials. is not required to submit additional evidence. the judge must view the evidence through the prism of the substantive evidentiary standard (1) Both summary judgment and directed verdict inquiries. II. U. judge decides question of law.D. dismissal is valid. (Scotus 1986) i) Question: How much evidence is reqired to meet the burden of production and survive the motion for SJ? a In this case.c. (SCOTUS. ii. Order of analysis: i. not considerations of ∆ iv) Link v. but court holds this does not meet burden. Celotex Corp. • If non-moving party. iv) If the moving party meets his BO Production. Liberty Lobby.WV. Inc. and their judgement cannot be reviewed except as provided by common Law B. Rule 41 (a): Voluntary Dismissal i) ∏ may voluntarily dismiss his action before and answer or motion ii) May voluntarily dismiss his action by agreement of the parties iii) Dismissal is without Prejudice the First Time B. case proceeds to trial for fact-finder to resolve dispute. alleging that even if the ∏ facts were accepted astrue she cannot establish ∆ acted willfully and wantonly no genuine issue of material fact iv) ∆ moves for SJ – evn if Alderman’s claims about rails were true. ii) ∏ may voluntarily dismiss his action by agreement of the parties.S. b Court held such a dismissal is valid without affording notice of such intention to the ∏ or providing an adversary hearing c Even if it is the ∏ cousel’s falut. because the ∏ has responsibility to get a non retarded lawyer. the evidentiary standard for libel is “clear and convicing evidenc” that “∆ acted with actual malice” b Court holds that in a ruling on a motion for SJ. ∆ may move for involuntary dismissal. • If no. she waived ∆ liability for injury while rideing. Control of Juries: i) Seventh Amendment provides for a jury trial in all civil actions. Alderman v. C. although the evidence need not be produced in a form that would be admissible at trial v) Court finds ∆ . iii) Dismissal is without prejudice. SJ motioned denied (although this party is likely to have filed a cross motion for SJ. v. Determine if there is a genuine issue of material fact: • If yes. iii) ∆ moves sor SJ.

no need JML. preserves jury verdict on appeal. the MO Supreme Court granted a JNOV motion. The courts are really confused. f Identical analysis as a motion for summary judgement: iv) Rule 59 New Trials: a A party may move for a new trial on all or party of the issues for “any of the reasons for which new trial on all or party of the issues for “any of the reasons for which new trials have been granted in actions at law in the courts the United States” (common law history incorporated into Rule). a form of wrecklessness. (4) JAML is granted after verdict.a Applies to Judge trying the case in District Court b Applies to Appeals court reviewing a decision.  Establishes a federal standard is jury-deferential standard –  Lavendur v. the error must have a possible effect on the outcome. Court reverses JNOV. Denman v. c Motion must be made within 10 days after etner of judgment. d. and then you have case law in ohio? Which one will you follow? The question is still up Note 3 1050. or may rule for a new trial under rule 59 (The motions are usually joined together.) (1) Motion for JAML (2) Courts will rearely grant a motion for JAML before jury returns verdict. 1946) – Scintilla of evidence case i. . A more exacting standard for JAML gives judge more authority to find that evidence is don’t need much to let the case go to the Jury. Kurn applies a Federal Standard as JMOL before rule 50 a very jury deferential standard scintilla standard. Lavendur is at odds with Denman. ii. b Grounds justifying for ordering a new trial: (1) Prejudicial (2) Jury misconduct. Appears to make it more likely than not that the ∆ is responsible for the accident. v. • Runs against Lavender v. d Court may also order a new trial on its own initiative. iv. person on whom the burden of production is will lose. ∆ invoked state version of Rule 50 – judgment as a matter of law – has to be before the jury goes out. Switchman died in rail yard – 2 different versions of how it happened. allow the verdict to stand e Party may renew Jaml after return. where the court requires more for the case to go to the jury  The trend has flipped lately: Feds don’t really apply the scintilla standard of Lavendar and the State Courts have gone back  Fed Court sitting on state law case: You have case law from Fed Courts in Fed Question and Diversity. finding that Π had introduced enough evidence that a “reasonable jury” could have found for the Π. Kurns scintilla Standard We have evidence of speeding. Trial court found for Π. e Rule 61 Harmless Error Rule: (1) No error that is not prejudicial is grounds for a new trial. Lavender v. Evidence on both sides sparse and evenly matched When evidence is evenly matched. (3) Verdict against the great weight of the evidence (4) Excessive verdict. Spain (Sunday Drive of Death)      Tort action for injuries in car crash with no witnesses. arguing that “all reasonable minds” agree that verdict for Π involved unreasonable speculation and conjecture.  A measure of speculation and conjecture is part of every jury verdict – evidence at equipoise for both stories. Kurn (SCOTUS. (3) If jury rules the judge thinks it should. ii) 3 ways for judge to take case from jury a Directed Verdict b Motion for a New Trial c JNOV iii) Rule 50 JAML a Party may move for Jaml at the close of the case b No legally sufficient evidence for reasonable jury to find for that party on that issue c Before submission to the jury.  Only in the “complete absence of probative facts to support the conclusion” should JNOV be granted. iii. (2) To be prejudciaial. d (b) Options for judge – can grant new trial direct the verdict.

a key element of his defense. The fault here is in the evidence of causation at the moment of the collision.  Court takes on the role of the jury by determining that there is no way the ∏ can win taking on the role of the jury (it discounts the jury’s only witness) • Perhaps the reasoning her eis more suited for a motion for a new trial under rule 59. there is a question as to whether to make a Rule 59 New Trials:     Discovery and Pre Trial Management: Discovery Reform: I.  The fact that something is a defense for pleading purposes does not mean that the ∆ has the burden of persuasion. Pro i) Less discovery – more streamline ii) Less litigation over discovery iii) Fosters cooperation – suspends the adversary system prevents trials from turning on strategic factors iv) More specific pleadings makes things run more efficiently . Sole witness for the ∏ was overbalanced by 3 by the ∏ Court finds no dispute in the facts: JAML (directed verdict) for ∆ The court considers two views on weighing of the evidence • View the non moving side’s evidence by itself • Compare non-moving side’s evidence with that of moving side. Chamberlain: (SCOTUS 1933) Pl. Goals A. Because he fails to meet his burden of production he gets neither directed verdict. III. viii. D. Sues for payment on consulting service breach of contract.  Court finds that ∆ did not meet burden of production for his affirmative defsnes. vi. New rules triggers discovery obligation on the opposing party to disclose matters alleged with “particularity” IV. the only opportunity that he has is an affirmative defense of material misrep. not withstanding his failure to appear. Penn RR v. Defense of Material Misrepresentation which would be a defense for non payment. nor would he get Summary Judgment. in which the standard for review is against the great weight of the evidence” Different from “no reasonable jury can find” • Bottom Line JAML: You must meet the burden of Production: It’s a retread of Summary Judgement but instead of paper evidence you must have actual evidence. an Attorney. Failed to introduce evidence of his reliance on ∏ misrepresentation. Prevents litigation from devolving into a game won by the party with more resources or superior access to information. Discovery – Process by which the parties obtain information for use in litigation or in anticipation of litigation. Gets rid of unimportant Issues. sues for wrongful death action against RR.  Even if the jury believed ∏ made misrep. B. Kanner (7th Cir. Under the old regime. Ancient vs. Pro’s and Con’s of Old v New A.  Kanner had the burden of production on the defense which he did not meet. Defends by false resume and failing to report conflict of interest.  Judment for Hartwig on Directed Verdict (JAML)  Kanner claims to have raised an issue of fact on pleadings and that the jury is entitled to discount harwigs evidence. B.  Does not deny that he didn’t pay. ∆ gave jury nothing on which to base a favorable verdict  To late to offer new evidence at the appellate level.. Modern Discovery: A. 1990)  Hartwig Counsulting sues Kanner.  Depending on how you slice it there may not be enough to meet the scintilla standard. Limits or Eliminates the Elements of Surprise C. vii. Hartwig v. II. Facilitates the search for the truth by ensuring both sides are fully prepared to advocate for their position. parties had the burden of requesting discovery. claiming that RR’s negligence led to the death. Burden of Pleading doesen’t necessarily square into the Burden of Persuasion. Three situations for JAML:  Sparse and Evenly matched?  Evidence is evenly matched ?  Incredibly lopsided? If number 3 occurs.

Scope: A. iii) Rule 26(b)(2). or impose and undue burden on a party. 26(c ) Protective Orders. When 2 docs denied membership. data. C. b Party has already had ample opportunity for discovery but has not done it. V. C. ii) Copie/descriptions of documents. 26(b)(1) i) Don’t need to be competent/admissible evidence to be discoverable ii) Can lead to discovery of further admissible evidence. c Cost of discovery outweights its benefits. Methods to Discover Additional Material A. and other tangible things. Maresse v. E. Disclosure requires atty’s to use judgment to determine extent of disclosure. iii) Put’s atty in the position of undermining client’s position. B. reports.. Discovery scedulting conference under Rule 26(f) D. a Posner says that there is a first amendment interest.Discretionary grounds for court to limit discovery: a Unreasonably cumulative or duplicative. outright granting or denial of orders is not necessary. 1984) Rule: A court should use its discretionary power to change the sequence of discovery in order to balance the interest of the parties. vi) Identity of witnesses. i) Federal Anti-Trust Suit against the society of Orthopedic Surgeons. VI. subjugating client’s rights to those of the system. ii) Parties also must make plans for mandatory disclosures above (which are due 10 days later). harass. iii) Posner does not claim that it is a first amendment violation to protect to protect peer evaluations. Rule 26 Required Disclosure. Cons of the Broad rules: i) Rises the costs of litigation ii) Incentive for law firms to engage in extended discovery (billable hours). (a)(3)(C) viii) Under Rule 26(a). B. ii) Inconsistent with duty of Atty’s to protect the interests of their client.B. (a)(3)(A) vii) Identity of evidence/exhibits to be presented at trial. considering these factors: (1) Amount in controvery (2) Relative Resources of the Parties (3) Importance of issues at stake (4) Importance of discovery in resolving these opening a file you undermine people’s ability to be able to say what is on their minds. Rules for discovering material from third parties are less liberal and less mandatory (See discussion of Rule 45). Con (ah yes Justice Scalia) i) Not compatible with the adversary system. American Academy of Orthopaedic Surgeons (7 th Cir. iii) Parties with more resources are favored iv) Does not alleviate strategic behavior of parties D. Discovery Limits: i) Privilege material Rule 26(b)(5)). F. opinions of experts expected to testify at trial (a)(2) a Very detailed rules in this section b Rules for non-tstifying experts are less stringent. courts can opts can opt out of the required spontaneous disclosure regime (about half halfhave done so). iv) Insurance agreements v) Identity. less burdensome and expensive. Broad for parties involved in the lawsuit. embarrass. Rule 26 (c ) Discretionary grounds for court to issue protective orders: i) Court has authority to limit to limit discovery that would annoy. ii) Work Product Rule (26(b)(3) and (4)). Discovery scheduling conference under Rule 26 (f) i) Parties are required to meet to discuss claims and defenses. iii) Computations of damages claims. iii) Parties also must develop a proposed discovery plan. ii) Court has authority to tailor protective orders under 26 © to fit the situation. Mandatory spontaneous disclosure under Rule 26 (a): i) Identifying information for people likely to have discoverable information. oppress. they wanted to use discovery to get letters to prove that there was collusion ii) Chill. Standard for discoverable material: any matter that is not priviledged relevant to the pending subject Matter. . or obtainable from some other source that is more convenient.

iv) Posner: In structuring discovery judes have the discretion this is the middle ground between granting and denying the request. Rule 26 (e) – Supplementation of Disclosures and Responses. A. Rule 26(d) – Timing and Sequence of Discovery A. ii) Long distance witnesses iii) Answers to written questions taken orally. Discovery Mechanisms: I. 10 depositions are the default max i) Parties can agree out of this limit ii) Court can order additional depositions. I. Unless the change has been otherwise made known ot the opponent. Unless instructed by the court otherwise. but must answer ii) Exceptions to answering: a Harrasing or oppression of the deponent b Privilege c (to preserve evidentiary objections to trial) F. C. B. II. Recording of the deposition. Rule 31 – Written Depositions i) Similar rules to Rule 30. and a protective order prohibiting ∆’s from publishing andy information. III. Objections during depositions: i) Parties can reserve objections during deposition. D. a In Camera Review b 26(d) control the sequence of disclosure: (smoke blowing) not really practicable. i) Parties are under a duty to to be deposed only required notice ii) Non –parties need subpoena’s under Rule 45. iv) Court holds that ther lower court had the authority under the doctrine of protective orders to restrict the use of this information. H. iv) See Rule 32 on the Use of depositions in Court proceedings. iii) ∆ appealed citing a First Amendment interest in publishing. ii) Court issued order for ∏ to produce information on donors and members of the organization. Rule 30 – Oral Depositions A. i) ∏ brought and action for defamation against ∆ newspaper. Rule 36 Physical and Mental Exams i) These discovery requests are rarely granted as they are intrusive . Rule 34: Document Production: i) Without Rule 45 Subpoena in theory Unless it’s a non party in which you need a 45 ii) Apples to any tangible or any property. c Redaction d Limiting review of material to ∏’s files only G. Rule 33 Intergatories: i) Only to parties not to witnesses or non parties ii) Reasonable duty to find out information/investigation iii) Generally limited to 25. Obtained by discovery does not necessarily offend the 1st Amendment. G. A party may not begin discovery process until after 26 (f) conference. Any person. v) Balance of First Amendment right with the right of parties to litigate effectively without fear of release orders. Seatle Times v. Corporations may be deposed i) Gotta send someone with knowledge of the issue ii) No duty of investigation is required (unlike interrogatories) iii) Careful with corporations as Interogatories may be a more appropriate first step. iii) Subpoena duces tectum – requires a deponent to bring document or material with them to the deposition. E. 1984) Rule: A protective order that restricts the dissemination of info. i) Recordation of every deposition is unnecessary ii) Must be transcribed to be admissible at trial. methods may be used in any sequence. B. Continuous duty to supplement or correct materials B. party or witness may be deposed. iv) There is a reasonable duty of Investigation. Rhinehart (SCOTUS.

v) ∏ sought through interrogatories witness statements. and prepared summaries prepared by the ∏ attorney. Rule 36 Requests for Admission i) Not really a discovery device. Taylor (SCOTUS 1947) iv) 5/9 people survived 1 ∏ wants to go to court sends s39 interrogatories. iii) Hickman v. i) Rules of Evidece 501 (Formal Privileges) a Atty – Client (1) Must be acting in legal advisor capacity (2) If a third party is present. (3) Client can close the mouth of the attorney. not what they are saying but how they are saying it b More flexible – allows for surprise c You can get parties or non parties ii) Interrogatories a Cheaper b Imposes a duty of investiagion c Only for parties. material is not covered by the attorney client privilege. Person asserting a privilege has the burden to prove why he is entitled C. Trammel) c Other Privileges (1) Priest – Penitent (2) Doctor – Patient (3) Fifth Amendment against self incrimination (4) Parent – Child d Privileges to prmot free and open communication. not the party’s attorney. b Spousal Privilege (1) Private communications between spouses (2) Cannot force spouse to testify against one another. Privilege outweighs relevance standard B. II. iii) Examination of non-parties is especially difficult to get. (3) Cannot “close the mouth” of a spouse (Trammel v. helps avoid the need for discovery. (1) Qualified Work Privilege (i) Documents and things (ii) Adverse Party cannot have acess unless there is an absolute need demonstrated by the party. vi) Court: a First.ii) Need the intervention of the court a Unlike the entire discovery process which is generally administered as between the parties. But not limited to. as this was a communication was by a third party to the atty. (last resort) (2) Absolute Work Privilege . under Rule 33 interogatories must be directed at a party. including for or by its atty. privilege is wiaved. interview transcripts. Work Product Rule: A. ii) Admissions are only good for that litigation (Sorry no issue preclusion) K. b Second. Privileges: I. things. General Strategia i) Discovery: a Observe the witness. strategies of a party to the case. J. entititesprepared by and for the other party. ii) Absolute priviledge. Created by the courts and codified into rule 26. vii) Can a party inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation? a Court is concerned with allowing an opponent to “borrow wits” from his adversary (Jackson’s Concurrence) b Court creates a two-tiered privilege for work product.Under no circumstances can there be a disclosure that reveals mental impressions thoughts. (1) Narrowly construed (2) Balanced against full disclosure principle. Generally Rule 26(b)(5)) A. Formal Priv. because they are costly to the truth. i) Qualifed privilege sometimes you can obtain documents.

not rely on opponents depositions 3. Retained by opponent in anticipation of litigation . Attorney’s would stop writing things down. or legal theories of on an attorney or other representative. Substantial need and undue hardship. the court shall prtect against disclosure of the mental impressions. (Scotus. it is “fait accompli” product is protected. ix) Upjohn v. B. (ii) 26(b)(4)(B) applies to experts. it is protected by the work prduct rule.S. ∏ atty can depose witness themselves. (3) Does not block independent discovery of info held (i) Only blocks communication with atty (ii) Does not provide blanket protection (iii) IRS is free to interview the same employees d Work Product Rule: (1) Question as to how far the anticipation of litigation goes (2) Present case litigation will arise out of circumstances. II. “documents and other things” 2. Lists other information that must be disclosed. opinions. ∏ attorney can depose those who spoke with attorney. candid communication between clients. 26(b)(3) & 26 (b) 4(B) a Codification of Hickman Privilege (1) Qualified privilege (i) Party may obtain discovery of documents and tangible things otherwise discoverable under (b)(1) (scope) and prepared in anticipation of litigation or for tiral by or for another party or by or for that party’s representative (including another party’s attorney…) only upon a showing that the party seeking discovery has substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent by other means. Experts: I. (ii) Pay attention 1. C. conclusions. U.taking the work of opposing attorney and not paying for them. so it must apply to all acting in a legal capacity. Aldman) (3) However. (must be because of actual or impending litigation). (2) Absolute Privilege: (i) In ordering discovery of such materials. Prepared by or for another party or by or for that pary’s rep 4. x) Scope of “in anticipation of Litigation” under Rule 26(b)(3): Core of –Product Rule a Fifth Circuit: (1) Only material prepared exclusively or primarily for litigation (2) Strict application of privilege b Second Circuit: (1) “Because of” test – If the possibility of litigation is one of the reasons for preparing a document. (v) ∏ knew the identity of the witnesses and could easily have deposed them. D.(i) To the extent a document contains mental impressions or plans of an attorney. this material is not discoverable. documents prepared in the ordinary course of business are not protected. (2) Privilege is meant to encourage free and open communication. (2) Focuses on split in the language of the Rule: “in anticipation of litigation” or “for trial” (US v. Required under spontaneous disclosure provisions. (iv) The work product rule is a common law creation in Hickman. Experts who Testify: 26(a)(2)) A. prepared in anticipation of litigation or for trial (Aldman) 3. 2. 26 (b)(4)(A) – Parties may depose testifying experts. b Here the IRS sought discovery of interview conducted by corporate counsel and the counse’s notes and memos c Upjohn invoked atty –client privilege and work product rule (1) Privilege applies beyond a corp “control group” (officers and agents) to lower level guys. Report prepared and signed by the expert is required. 1. no showing of necessity viii)Rules 26 (a)(2). Protects against exploitation. (ii) This material is at the core of trial prep (iii) Threat of Chill on prep efforts: 1. Non-Testifying Experts A. 1981) a Addresses both attorney-client privilege and work party product rule.

C. not particularly useful. WIs. B.Facts or opinions held by a non-testtifying expert retained in anticipation of litigation may be discovred ( trhough depositions or interrogatories) only upon showing of exceptional circumstances or need. Court finds this expert to be a non-testifying expert retained by the ∏ in anticipation of litigation subject to Rule 26(b)(4)(B). Rule 45 (b) Service Rules: A. ∆ sought to discoer the identity of this expert under Rule 26(b1) “over any …. Protection Under Discovery Rules: A. Rule 45 (a)(3) – Attorneys can issue subpoenas III. 45 (a)(2) – Blanget grant of authority to subpoena 3 rd parties A. 1) how served similar to service of summons B. B. Limits on discovery 26(b)2 i) Unreasonably cumulative or duplicative ii) Obtainable from more convenient less burdensome source iii) Party has alredy had ample opportunity for discovery. Outside the Relevant Scope 26b1 is too broad. i) . so discovery request is denied. D. Rule 45(c) Protection of Subpoena ‘ed partries: A. and in camera review. ∆ has made no showing of “exceptional circumstances” to justify discovery of this ino.S. Protective Orders under Rule 26(c ) i) Embarrassment. ii) Question of whether a party may discover an experts’ report under this provision (courts disagree) but can depose him if there is a need. B. IV. W.D. 3 step analysis: i) Was it validly issued per 45 (A) ii) Validly Served per (45 (b) iii) Quashed or modified under 45 (c) B.not privileged” C. (1) General expert: is an ordinary 3rd party under 45(c) (3) (B) (2) Expert observer: ordinary 3rd party (Perry) (3) In house expert: subject to work party rule 26(b)(3). Issued from court in district where depo will be held. annoyance. iv) Cost outweighs the benefit. ii) Work Product Privilege under Rule 26(b)3 iii) Expert protections under Rule 26(b)4 iv) Numerical limits on depositions and interrogatories as per (30 and 33). a Protective because paid for by the opposing party b Msut pay amount to obtain reasonable fee and also share the costs of experts. i) Trial – issued from court in which trial will be held. 2) where: i) Anywhere within the distict of issue. Darley & Co. Can an expert be classified as an expert retined by the ∏ in anticipation of litigation or as an expert independent observer B. (E. Subpoena for appearance at trial or depo. Not retained by opponent in anticipation of litigation: a Retained but not in anticipation of litigation (1) Is the party freely discoverable as an ordinary witness? b Neither retained nor consulted. 45(c)(3)(A). ii) Depo. ii) Reasons a 3A1 Fails to allow reasonable time for compliance b 3A2 Travels too far more than 100 miles of home or business place of person receiving the service c 3A4 Subjects a person to undue burden d 3 a 3 Requires disclosure of privileged material (1) This is where we’ll see redaction.Rule 26(b) (4)(B). Special Protections for 3rd parties on where they can be called to testify and the extent they can be expected to produce info or evidence II.Quashing and Modifying Subpoenas i) Court is not limited to granting or quashing subpoena – can modify. 1971) A. ii) 100 miles from place of depo iii) piggy back provision applies on state law regarding service of subpoenas iv) dictated by federal staute. Subpoena Rule 45: I. III. oppression undue burden or expense. Perry v. IV.

ii) Rule 45(c)(2)(B). Document Production under Rule 45: i) Rule 45(a)(1)(C) Subpoena duces tecum (requires witness to bring any relevant documents under their control). the court may order appearance or production.mechnasim for challenging subpoena for document for document production or to permit inspection. 45 (c)(3)(B) Quashing or Modifying Subpeonas: i) More reasons for quashing or modifying: a Requires disclosure of trade secret or other confidential material. iii) Rule 45 (c) 2(A) Person need not appear with documents or at place of inspection (allows more flexibility – 100 mile travel provisions.) . b Requires disclosure of unretained experts opinion or info not describing specific events in dispute (1) More appropriate to hire them than subpoena them c More than 100 miles of travel for the subpoened parties ii) Under (B). D. if the party in whose behalf the subpoena issues shows a substantial need for this information and assures that the person subpoenaed will be reasonably compensated.C.