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Intro to Civ. Pro. (Rules: Formalism v. Realism) Torres v.

Oakland Scavenger-suit w/multiple plaintiffs, Torres was left off the list and was not able to be party to the suit, went to Supreme Court. Opinions: Majority, J. Marshall: Torres should be thrown from the case, reasoning by looking at procedural rules, saying rules should be followed to provide stability/predictability, avoid arbitrariness & guarantee equal treatment; rule can serve as shield for judge to make unpopular ruling Concurring, J. Scalia: Formalistic; looks at procedural rules and says need to be followed, rules are NOT to be liberally construed. *Formalism: judges interpret what law says not what it should say bc that violates separation of powers; determine plain and original meaning of laws apart from normative components. Dissenting, J. Brennan: Realistic approach; rules not to be read so narrowly, bc then it turns into a game of finding a better lawyer who remembers every rule. Says if rules are to be liberally construed then majority opinion is wrong. *Realism: judges/courts MAKE law, law is indeterminate; rulings vary with what judge ate for breakfast that morning; law is concerned w/real world outcomes of particular cases (Policy) Rules vs. Standards: Rules are good: Scalia article, rules are predictable, clear, consistent application, provide legitimacy through uniformity Rule are bad: rules give less discretion, so many exceptions that rules become useless, some rules are so formalistic and antiquated; sometimes rule is over/under inclusive & doesnt lead to justice in individual cases Standards are good: allow for flexibility; allow for thinking outside the box to reach limits of standards & more readily allow exceptions

Section 1: Constitutional Limits on Judicial Power

A. Due Process reqs: Pers ju, Notice, Opp to be Heard
i. PERSONAL JURISDICTION (1. Long Arm stat in state court/Const reqmnts in fed crt) 2. Shoe: Spec/gen & FPSJ, 3. Notice reqs satisfied? 4. Opp to heard?) a. where in the US can you sue? (cons & stat considerations); pers ju is about fairness of going to crt in that state (is there enough contact to go to crt in that state) theres nothing about which cry (st/fed) in that state b. Pennoyer v. Neff: (Neff sued by a lawyer for $ in OR state court, no show, lawyer got $ & some land Neff inherited & sold to Pennoyer) Neff takes Penn to OR federal, argues no notice! Sup Ct. decided NO JU bc: 1) tech defect in affidavit of notice 2) lower ct no JU bc prop bought after 1st case decision was made

c. Pennoyer: determine Pers. JU by physical presence of nonresident or his prop in the state **requirements for pers ju depend on type of suit (3 types): i. in personam (person): served personally AND in forum state ii. in rem (land in state & suit abt land): prop thats subject of suit is in state boundaries, so subject to state law *Constructive notice allowed iii. quasi-in rem: at Ps request, state seize Ds prop in state to satisfy any future judgment, even if prop unrelated to Ps claim d. Exceptions stated in Sup Ct. opinion-state courts use own proceedings for: status bw citizen/non res (ex. divorce); consent; appointing agent for non residents entering into part./assoc. ; doing business e. Penn pros (easy to apply (formalistic), predictability of outcomes) v. cons (unexpected JU rulings (ex. airplanes), corps (where present?)) f. Milliken v. Meyer: domicile sufficient basis for JU (**general ju) BUT ALSO need to give notice that is reasonably calculated to give actual notice and opportunity to be heard. i. **General ju: every US citizen and corp entity has at least 1 state where they an be hailed into court about anything. For ppl: where person is considered domiciled. Gen ju allowed bc you enjoy benefits/protections of that state. g. Compare Penn and Mill: Penn-must be physically there to be brought to crt; Mill (to not overrule Penn): Penn meant to say domicile was enough, presence is label applied after crt says due process was met h. Intl Shoe Co. v Wash: Shoe argue Wash had no JU, lower crts said yes JU; quasi in rem & attach property, Wash only gets value of shoes, but wants more; court int. Due Process clause: i. Shoe test for in personam (no overrule Penn just change from presence necessary to not, use Shoe when not present): minimum or sufficient contacts w/state (specific or gen-based on quality and nature of those contacts) and maintenance of suit must not offend traditional notions of fair play and substantial justice (ju needs to be reasonable & just)*factors: Asahi i. 2 ways to test for minimum contacts: i. General: Ds contacts w/state are so continuous & systematic/substantial that it would be reasonable for there to be pers ju over D for any kind of lawsuit, even a lawsuit that arose elsewhere (takin care of business every day) ii. Specific: lawsuit arose out of Ds contacts w/the state (cause of action related to contacts w/the state (use Simard article tests to help analyze)) j. Shaffer v. Haitner: physical presence of prop not necessarily sufficient w/out connection to the case. Shoe test for JU now use for all cases where D not present even if land is present i. In rem: JU over prop to declare ownership/interests in prop w/ respect to world. Subject matter is prop itself (ex. probate) under

k. Shoe test for pers JU part 1: Defining Contacts

Shoe: consider D contacts w/state based on ownership of prop (likely JU in most cases) ii. Quasi in rem i. Type I-related: claim relates to rights/obligations arising out of a nonres ownership of local prop (ex. P injured on Ds prop) under Shoe: consider D contacts w/state based on ownership of prop (likely JU in most cases) ii. Type II-unrelated: JU over prop to provide remedy in unrelated action (ex. live in FL, never been to CA but have prop there, car acc w/ CA res who attaches CA prop to sue in CA) under Shoe: consider if case arises out of D contacts w/ state, if not look for substantial contacts.

i. General and specific ju continuum: more contacts you have, less related they have to be to est ju (likely general); more related the contacts, the fewer you need to have (specific) ii. (general in personam personal ju-(consider 3 sometimes 4 factors to determine if takin c/o bus evry day; CoA no need arise from contacts iii. (specific in personam personal ju-4 tests) *after each of 4 min contacts tests must also analyze whether case arises out of the contacts i. Simard article: is contact prximate cause of claim?, contact provide substantive relevance of one of elements of claim?, but for would Ps inj have occurred w/o Ds contact?, continuum iv. After contacts analysis, DONT FORGET PART 2 of Shoe: FAIRNESS l. Defining continuous and systematic contacts for general in personam ju): purpose of gen: always a place suit can be brought); pick facts to establish if contact w/forum state substantial, continuous and systematic i. Factors: i. Domicile (Milliken v. Meyer)-wheres license from? Where family? Where grew up? Where belongings? Where registered to vote? Where pay taxes? Future living? ii. Principle Place of Business/Headquarters (Perkins) iii. Place of Incorporation iv. High volume sales without physical presence (sometimes) (Helicopteros) m. Defining min contacts for specific in personum ju (t.1: purposeful availment) McGee-(expansion of JU) D purposefully avails itself of the privilege of conducting activities w/i forum state-JU exists; Hanson v. Denkla- (set outer limits for Due Process) Ds contact w/state began by a unilateral act by P and D didnt have other contacts w/state related to suitNO JU; WWVW v. Woodson: alleging product defect but sue regional distributor & retailer bc want OR state ct; Pavlovich/Calder

i. Purposeful availment: focus extent to which D directs activities to (or purposefully avails itself of privilege of conducting business/activities within) the forum state a. D directed/targeted activities to forum state: Calder effects test: 1) the Ds intentional tortious actions 2) are expressly aimed at the forum state and 3)cause harm to the P in the forum state (the effects) of which D knows is likely to be suffered b. Contacts must be reasonably calculated to reach state; not enough for contact to be foreseeable/likely. D must reasonably anticipate being haled into crt. of that state (use stream of commerce tests?) c. Casual isolated unilateral conduct not enough (Denkla-P unilateral move); Single act by D may be sufficient if deliberate (McGee) n. Defining min contacts for specific in personum ju-t.2: stream of commerce): Asahi v. Sup Ct.: Court unanimous decision no Pers. Ju but disagree why: Min contacts: disagree on purposeful avail but FP&SJ: all agree not fair (context: international case, burden on D is unreasonable (D from China); foreign st int not high. Int policy and diplomacy is considered) i. 3 Stream of Commerce tests:(measures forseeability part of purposeful availment) a. Brennan Pure Stream of Commerce: when Ds components are incorporated into final product D has a contact w/any forum where D knows the final product is sold (entering stream is enough) *measuring purposeful availment, forseeability is not enough, D must reasonably anticipate being haled to that ct, but w/ this test could argue forseeability* b. OConnor Stream of commerce Plus: there must be some activity directed at the state, such as advertising or sending of replacement parts, before a contact exists c. Stevens Middle ground: consider volume, value of sales, hazardousness of product in assessing whether PJ is appropriate. o. Defining Min Contacts for specific in personum ju t.3 (business): Burger King v. Rudzewicz: BK included choice of law clause, Ds purposefully availed (FL negs & training,) CoA arose out of contacts (like Mcgee, initiator has purposefully availed) i. Factors (if contact based bus rel w/instate co/person, how substantial rel & connections?): a. who initiated business relationship b. negotiations (where happen, where docs executed) c. contemplated future consequences/work

d. terms of the K (choice of law provisions, length, any terms regarding regulation by 1 party HQd in forum state?) e. parties actual course of dealings (ntnlsm, mod cmrclsm) **dont forget-contacts must be related to dispute!** p. Defining Min. contacts for specific in personam. ju t.4) (internet): Zippo v. Zippo: pers ju directly related to nature and quality of commcl activity entity conducts over internet (adv targeted to the state? Circulation-how many hits from that state?-usu 20% is purpsful avail) a. Zippo Sliding scale: (level of interactivity) i. Active: D clearly does business over the internet likely pers ju bc likely pass min cont ii. Passive: D has simply posted info in an internet website which is accessible but not interactivelikely no ju bc would fail min contacts analysis iii. Middle ground: interactive websites where user can exchange info with his computer (on exam will be in middle, do Calder effects & reg. Shoe analysis to determine purposeful availment (targeted)) ** kind of like Pennoyer, focusing on presence: if just conveying info-not present, if person takes out credit card & charges something-present*

q. Shoe test for pers ju PART 2: FP&SJ

r. Transient Ju (Tag! )

Fair Play and Substantial Justice Factors: a. Burden on D b. P interest in convenient forum c. forum state interest d. interstate judicial int in efficient resolution of cntvrsies e. shared int of state in furthering substantive social policies ii. Context: international parties (Asahi), savviness of parties (BK,) alternate forum available (Pavlovitch/Asahi), P compensated? (Asahi,) solvency of Ds -big pockets: McGee/WWVW) iii. Usu satisfied in min cont exist and c/a related but not always (Asahi); sometimes even if v. minimal cntcs court rant ju is very fair (BK) (lib judges-more likely to grant ju, cons judges less) i. Whether JU can be based on physical presence alone, can you make service and ju the same thing? (flying, emergency land, can be served (tag!) & ju exist ii. Burnham v. Sup. Ct.: unanimous court says that transient presence is still a basis for establish in personam ju; court split w/reasoning:

i. ii. iii. iv.

s. Consent i. Possible constitutional clauses in Contracts: choice of law, forum selection, appointing agent for service of process, appointing agent for purpose of confessing judgment; allowed to include bc part of our economy ii. Carnival Cruise Lines v. Schute: forum selection clause, P says no abide bc not party to making contract. Court says fair for Carnival to do this bc no bad motive, Carn. has special interest bc ppl from all over ii.

Concurring, J. Scalia: formalistic view, j= power, at any moment while present can be served Concurring, J. Brennan: agreed w/Scalia but adding it must pass a Shoe like analysis (as Shaffer had said) that focuses on contacts/fairness Concurring, J. Stevens: no need to decide, this is easy case Scalia (easy/predictable) v Brennan (mushy std, not as prdct.)


a. Constitutional Reqs: Mullane v. Central Han: Sup. Ct. found notice by mail in this case sufficient; Ps knowledge of whether D notified matters i. Const. reqs when address known: notice reasonably calc, under the circ to apprise int parties of pendency of action & afford them opp to present objections within rsnbl time; (Publication usu not enough, usu means reasonably certain to inform those affected) ii. Const. reqs when address unknown: use means that not substantially less likely to bring home notice (ie notify the def ) than other feasible subs b. Statutory: FRCP Rule 4(k)(1)(a): JU exist if pass shoe test (for Scalia tag not enough under Federal rules. Tag=pers ju if exist under Shoe-Brennan) i. *Look at Rule 4 summary for all provisions! c. Waiving notice: (rule 4) get 20 days from service to answer, if waive get extra days iii.

Opportunity to be Heard

a. Must be given opp to be heard b4 deprivation of prop excpt in xtrordnry circum. of valued gov int.; must be in meaningful time & mngfl manner i. Fuentes-can be deprived of prop b4 hearing, only opp to be heard that cannot be deprived ii. Matthews v. Eldridge 3 part test: i. what is the nature of the prop int involved? (more sig, more protections reqd) ii. what is the risk of erroneous deprivation? (is there a bind/sec reqmnt? Whos deciding dep-judge, clerk, etc) iii. whats int of the party in seeking a prejudgment remedy? (prior int of plaintiff? Speculative?) what are fiscal/admin burdens if addtnl procedural step is reqd? iii. Reposessions-gov not inv., can do as long as dont breach peace

B. Self-Imposed Rest on JU Pwr: Long Arm Stat, Venue & Dscrtnry Rfusl of JU b. State Long Arm Statutes
i. all states have them, passed in a reaction to Shoe ii. can restrict ju but cannot enlarge it iii. FRCP 4 (k)1 says federal court is subject to rules of state court so MUST look at state long arm statute first iv. Pers Ju test: State Long Arm Statutes i. Is pers ju consistent w/state long arm stat? is statute narrower, broader or coterminous w/const. ii. It pers ju with consistent with Due Process Clause? (Shoe) i. determines where WITHIN states crt sys case can be brought ii. Compared to pers ju (whether crt sys has power over D) and SMJ (what categ of cases does a crt sys have power to decide?) iii. Statutory-all states have venue statutes and there are fed venue statutes. There is NO const. right iv. Change of venue (transfer, FNC): i. Improper: (1406) crt can: 1)transfer to a crt where case could have been brought (ex. Pers ju over D and proper venue) 2)dismiss; fed crts NO transfer to state crts, US crts NO transfer to foreign, state crts NO transf to other state crt ii. Proper: (1404)crt can transfer for convenience of parties, witnesses, and the int of justice; triggering event (upon mtn/consent/stipultn) & crt has broad discretion a. However, under common law, court can dismiss on grounds of forum non conveniens v. Forum non conveniens: dvlpd bc sys so easy for P, give great deference to P choice of forum only D can req FNC dismissal; common law doct. app to fed/st crt Piper Aircraft v. Reyno: not saying forum is const incon, ju exists, but in another st be easier, more efficent i. Court considers: a. priv. fctrs (location of witnesses, parties & proof) i.e.: ease of access to evidence, cost, easy to get Ws, possblty of viewing scene b. pub fctrs (which forum has greatest interest?) i.e: crt cngstn, localized int in having controv. solved @ home, avoid conflict of laws

c. Venue


SUBJECT MATTER JU (power of this court over this kind of case)

a. Federal SMJ has 2 reqs: Const. confers fed crt w/SMJ (art III s.2) AND Cong. Provides SMJ by statute (cong need NOT confer SMJ to full extent const. allows); abt whether its federal or state crt in that particular state b. SMJ (fed question & div ju) can be raised for 1st time after case was filed, even on direct appeal. Parties dont have to raise, crt can do it sua sponte c. Declaratory judgments do NOT enlarge SMJ

d. Concurrent JU: areas that fed & st can hear. Helps law to grow, each crt competing agst each others interpretations of the same laws e. SMJ in fed crt.: Federal Question i. Federal Issue: Arising Under i. P sued D for relief afforded by statute exacted by Congress. (Louisville & Nashville RR v. Mottleys) ii. P asserting Constitutional right iii. Claims involving Treaties (as long as treaty itself creates leg. Enforceable claim) iv. Int. law treated as fed. Law v. **presumption agst fed. Ju-P must plead properly that fed JU exists, if D challenges ju P has burden of proving ii. 3 questions for SMJ for fed crt. under federal question i. is there a federal issue? (no-no SMJ, yes-#2) ii. Does federal issue give rise to Ps claim (yes-SMJ, no-#3) iii. (didnt give rise) but is fed iss imp engh to federalize case? iii. SMJ in fed crt: Diversity Ju i. Const: case must be bw citizens of diff states; interpreted narrower than this thru-statute narrows: case must be bw citizens of diff states (complete diversity) AND matter in controversy exceeds $75,000 ii. Purpose of Div JU is to avoid state bias form judges (Strawbridge-need COMPLETE diversity one side v. other) iii. Corporate citizenship for Diversity JU is in place of incorporation AND in principle place of business a. 3 tests for PPB: (we use nerve center) i. nerve center test: where executive and administrative functions are controlled ii. muscle test: (where everyday business activities occur) where the business conducts the bulk of its activities iii. synthesis of both: corp activities test/total activities test b. Corps can have two (inc & PPB) **but subject to PERS JU in more than 2 (like GAP, min contacts EVERYWHERE) c. Non corp entities (law firms, patnerships) wherever members reside) iv. Non-Corporate entities citizenship for diversity JU is where domiciled (ppl have ONE, determined at time complaint was filed!!!-crt assumes you use this to your advg) a. Domicile- consider 2 things: i. physical presence-place of persons true fixed & permanent home and principal establishment ii. intent to remain-..and where person has intention of remaining indefinitely

iii. factors considered to determine these 2: where live & keep clothes and memorabilia, if contribute to HH costs, purchase bedroom sets, where vote, pay taxes, have drivers/other licenses, where work/have offices iv. *citizenship-domicile. Residence NOT synonomous w/citizenship so NOT w/domicile b. person remains domiciled in a state until (1) take up residence in a different domicile & 2 intend to stay there (indef.?) c. Note: infant acquires domicile @ birth (almost always domicile of parents), minor cant form intent so keep domicile of parents until age of maturity, prisoners & mil prsnl not necsrly domcld where jailed or based but can form intent to remain in that state d. Permanent res considered citizens of state if it defeats div ju but not if confers it (Saadeh v. Farouki) e. Aggregating claims: P can aggregate on a D, but multiple Ps cant aggregate on a D if claims are sep & distinct iv. SMJ: Supplemental JU (Ameriquest) i. This is about expanding JU-consitutional bc claims are really same case or controversy; One of main points behind it is efficiency (w/o it=duplictn) ii. Basically supp ju allows crt to take ju over a something nvr would have ju over bc they are so related makes more sense to try them at once, the yare part of the same story iii. A loose factual connection may be sufficient as long as those facts are both common and operative. a. Compare facts necessary to prove elmnts of fed claim w/ those nec for state claim b. Whether state claims can be resolved or dismissed without affecting the fed claims i. If dont handle state law claims cant provide full relief iv. For claims asserted by P in a fed question case: a. state & fed claims must derive from common nucleus of operative fact b. Ps claims are such that he would ordinarly be expected to them all in one judicial proceeding v. 1367: three part inquiry a. whether claims are so related they form part of the ame const case gvrnd by 1367 (a) (Gibbons, Ameriquest) b. the mandatory expcetions to the exercise of ju in 1367(b)-applicable when SMJ based on div ju c. discrtnry excptns to exrcs of ju in 1367(c) (Szendry) v. Removal (Caterpillar v. Lewis)

i. ii. iii.


v. vi. vii.

This is an opp for D to move case from state crt to fed crt Purpose: in div cases: protects D agst local bias; in fed ques cases: allows D to have claim litigated in natural forum Elements of SMJ must exist at start of trial



States and fed judiciary share power and overlapping ju; sev states may have pers ju to hear a case; state crts can hear cases arising under fed law; fed crt sitting in diversity can hear cases that could be tried in state court (Swift v. Tyson) div case in fed crt; generally interpreted the RDA to mean that fed crts had to apply state statutes but not state case law then moved from formalism in swift (fed crts arent undermining state bc they were just uncovering what the real law was) to realism (& positivism) in Erie (law is created not discovered; state and fed crt making statutory & case law that rep policy choices) a. so apply Erie anlysis to state law claims in fed court- 1)fed SMJ is on div ju, 2) court overseeing state law claim in fed cry in supp ju, 3)court is overseeling state law claim in fed crt in which US is a party KEY POINT: FED CRTS SITTING IN DIV (or overseeing state supp claims in fed question case) MUST OBSERVE STATE SUBSNTATIVE LAW WHETHER MADE BY LEGISLATURE OR JUDGES **BUT fed crts aply own rules of procedure a. RDA: state prevails except where Congress has stated otherwise. One otherwise is REA (Sup Ct has right tocreate gen rules of practice-FRCP) Overarching question for every Erie issue: is the fed rule in question substantive or procedural?-use all 3 tests & come up w/best guess on how court would rule a. If there IS a codified fed rule/statute that touches on the sbject go through guided erie (Hannah test1) **it is possible to accommodate state/fed interets-likely court will do so-so try to construe fed rule/statute to NOT clash w/state rule b. If theres no codified fed rule/statute on point OR you determine that there is but it does NOT conflict then in unguided Erie & must consider all 4 unguided tests. *Thus, even if decide the fed rule comports w/RDA, is constnl, & does not conflict w/state practice, must do unguided test to decide if apply state law. c. York: (unguided Erie) outcome determinative i. does application of rule change outcome of the case? (this case dealt w/stat of limitations); i. if fed rule would change it, use STATE rule; state rule is considered substantive if would change outcome, no matter how procedural it looks d. Bird (unguided erie): Modified outcome dtrmntv: *not cited often by courts i. is state rule bound up w/ state created rights and obligations? Is the state rule driven by substantive state concerns? i. If yes=sub state int. & state rule prevails; if no, keep going ii. Is it outcome determinative (York) i. No=prob procedural; yes=step 3


iii. Balance state int in uniformity or other state int. (from #1) agst a fed int. in maintaining integrity of its jud system i. Countervailing interests: idea of states wanting uniformity & what it means to be in a fed crt where u get lifetime judges, # of jurors, need unanimous juries) e. (Hanna v Plumer): 3 Tests: i. Hanna (guided erie): direct clash bw FRCP & state practice? i. Is there valid fed rule or statute directly on point? Do they clash? ii. If yes-is rule constitutional? a. w/ FRCP also ask does the rule comport w/REA?-rule must be 1 of practice/procedure, rule must not abridge, enlarge or modify any substantive right iii. If yes to both, then Fed Rule prevails; Supremacy clause makes duly enacted fed law supreme law of the land ii. Hanna Twin Aims(unguided Erie) i. Would adhering to fed practice frustrate 1 or both aims of Erie? If yes, can argue for state law a. Twin aims i. Discourage forum shopping (would either side have chosen at outset 1 crt bc of rule) ii. Equitable administration of the laws (is there anything inequitable about requiring this rule in fed crt & other rule in state?) ii. Slightly diff than outcome det test bc asks if diff is the sort that really matters (make litigant choose 1 crt over other) iii. Probs w/ this test: equitable is diff for P and D, uniformity iii. Harlan Primary conduct (unguided Erie) i. Does state rule affect primary conduct (non lawsuit related behavior)? if yes, then apply state law Pleadings a. P starts lawsuit by filing COMPLAINT with Ps allegations.-provides notice to D. D files an ANSWER or a PRE ANSWER MOTION (sometimes counterclaims, cross claims, or third party claims too) or sometimes a REPLY b. FRCP 8(a)-claims for relief: A pleading. . .must contain: 1) stmnt of SMJ 2)short & plain statement of claim showing pleader is entitled to relief under any applicable law (whether or not he identified it in comp.) & 3) a demand for relief sought i. (Conley) Claim required to show some facts that in combination with some conclusory lang might establish liability under some theory of law ii. (Twombly)(Iqbal) raised the barrier of sufficient pleading to the plausible-(as opposed to possible under Conley)-litigation is



e. f.

expensive so not as permissive in allowing Ps to being claims and using discoverty to determine is viable claim. Now use 3 part test: a. identify the elements of the claim P wants to prove b. Are the allegs well-pleaded? (are they supported by factual conclusions-cant be mere conclusory stmnts) i. Conclusory allegation: alleg so generic usu reciting an elmnt of prima facie case that it could be cut & pasted w/o modification into any number of fact patterns OR an alleg that fails to identify the real world acts or events (or transaction occurrences) that took place c. Are the well plead allegations plausible? Only a complaint hat states plausible claim for relief survives motion to dismiss, mere possibility is insufficient i. When both the guilty (liability creating) & incnt explntns r posbl, Ps must plead something more by way of factual content to nudge his claim across the line from concvbl to plausbl Responses by D to Ps complaint i. Pre Answer 12(b) Motions to dismiss (lack of pers ju, failure to state a claim. . .) i. Court must take all well pleaded allegations as true and will consider only those allegations within the 4 corners of the complain (or incorp therein by refernce) ii. Well plead-look at Twombly reqs of well plead* iii. P in fed crt not reqd to plead factual allegs respctin each & every elmnt of a theory of liability under an app law (elements-pleading) its good practice iv. Grant 12(b)(6) motion if determines P does not plausibly show an entitlement to relief under app law. Its not enough that such alleges are equally consistent w/an innocent exp as w/liab creating explanation ii. Answer (admit, deny-negate Ps allegations, lack sufficient info) iii. Affirmative defense (yes, but) iv. Claims by D (cross-claim, counter-claim, 3rd party) Purpose of pleadings: puts parties on notice claims and defenses, permits quick disposal of complaints which suffer from serious defects, permits the quick disposal of alleged claims for which the law provides no redress, shapes discovery process Special Pleadings: more specific fact pleading required only for matters reqd by 9(b) or statute to be plead w/particularity or in specific detail. Courts lack auth to require heightened pleading on their own initiative by judicial interp. Ethical Limitations (R11)(**remember: DISCRETIONARY) i. Purposes: prevent/deter bad conduct, prevent frivolous pleadings, establish pleadings & sanctions


ii. Disadvantages: b1: litig automatically causes delay, any rule that talks about motive is elusive (maybe mixed motives) & hard to prove; b2: id dont extend law cout be deemed frivolous, growing/extending law is whole point of lawyers; how determine test for frivolous/not? (does it raise jury ?); b3: has to ber meritorious but how do you get it? Then later see this doesnt apply to discovery anyway; if party initiated have 21 days to fix error (safe harbor provision), if crt initiated no safe harbor, crt has discretion in applying r11..prob w/dscrtnry rules? iii. Standards of Review: i. De Novo: as if the court were considering the ? for 1st time. Std used to analyze dcsn of a lower crt on ?s of law. ii. Abuse of discretion: arbitrary & capricious or clearly erroneous; These stnds of review used by upper crt to analyze findings of fact or discretionary rulings. a. Abuse of discretion: reqs crt to exercise dis in a deliberate, informed & rsnbl way; very hard to overturn judicial dcsns under this std. usu only done by above courts if lower court did something like not write opinion, or op says soething like I took this sides facts as given..; court looks to the rule/law & analyze case to see if any supp for lower crts dcsn. Discovery a. Stages of Discovery: i. 1st Stage: Mandatory Disclosures-R. 26(a) i. (1) initial disc-exchange categ of info that disclosing party may use to support its claims or dfense: names and loations of W, descrptions & locations of docs & calcs of damages and insurance agreements ii. (2)exp witnesses and testimony iii. (3)pretrial disclosures-list of witnesses & docs/exhibits a. MUST disclose w/o being asked-enforced by 37(c)(1) iv. This stage only appls to what supports you case! Dont have to include things that will hurt you or make you look bad ii. 2nd Stage: Interrogatories & admissions (33, 36, 37) i. Interrogs (33) elicit fairly routine specific information (ID person, docs & digital info in possession of other side that wre not listed in reqd disc bc tey dont support odversarys claim/defense; inexpensive; limited to 25 questions (or permission of crt/parties for more); can only be sent to party (not non-party witnesses) a. Must answer questions even if make you look bad ii. Reqs for Admissions (36) makes evidence irrelevant by taking an issue out of controversy. Like interrogs-useable only agst parties, in writing, relatively cheap, limited usefulness; reduce trial time; enforced by 37(c)(2)

a. Doesnt uncover evidence, just clarifies anything thats unclear. b. Relevance: seems rsnbly calc to lead to disc of admissible evidence iii. 3rd Stage: Docs, Things, Land, & Bytes Req for Prod (34 & 35) i. covers any tangible item inc docs, emails, electronically stored info, land, medical reds, accntng recs, memos abt contracts, notes, & prior versions (meta data); for non party send subpoena (445(a)(10)(A)(iii); only AFTER disclosures under R26(a); no limit to # of docs ii. this is wher you get the smoking gun but remember must keep balance between your need for info and persons right to privacy iv. 4th Stage: Depositions (27-32) i. expensive but critical; opp to explore & ask questions w/o knowing answer; can force W to take a pstn; lawyer can follow up with more ?s if W evasive; no depo may exceed a day of 7 hours; cant be deposed nd time w/o permission of court or other side ii. most pop answer in a depo: I dont recall. iii. If people are not complying CANNOT use Rule 11 bc its discretionary b. Discovery Abuse: Ensuring Compliance i. (37) Series of devices to elicit the info or reponse to parties refusals. Crt may impose punishments inc awards of expenses to dismissals of entire case or entry of default judgmnt; R37(d) and (f) are sanctionsany others cant be sought until cry orders party to comply. ii. (26) Signature (like 11) suggests that attnys fees are apprpte sanction for most violations; improper purpose such as to harass or cause unnecessary delay or cost i. (c) protective orders iii. (30)(c)(2); (d)(2); (d)(3)-obj to partys conduct & sanction for impeding, delaying or frustrating fair exam of deponent c. Policy Arguments about our Broad Discovery System i. Advantages i. levels playing field, eliminate surprises so allows for better preparation, might contribute to streamlining of cases, promotes settlement so resolve disputes quicker ii. Judges minimal involvement in discovery i. Advantages: complies w/r1 (efficiency, speed, inexpensive) ii. Disadvantages: shift from judge centered process to a lawyer centered process; lawyers in control more, more $$/pwr for lawyers iii. Idea that it is more cooperative & less adversarial i. Disadvantages: might be demoralizing if work hard to find something & must be given over to other side for free,

reduces the opportunity to be heard bc less trials more settlements; may give pwr to ppl w/more $$ (WP prtection might be set up for ppl w/more $$, buy smarter lawyer) d. Limitations on Discovery: i. 1st Step: Relevance i. is it relevant to any partys claim or defense? Yes-may be discoverable ii. Is it relevant to subject matter-yes, may be disc w/crt order a. *Relevance: (have any tndncy to make exstnc of any fct thats of cnsqnc to the dtrmntn of the actn more/less prbl than itd b w/o evdnc) iii. If no to both of those is it nevertheless disc under 26(a)? iv. If yes, is it privileged or prtctd under WP or privacy? If no is it unproportionately burdensome-26(b)(2)(c) ii. Privilege i. Can be waived (if its inadvertent showing of info-meta data-sometimes not considered waived) ii. Restatement: A comunctn, made bw prvlgd persons, in confidence, for the purpose of obtaining or providing legal assistance for the client. iii. Purpose of priv: having it means attny get more info bc client may more freely talk, encourage open full and frank communication and ensure clients get adequate rep & advice from laywers. Supporters say ultimately leads to more compliance w/law lawyers involved in whole process from beginning to advice on actions to enforce compliance. iv. (Upjohn)In corporation context pri more complicated bc not sure who client is. Upjohn court lists factrs to determin whether something should be covered by priv in corp context: did it eventually help lawyer in some way give legal advice? iii. Work Product (FRCP 26(b)(3) i. Material other than underlying facts, prepared in anticipation of litigation, by/for another party or rep ii. Restatement: tangible OR intangible material oher than underlying facts, prepared by a lawyer (or agent of lawyer), for litigation then in progreoss or in rsnble anticipation of future ltgntn (this one protects anything client did in a of l) iii. 2 types: a. Ordinary WP: all materials in anticipation of litigation that dont reveal attnys thought processes about case (ex photos, verbatim statements from witnesses) i. Protected unless party can show substantial need & undue hardsip in obtaining materials in other ways


Work Product

Duty of Confidntlty.




b. Opinion WP: all materals prepared in anticipation of litig that reveal the attnys though processes (ex. Legal memoranda, observations of witnesses) i. Receives almost ABSOLUTE prtcn frm disclosure Anticipation of Litigation-2 issues a. Timing (crts take very narrow approach) b. Purpose i. Ordinary business exception 1. Bc of litigation; primary motivating factor (Hickman) 3 part test: a. is material WP? i. Must be docs or tangible things or their intanglible equivalent. ii. Must be prepared in anticipation of litig or trial 1. Narrow view of what it means to be in anticipation 2. Business prps excptn: when docs are prepared in anticipation of litig for both litig & busns prps, may not be protected 3. Materals must be prepared by or for anoher party of its represenative b. Does a substantial need exist for info w/no alternative? i. Substantial need: shows a subsntl need exists for the prp of the partys case ii. No alternative: shows that the party seeking the dis cannot obtain equivlent elseqhere. 1. Does NOT apply to mental impressions c. Would materials reveal mental impressions conclusions opinions or legal theories of counsel? Purpose: developed to accnt for realities of modern prctc and imp of 3rd party consultation to prepare for trial a. Without WP: ppl may stop writing things down, sharp practice will result, int of client poorly served (are we in this for the truth? Or to give ppl chance to heard? Attnys as zealous advocates or gatekeepers ensuring compliance w/the law) Duty to keep everything client comes to tel you confidential, but you may be called in to answer other things that onthave to do w/your legal advice

iv. Privacy i.


Applies only to comnctns bw priv persons (narrow) Rule of Evidence Allows loawyer or client to refuse a request to disclose infro communicated bw privileged persons

Covers info, ddocs, prepared during or in aniticaption of ligation Rule of Discovery Allow lawyer to refust to disclose info created in anticipation of litigation

Source of Law What it Does

Covers all info lreanred re: to represeatnion even if not technically a secret (very broad) Rule of Prfsnl Resp. Ensures lawyers do not use/reveal info leanred in the context of repressetnations (includes non tribunal setting)

Attorney Client Privilege v. Work Product Doctrine: Priv-gnrly protects confidntyl comms bw a/c when for purpose of legal services/adviceonly protects the attnys legal advice or comms based on or that might reveal conf client info; cant be pierced on showing of need WP-gnrly ptoects tangible/intangible work profuct is prepared by an attnt or a rep or agent of the attny for litigation or in anticipation of litig. (narrow interp and business excep); piercable on showing of need (not on attnys mental impressions xii. Resolution without trial a. Pretrial Adjudication i. Voluntary Dismissals (41(a)) ii. Involuntary Dismissals (41(b)) iii. Default (41(b), 55, 60(b)) iv. Summary Judgment (56) i. Crt decides case before trial based on a dtrmtn as matter of law that only one side coult rsnbly prevail-no rsnbl jury could find for the nonmoving party. ii. (Celotex-whether a D to win SJ must present evdnc to negate an elmnt of Ps claim or whether D can win SJ merely by showing that P lacks evdnc to supp an element) D need only point out Ps lack of evidence to support an element (that P would have to prove at trial to prevail) iii. Burden of Proof: a. Burden of Pleading: if neither party intros the issue in pleadings, party w/burden cant offer evidence at trial b. Burden of Production: party w/burden must offer enough evidence that rsnbl jury could find for that party c. Burden of persuasion: std he jury considers when deiciding (normal civil case-preponderance of evdnc) d. Ps burden: for P to win SJ P must be able to est every element of the claim and show that if the case were to go to trial no rsnbl jury could find for the D


Trial a. 7th Amendment-Right to Jury Trial-4 reqs

i. This is bc P has the burden of production at trial to produce enough evidence so that a rsnbl jury could find in Ps favor e. Ds burden: for D to win SJ D must show that the P does not hav sufficient evidence to raise a genuine issue as to any element of Ps claim. (D need only show Ps failure as to a single element of the claim) i. D has to show w/ supp evdnc that Ps evidence is so utterly lacking that no rsnbl jury could find for the P on that element. f. Non-moving partys burden: once the moving party has carried its burden the resp shifts to the nonmoving party to show that theres genuine issue of material fact i. Must come forward w/specific facts showing that there sa genuine issue for trial. ii. In eval the cry must draw all justifiable inferences in factor of the nonmovant. g. Notes: Parties must offer evidence in supp of MSJ (ex affidavits, depo testimony, docs); D may move for SJ at any time, P must wait for 20 days after service v. Alternative Dispute Resolution (ADR): any process or procedure other than adjudication by a presiding judge in which a neutral 3rd party participates to assist in the resolution of issues in controversy i. Mediation, settlement conference, arbitration, neutral evaluation, non binding arbitration, summary jury trial mediation ii. Arbitration is more formal w/3 panel of judges and is binding. Mediation is less formal, focused on goals and finding solution acceptable to both parties. iii. Judicial involvement in it: rule 16, inherent power, ADR act of 98 (28 USC 651 (b)) a. R16: judge trying to expedite litig, managing docket & doing ADR; role of lawyer is changing, now more negotiator than adversarial. Wanted attnys to fight for evry adv to prtct intrsts of clients (loyalty to client) ; was abt justice & getting to truth. As neg dont necesrly have best interest of client in mind, now battle is moved to discvry process; lawyers not really trained as negotiators iv. Policy: internet & cyber judges a. Cyber settling, robot judges-offer consistency, speed, but what about fairness in every case as opposed to majority of the time? lack of discretion, lack of ability for law to grow & change, lack of opp to be heard

i. History, Analogy, Pragmatic, Statute i. Assert a claim that would have triggered right to a jury trial under Eng CL in 1791 (when 7th was ratified) or historical analog. If neither work, pragmatic approach ii. Fed court (does not apply in state crt even when a litig is enforcing a right created by fed law) iii. Over $20 iv. essentially legal vs equitable in nature (R.38) i. common law/jury trial: money damages except: ejectment (P sues to eject D from prop), replevin (P seeks order restoring something to his possession), habeas corpus, mandamus prohibition-certiorari trio ii. equity/no jury trial a. injunctive relief but do pwr to add on incidental dmgs b. Judgment as a Matter of Law i. 12(b)(6) mtn to dismiss (failure to state a claim) ii. Summary judgment (R 56) iii. Directed Verdict/JML (Judgment as a Matter of Law) (R 50a) i. Grant motion for DV or JNOV: a. Aftr cnsdrng all evidence & in light mst fvrbl to non mvr b. Facts & inferences overwhelmingly favor 1 party & crt believes that rsnbl ppl could not arrive a contrary verdict. (no legally sufficient evidentiary basis for a rtnl jury to find for that party on that issue) ii. DO NOT grant JNOV or DV: a. If theres substnl evidence opposed to mtn thats of such quality & weight that rsnbl & fair-minded ppl in the exercise of impartial judgment might reach diff conc b. Remember: judge NOT supposed to weigh credibility of witnesses even when case seems strongly 1 sided. c. BUT (CB 608) Mere scintilla of evdnc is insffcnt to present a ? for jury. . .there must a conflict in sbstnl evidence to create a jury ? iii. Direct conflict of testimony upon matter of FACT the ? must be left to the jury to determine w/o regard to # of witnesses upon either side iv. Judge may never make a credibility detrmintn in granting JML-thats matter for jury. Nor may judge weigh evidence v. If party makes pre verdict rule 50 mtn for JML/DV/JNOV but fails to renew mtn (R50b), court cannot grant JML. Even if agrees about insufficiency of evidence to support verdict, W/o renewing mtn party cannot appeal on any ground examining sufficiency of evidence. c. New Trial i. Reasons:

Flawed Procedure: (need to be more than harmless error & prty must object at trial) ii. Miscarriage of justice/seriously erroneous a. (judge feels verdict agst great weight of evidence) iii. (Lind v. Schenley) a. in a flawed procedure case district court judge has wide discretion in granting/refusing a new trial bc no usurpation of prime function of jury as trier of fact. b. In miscarriage of justice case district court judge has less discretion & appellate crt must apply closer scrutiny when reviewing district crt judge directed verdicts. District court judge should scrutinze verdict more closely when trial is long, complicated, deals w/matters not in ordinary knowledge of jury (when subject matter is simple/easy jurys main function is validity of witnesses iv. Note: in fed crt judge cant play role of 13th juror-not supposed to consider how he would have decided and grant new trial bc jury decided differently ii. Order for new trial not appeal-able i. (ex: judge grants mtn for new trial after jury vrdct (if its bc of flawed procedure/miscarriage of justice), non moving party can appeal AFTER new trial) iii. Denial of new trial is appeal-able iv. Judge can order new trial on own mtn i. (no later than 28 days after entry of judgment) v. Can grant partial new trial or remittitur (reduction of damages) d. JML/DV/JNOV v New Trial i. JML/DV/JNOV- no rsnbl jury couldve reached result the jury reached (direct assault on jury rtnlty); crt saying winner of verdict had no evidentiary supp for at least 1 essntl elmnt of claim/defense. Results not in new trial but immediate entry of judgment for loser of verdict. ii. New Trial-judge disagrees strongly w/jury but cannot say that no rsnbl jury could have gone there. (ex-judge may feel the jury verdict is miscarriage of justice) e. Standard Jury Trial Proceedings i. After jury selection completed, prties presnt their case to judge & jury ii. Opening statement iii. P presents Ws & other evidence (eg docs) i. Direct examination by Ps lawyer ii. Cross Examination by Ds lawyer iii. P rests iv. D presents Ws & other evidence i. Direct Examination by Ds lawyer ii. Cross Examination by Ps iii. D rests


v. Closing Arguments by both sides vi. Jury instructions by judge (jury charge)