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” Rule 1: The FRCP should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 8: Affirmative Defenses – don’t forget about these and get caught up in cross and counterclaims, you have to assert these right up front when you are the defendant – Contributory Negligence! Exam Tips: • FIRST THING: Find the nominal party. Point them out. Cite Pete Rose. • REMEMBER: This final exam should be easy. Spend most of your time pointing out and analyzing obvious stuff. That is the bulk of the exam. Just do it. No triple-lundies. • Use only one-word citations. • Rule 13 = heavily tested because we spent a lot of time on it • If you assert a 13(a), then Penrose wants you to try to work it in for SMJ under 1331 (FQJ) or 1332 (Diversity) even though it probably fits under 1367, because the judge might look at your 13(a) and decide to call it a 13(b) • Remember that due to anonymous grading, you must start from square 1, explain everything, even obvious stuff, and write clearly and concisely o State the definition from class of a compulsory counterclaim. State all definitions. Write everything out. • At the time of the filing, FREEZE. FIND EVERY RULE AND FRCP THAT APPLIES + 12(b)s AND AFFIRMATIVE DEFENSES AND MAKE SURE THAT YOUR ∆ ANSWERS. • If you have a traditional basis for personal jurisdiction, then do not get into International Shoe, it is either/or, not both. • If you discuss Int’l Shoe then always discuss MC AND TNFPSJ (The White Test) NOT just one or the other. • Example of reasoning for the ACLU hypo o No office, no business, specific details on length of time, not “arising out of,” no intentional direction, no purposeful availment, no MC, no TNFPSJ • The final will have one traditional basis of jurisdiction • The final will have multiple plaintiffs and multiple defendants • Always have the defendant answer and file a counterclaim The following things will undoubtedly be on the final, if you don’t see them, you aren’t looking hard enough. • Personal Jurisdiction • Subject Matter Jurisdiction • Venue • Erie doctrine • Summary Judgment • Joinder of Parties o 13a, 13b, 13g, 20 and 14 – these rules will all be on the final Queen Latifa – she is MLB in the Pete Rose case! She is not a party-in-interest and the “Artful pleading” doctrine applies. (this will be a way to pick up some surreptitious points) For SMJ, make sure to list out each item! > E.g. 1 of 36
(1) loss of scholarship, $20k, (2) medical bills, 50k, etc… Tips from the NASCAR session: • The bare minimum for the final, the things Penrose sees in nearly every case in practice, includes PJ, SMJ, V, Erie, *, 12, 13abg, and 14. • Maybes for the final are 17, 18, 22, 20. • Even if the пs move before trial, you still have to do a domicile analysis and explore what would happen if their move was not successful in changing their domicile. Even if it seems obvious. • Hoffman v. Blaski: if you consider a transfer, then you can’t transfer where п could not have brought, THEREFORE, YOU NEED A DOMICILE ANALYSIS FOR EACH ∆ for diversity. • FQJ will probably be on the multiple choice because you must test Erie. • Following Shaffer, the law is in flux on Pennoyer part 4, so it probably won’t be tested. • Don’t forget to SAY the basic Erie rule on the exam. Don’t assume Penrose knows it. Federal courts must apply federal procedural and state substantive law. • Even if somewhere is a crappy venue, do your best to fully analyze it as if you were going to conclude that it was proper → you can mention convenience to ALL parties including witnesses. Look at whether some parties travel a lot and people expressing interest in visiting or not visiting. • Point out all the traditional bases of jurisdiction that you can; don’t skip them just because the person waived them by failing to file a 12(b)(2). • The essay will have 13(a) and (g), possibly (b), 14, and 20. Rule 19 will not be on the exam and if you even mention it, then you will lose points. • Removal is automatic if the reqs are met, watch for already being in fed. ct. due to removal. If п moves to remand to state court, they have to be alleging no diversity or something. Maybe they want to argue that they have not changed their intent to remain indefinitely. • You must file all the 12(b)’s together or you waive them. Always start a Penrose PJ discussion with, “Personal Jurisdiction is a court’s power or authority over an individual or entity. It stems from the due process clause of the 14th/5th amendment of the constitution. It is a personal right that can be waived. (See Pennoyer, p. 76)” o Even if the forum selection clause is good, you have to go on and do the other MC + TNFPSJ test, or you’ll get screwed on the final. Penrose wants you to assume that this is like a complaint where you argue every alternative or lose the rights to it later on. • Do a thorough basic analysis and stick to McGee and Hanson and the really clearly applicable cases, make one quote that goes to the heart of the issue and move on. The One Word Rule of Personal Jurisdiction: Presence. The Blackmer Principle: All courts have personal jurisdiction over you when you have (1) a residence infact in the state AND (2) intent to remain indefinitely (measured by an objective test) The Traditional Bases of Personal Jurisdiction 1. Domicile 2. Consent o Express OR Adam principle: Filing in an unconnected jurisdiction is express consent o Implied (usually implied by law in an implied consent statute) 3. Property in-state PLUS attachment to the case before adjudication
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o Attachment requires seizure which aids in giving due process notice. This is especially required when the defendant is out-of-state and you try constructive publication notice. Pennoyer Constructive Notice (Publication) Rule: Publication is insufficient to give due process notice to a person out of state. Exceptions: Status (like marriage) AND attachment before judgment • In Personam: The court exercises its power to render a judgment for or against a person by virtue of his presence within the state’s territory or his citizenship there. • In rem: The court exercises its power to determine the status of property located within its territory, and the determination of the court is binding with respect to all possible interest holders in that property. • Quasi-in-rem: Judgment for or against a person, but recovery limited to the value of property within the jurisdiction. Pennoyer was a collateral suit, i.e., it did not dispute the legal fees of the original suit. Hess Inherently dangerous activity lends itself to implied consent because (1) reciprocity of law protection and jurisdiction (2) danger to State’s citizens and use of State’s property International Shoe The Constitutional Due Process Limit to Long-Arm Statutes: “Minimum contacts with the state such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Rule: Exercising privilege of conducting activities within a state avails one of the benefits and protection of the laws of that state. This exercise may give rise to obligations to come back. Minimum contacts factors: 1. Nature AND 2. Quality of the contacts Minimum contacts types: • General Jurisdiction: Requires “contact tantamount to citizenship” (Siegel’s) • Specific Jurisdiction: Requires litigation regarding in-state activity, not unrelated matters Two Types of Long-Arm Statutes: 1. Maximum to the International Shoe limit 2. Enumerated according to the matters specified in the long-arm statute Gray v. American Radiator This is a parochial case limited to Illinois. The rule here is that if an inference can be drawn that your business results in substantial use in Illinois, then Illinois has specific jurisdiction (I think). 1/18/2010 Int’l Shoe expanded on Pennoyer to add MC + TNOFPSJ to literal, physical presence McGee, p. 82 • One contact is enough IF it has: o Sufficient nature o Sufficient quality • Reissue of a life policy to a CA resident meets this test Hanson, p. 101 • Distinguished from McGee in that no act was done or transaction consummated in forum o Court points out that solicitation in McGee is different in nature then back and forth mailing of trust documents where there is no solicitation
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(3) causing harm. when application of the test is not “unreasonable.” • WWVW cited to Hanson to point out that foreseeability alone is not dispositive • Defendant must have “purposely availed itself of the privilege of conducting activities within the forum State.” Harris Rutsky. Powell. A contract with a company in FL is not enough. White. A contract with a FL Corp. p. The interstate judicial system’s interest in obtaining the most efficient resolution 5. • Quality of contact: Correspondence was substantial and continuous. 129 O’Connor. Justice White’s Five Factor Fairness Test: 1. Marshall. The Effects Test: This applies only to wrongful activity without the state causing injury within it or to commercial activity affecting state residents. and Scalia said foreseeable SoC meets N&Q for MC only with PA Brennan. the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state Burger King (Brennan).“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The contact with the FL HQ was not random. or attenuated. 119 9th Circuit three-prong effects test (misnomer because its really a purposeful direction test) (based on the Calder “effects” test: (1) intentional act. • 4 of 36 . Forum’s interest in adjudicating 3. p. period.” Motions 12(b)(1) motion to dismiss for lack of subject matter jurisdiction 12(b)(2) “ “ personal jurisdiction 12(b)(3) “ “ venue 12(b)(5) “ “ service 12(b)(6) “ “ state a claim upon which relief can be granted (demurrer) World-wide Volkswagen. The Asahi Plurality. Burden on Defendant 2. 105 Justice White’s foreseeability test: The correct foreseeability test is whether the defendant reasonably would foresee himself being haled into court in the forum based on his actions. 119 • Nature of contact: Contract with FL Corp. p. thus invoking the benefits and protections of its laws. Kulko – The Divorce Case The one contact must have the appropriate nature and quality. p. Plaintiff’s interest in convenient and effective relief (when that interest isn’t sufficiently protected by the plaintiff’s power to choose the forum) 4. with choice of law of FL + mail correspondence including payments following contractual negotiations. Penrose: But what if you know something that makes it foreseeable that the product will move to a specific forum? Keeton P does not have to have minimum contacts. The shared interest of the several States in furthering fundamental substantive social policies WWVW Take on Gray – The stream of commerce ends at the retail sale and does not extend to products that tend to move around like cars. Blackmun concurrence not listed: Said no PA required. fortuitous. that contemplates a structured 20-year relationship involvinhg continuing and wide-reaching contacts with the FL HQ is sufficient. Renquist. (2) expressly aimed at the forum.
p. etc… Helicopteros. 142 • Rule: Mere purchases. Int’l Shoe limited them by the due process test of MC + TNOFPASJ. p. Consent d. White.Stevens. (5) payment of salaries. Hess v. no direction of contact The Step-by-Step Analysis for an Exam: 1. • The Supreme Court held the plaintiff’s counsel to their mistake of not arguing specific jurisdiction Pebble Beach. p. One modern basis for jurisdiction – THE LONG-ARM STATUTE (legitimized in Hess) a. (1) director’s meetings. Benguet. (3) banking. • Shaffer is another great example of an implied consent statute. 155 1. 139 – Penrose thinks this is the best case illustrating General Jurisdiction This is the only case where General Jurisdiction was established through the substantial systematic and continuous contacts test. Domicile c.” o Certain parts of his analysis starting on p. foreseeable effect + “something more” the third prong Burnham (Brennan style): You are using the police and the fire dept even when you stay in a hotel for the night. (6) purchasing of machinery. Interactive websites: “permit a user to exchange information with the business” – maybe 3. using the police means using the benes and protections of the forum laws. b. 1/25/2011 General Jurisdiction Specific Jurisdiction = 98. (4) stock transfers. 79. c. p. The Zippo Test: p. It emanates from 14th amendment due process. 166 arguably indicate that the absolute language used in his conclusion came with some qualifications. (2) business correspondence. Does the court have it? 2. 161 • Justice Marshall said that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. 3. like Hess 5 of 36 . ipso facto. General Jurisdiction = 1. First. and Blackmun concurrence listed: Stephens wanted to point out that the MC test is dicta and irrelevant to the holding because of TNFPASJ and that the PA test is flawed. There are four traditional basis for jurisdiction a. Property + Attachment + Service 4. look at the statute (Max v. 150 – 9th Circuit • Purposeful availment = in-forum action that avails of the benefits and protection of the law • Purposeful direction = the Calder 3-prong effects test. systematic and continuous contacts test.1% Perkins v. This requires a long-arm statute. 164 III including footnote 37 p. Passive websites: no reciprocal ability. Physical Presence and service – including transient jurisdiction. no matter how many (4 mil or so) do not count as substantial for the substantial. Enumerated) 1/27/2011 Shaffer. Active websites: “businesses use to carry out transactions with residents of the forum state” = yes 2. Paloski legitimized long-arm statutes b. no different from a billboard. See Pennoyer. See Grace p.9%. Personal Jurisdiction is a court’s power over a person or entity.
The Total Activity Test: This is a hybrid test. only • Penrose pointed out the two-part test. p. military. inmates – what do they do for the summer. and nonformalistic. weird stuff like fed ct. p. flexible. Brennan. 282 Rose v. p. DL.S. Zapata Off-Shore Co. 281 • Limited partnerships are citizens where their partners are citizens. The Nerve Center Test: “The locus of corporate decision-making authority and overall control” 2. Scalia salvages Pennoyer’s physical presence by construing Shaffer (in his typical hyperbolic manner) as only making in personam and quasi-in-rem one and the same. p. 6 of 36 . 188 • Penrose. “If this case didn’t come out the way it did. Pass the legal certainty test a. 189 • The Forum Selection clause test: [This is a constitutional muster test] 1. car tags. then he can exclude them from the total amount calculation. • Unincorporated business associations are citizens where their members are citizens. then no one would want to do business with the U. but the court listed other factors on p. Paul Mercury Rules: (1) Damages for the Amount in Controversy must be: 1. Delaware enacted an implied consent statute covering anyone being a director or officer of a Delaware corporation o The “consent” applies to litigation related to their directorship The Burnham Plurality. really a totality of the circumstances test. Legal Certainty: If the judge can say to a legal certainty that the damages will not be recoverable. bold.” Carnival.. all caps. even the transient physical presence of Grace • Scalia and Brennan are diametrically in apposition on why. (Penrose indicated that this probably won’t be on the final) Two St. • People can have only one citizenship and it equals their domicile. etc… o look at distance from other forums. 189 on the last ¶ that might be worth looking at 2/10/2011 § 1331 = Federal question /AV (arising under) § 1332 = CD + RJA Presumption: There is a presumption against the party wanting federal jurisdiction. reasonableness. location.o Immediately following Shaffer. 175 • Everyone concurs that we will not do away with the traditional basis of physical presence. voter reg. believes in jurisdiction mainly based on the modern convenience of travel and slightly on purposeful availment by presence. etc… • Corporations can have two citizenships. It is realistic. It has to be conspicuous (you can’t sneak it in) 2. It can’t be so unfair and unreasonable as to discourage litigation (no arbitrary far-away locations) o look for ink. (1) state incorporated AND (2) principal place of business Three tests for principal place of business: 1. 3. M/S Bremen v. p. Pled in Good Faith 2. Students. The Corporate Activities or Operating Assets Test: Greater weight is attached to the location of a corporation’s production or service activities in this test. Giamatti rule: Federal courts only look at parties in interest and not nominal or formal parties for purposes of complete diversity. of course.
In other words. Inc.g. Allapattah was a narrow exception for class actions only. 299: This construed § 1331 and Article III differently. Tours. Whittchurch. You can’t subpoena someone in Alaska and force them to come to Texas to testify. > This case seems to imply that all courts do is statutory interpretation.B. then that party also bears the burden of proof o Citizen of a State requires: (1) Citizen of the United States AND. Subject Matter Jurisdiction This stems from Article III of the U. limiting it to the “arising under” test. This helped deal with the congested docket overload following the Civil War. Perry. in which there is a common and undivided interest. 285 7 of 36 . P cannot do through § 1367 what P cannot do through § 1332. (2) Domiciliary of that State o Domicile = “his true. Punitive damages may be included if permitted under controlling law General Rule: Each plaintiff must meet the Amount in Controversy requirement for each defendant. if challenged. UNLESS you seek to “enforce a single title or right. Eliscu. v.(2) The amount is measured either by: 1. the others would get it. 303 The Holmes “Creation” test: The suit arises under the law that creates the cause of action. DIVERSITY Strawbridge. The profits unjustly received by the defendant. If one plaintiff failed to collect his share.S. (4) arguably less frequently changing procedural rules and juridical background Mas v. 02/15/2011 § 1331 is Federal Question Jurisdiction § 1332 is Diversity Jurisdiction § 1367 s Supplemental Jurisdiction (claims that do not meet § 1331 or 1332) General Rule: In supplemental diversity. Exception: Exxon v. ALSO 3. p. p. you still need complete diversity.” o Changing domicile requires (1) taking up residence in a different domicile and (2) doing so with intent to remain there o Mas overturned the classic rule that a wife’s domicile is that of her husband AMOUNT IN CONTROVERSY A. 278 (The Domicile Rules) o The diversity must be present at the time the complaint is filed o Jurisdiction is unaffected by subsequent changes in citizenship o The burden of pleading is on the party invoking federal jurisdiction. and to which he has the intention of returning whenever he is absent therefrom. Harms v. The plaintiff’s losses OR 2. p. and permanent home and principal establishment. You can’t aggregate plaintiffs. p. Bank was a party would have that ingredient. Mottley.A. fixed. 297: Article III § 2 limits jurisdiction to cases with a federal law “ingredient.S. (3) more resources. 272 o You need complete diversity o Exception: Minimal diversity laws Federal courts have (1) judges appointed for life. (2) broader geographical range of jurors. p. Constitution.F.” E. p.” This case went as far as to indicate that any suits where the U. Aggregation (probably not on final): You can aggregate unrelated claims. T. Federal Question Jurisdiction Osborn.
period. or child custody. and there’s possibly a contractual interpretation thing in there too o These do not require an interpretation of the Copyright Act. but rather to the “arising under” test. alimony. Eliscu (2d Cir. p.B. denied). • The case talks about the “ingredient theory” of Article III under Osborn • The Holmes “creation” test: The suit arises under the law that creates the cause of action. Mottley. ergo. the court held that Section 1331 did not extend federal jurisdiction to the full Article III limit.Supreme Court Rule from St. Paul Mercury Indemnity Co. no federal jurisdiction. • The amount may be measured either by o (1) The Plaintiff’s losses OR o (2) The profits unjustly received by the defendant. • This helped deal with the congested docket overload following the Civil War T. Private Rights of Action – p. p. 307 – these are suits brought by private litigants against private persons allegedly acting in violation of a statute. ALSO o (3) Punitive damages may be included if permitted under controlling law Note 7 – The Value of Injunctive Relief – • Some courts use the rule that only the value to the plaintiff may be used. not ecclesiastical cases. Is the plaintiff “one of the class for whose especial benefit the statute was enacted? • 8 of 36 .: The sum claimed by the plaintiff controls if o (1) The claim is apparently made in good faith. • Others apply the “either viewpoint” rule Diversity cases generally dismiss probate and domestic-relations for lack of subject-matter jurisdiction. 1964 cert. this isn’t true though. 77 n. it is doing one or more of those things which the Act reserves exclusively to the copyright owner. 303 – (The Creation Test) • Infringement does not include everything that may impair the value of the copyright. Harms v. They treated domestic relations as a matter of statutory interpretation. question dispute wholly over the facts. Co. Cort v. 297 • In this 1824 seminal case for federal question jurisdiction Marshall decided that when the congressional act chartering the bank authorized it to sue and be sued in any Circuit Court of the United States that this included all federal courts. p. Ash. 299 • Showing that a constitutional defense will probably be raised is not the same as the cause of action arising under the Constitution • Though the language tracked the language of Article III. FEDERAL QUESTION JURISDICTION Osborn v. • This case seems to imply that all the federal courts do is statutory interpretation. not constitutional prohibition. 307 – four-part test for determining whether a private right of action should be implied from a federal statute that does not expressly provide for a private remedy 1. v. The Supreme Court in Ankenbrandt upheld this distinction. p. Bank of the United States. • The crucial issue is whether or not Eliscu executed the assignment to Dreyfus. Louisville & Nashville R. but limited it to divorce. AND o (2) It appears to a legal certainty that the claim is really for less than the jurisdictional amount to justify a dismissal. see E&E p. 5 re: a fed. not the interpretation. This interestingly stems from the idea that they only hear civil cases.
Merrell Dow Pharmaceuticals Inc. Is the cause of action one traditionally relegated to state law.g. albeit discretion cabined under the Gibbs factors Executive Software. Marshall.C.S. s.2. Thompson. p. see e. Rule: State courts can hear federal cases except when the federal statute explicitly says that the cases have to be brought in federal court. the court backed off the Cort test and said that it is just a matter of statutory construction. § 1367(a) – District courts have jurisdiction over related claims that are part of the same case or controversy under Article III. 307 • The court authorized a damage action against a federal official for 4th Ammendment violation despite no congressional authorization. Blackmun) • Under Smith. Lewis • In this case. 312 footnote 12 Dissent: (Brennan. in an area basically the concern of the States. Is there any indication of legislative intent. • Penrose: There is no clear test for “same case or controversy” • It could be (1) nucleus of facts [Gibbs] or (2) close in time or scope or space or (3) part of a continuum of events. 343 Rule: The court must set forth the Gibbs factors before using discretion. Is it consistent with the underlying purposes of the legislative scheme to imply a remedy for the plaintiff? 4. there may be federal question jurisdiction even though both the right asserted and the remedy sought by the plaintiff are state created. Six Unknown Named Agents of the Federal Bureau of Narcotics. • The court instructed the Court of Appeals to develop the details on remand. either to create such a remedy or to deny one? 3. 1338(a) regarding patents and copyrights 2/17/11 Supplemental Jurisdiction (§ 1367) There are three doors to the federal courthouse.. White. v. Bivens v. p. 309 – (5-4 split on Fed Question) • “Federal question jurisdiction would exist only if plaintiffs’ right to relief depended necessarily on a substantial question of federal law. two front (1331 and 1332) and one back (1367) Supplemental jurisdiction requires discretion.” • Cites Holmes creation test • The issue of the “litigation-provoking problem” where a vindication of a right under state law turns on a construction of federal law • The court finds that “the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently “substantial” to confer federal-question jurisdiction. etc… 9 of 36 . • Brennan points out that federal question jurisdiction and private federal remedies are not interrelated issues with the same reasons behind withholding both. so that it would be inappropriate to infer a cause of action based solely on federal law? Transamerica Mortgage v.” • The court distinguishes Smith and Moore on p. p. explicit or implicit. 28 U. • Brennan believes that the court decided that there is no private cause of action only because the parties made a similar assumption.
you don’t have to raise it in the answer. p. or raise it at any time during the litigation. OR 4. unlike the compulsory one. United Mine Workers of America v. • Third-party complaint: A ∆ asserts a claim against a third party. or third-party complaint. REVERSED Owen Equipment & Erection Co. o Permissive: A separate and unrelated counterclaim that is not covered under res judicata and you could raise it in a whole separate suit if you wanted to. p. the court finds that the lower court did not have to dismiss the state claims. but rather a court’s discretion in providing (1) judicial economy. turning the ∆ into a third-party п.(2) convenience and (3) fairness to litigants • Factors to consider include (1) whether there’s a state law hegemony (2) jury confusion in applying two sets of laws (3) insubstantiality of the fed claim (4) early disposition of the fed claim • Additional Rule: Though power over the claims is established in the pleadings. is not a plaintiff’s right. then. Wholly owned subsidiary of the same mining company hires Gibbs to open a new mine nearby using a different union.” Ancillary Jurisdiction = “Either a plaintiff or a defendant injects a claim lacking an independent basis for federal jurisdiction by way of a counterclaim. 324 = “When the plaintiff in her complaint. • Cross-claim: A claim asserted between codefendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim. Novel or complex issue of State law. appends a claim lacking an independent basis for federal jurisdiction to a claim possessing such a basis. You must raise it or lose it. 2. however. Gibbs. cross-claim. • Counterclaims o Compulsory: One where it is in the same action/transaction or whatever and you have to raise it in order to resolve the complaint. All original jurisdiction claims have been dismissed. • Rule: Pendent jurisdiction. the fed courts have the power to hear the whole deal. p. Kroger.” • Hurn decided before Fed Rules of Civ Pro merged law and equity and at the time. 3. Gibbs cannot open the mine and loses his job and can’t get other work because of the whole UMW incident. though the Hurn court meant it as the same limits of res judicata. v. § 1367(c) – District Courts can decline supp. the court may exercise their discretion sua sponte anytime throughout the litigation • Ultimately.” – This is wrongly narrow. if: 1. • Hurn v. and also that Tennessee law doesn’t allow the conspiracy theory. 332 10 of 36 . assuming substantiality of the federal issues. UMW workers show up and cause an armed ruckus. there are other compelling reasons for declining jurisdiction Pendant Jurisdiction. 325 • Facts: Mine shuts down and puts 100 UMW workers out. Substantially predominates over the original jurisdiction claims. jur. Oursler: “state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law.§ 1367(b) – You cannot join parties if it destroys complete diversity. if P would “ordinarily be expected to try them al in one judicial proceeding. • Reasoning: Courts have read Hurn unnecessarily narrowly to be limited to cases where the federal and state claims are “little more than the equivalent of different epithets to characterize the same group of circumstances. applies when (1) the entire action comprises but one constitutional “case” (2) the federal claim has substance sufficient to confer SMJ (3) The state and fed claims must derive from a “common nucleus of operative fact” • In summary. • Pendant jurisdiction. instead. In exceptional circumstances. the meaning of “cause of action” was disputed.
e. Only ∆s can remove 2.. C. i. but instead of “common nucleus of facts” congress used the term “related” Executive Software North America. ∆ can get around it as a third-party п.This case elucidates the rule in § 1367(b) that п can’t do through 1367 what they cannot do through 1332. it is transfer. v. make yourself look underhanded by doing something stupid like trying to claim 75k when you sue on a 100k contract. Note 1 – Executive Software says that “section 1367(c) provides the only valid basis upon which a district court may decline jurisdiction and remand pendent claims” p. of course. Use § 1441(b). (2). • This is based on a reading of the word “other” in (c)(4) that indicates that the (1). Removal is vertical only 3. however. (Don’t. Claim > 75k. Removal” for more information. if Substantial part of ∆ subject to ∆ may be AISS events or property PJ. but if original п ever ammends their complaint in a way that destroys complete diversity then § 1267(b) kills the lawsuit.. The Mottley well-plead complaint rule applies. courts were hung up on the single or multiple causes of action language and some courts were finding cause of action to mean theories of recovery. All ∆s must join the removal motion unless they have a separate and independent cause of action 6.” it’s generally accepted that this section invokes the Gibbs test. 370 – the different venue statutes – nexus Removal (§ 1441) Moving from federal court to state court is not removal. to artful pleading doctrine 4. if no found. if no alternatives alternatives (a) Solely on diversity X X X (b) Not Solely on X X X 11 of 36 . Note 3 – After Hurn. non-nominal party 2. even if you could claim more. Cal. 343 • The Gibbs factors are no longer enough on their own. There are six main rules of removal: 1. § 1441(b): Local ∆ being sued solely on diversity cannot remove There are four main ways to make a case removal-proof: 1. Transfer. Add a non-diverse. and Forum Non Conveniens § 1391 Always ask yourself. you have to have them and explain why there’s an exceptional need to decline to hear the case. Inc. the plaintiff’s complaint controls… subject. “Is it solely based on diversity or diversity plus something?” ∆ Resides. sue a ∆ party-in-interest in their homecourt See “Week 5. p. • 2/22/2011 Venue. but Gibbs clarified that “causes of action” are unimportant and the key is “fact relatedness” Note: § 1367(a) defines SJ as including claims that “form part of the same case or controversy. ∆ has thirty days from notice of service to remove (30 days) 5.) 4.D. and (3) reasons must be compelling • Dissent: The statute doesn’t force the court to exercise jurisdiction. Exclude all federal claims from your complaint 3.
diversity Corporations: (1) venue where there’s PJ. in the interest of justice. Barrack. 374. Local Action Doctrine: • There are local and transitory actions and the local action doctrine applies to local actions. a district court may transfer any civil action to any other district or division where it might have been brought. then any districts that would have PJ if they were a state. in the court’s discretion. • The trial court didn’t allow it. Heiman. Co. to any other court within the same district § 1404 must be so much more convenient as to venue as to justify disrupting п’s choice. then the transferee law applies • Van Dusen applied to diversity. 389 – Supreme Court • п filed in a state with a long statute of limitations because their suit was time-barred where they watned to bring it. The action had to have occurred locally because it injured local land. • Local actions are ones involving injury to a particular piece of land. • See p. indirect intent Hoffman v.G. • Penrose: Organizations like the ACLU may or may not be incorporated Bates v. p. Inc. 388. • Brennan (of course) Dissents: Points out ambiguity of the language. 388 Nat’l Psto. 386. THEN filed a 1404(a) and had it transferred back where they wanted it. 381 • Courts do not look to the individual residences of unincorporated association members. 389 – Supreme Court • § 1404 transfer = transferor court’s law applied • § 1406 = transferee court’s law applied • If you transfer in order to cure a defect. and the Supreme Court reversed. 3 for in-depth interpretation of Hoffman.. Bruce Anton.) § 1406 (a) If a case is filed in the wrong place. • Penrose: Take from this case that ∆ can’t do what п couldn’t do originally. p. you can transfer. appeals affirmed. See p. n. (p. C & S Adjusters. See Denver & R. See Reasor-Hill Corp. (2) if multiple districts. Blaski.. 390 – Supreme Court • The court can rule on a 12(b)(3) before considering a 12(b)(2) if you file both. p. 381. 383 – Supreme Court • Majority: “might have been brought” in § 1404 means where п could have brought it originally. the parties can waive their rights to object to proper venue § 1406es are filed to cure defects. See p. there’s some dispute about whether it applies to FQ. p. A transitory action could have happened anywhere. 378 • “Substantial part” probably doesn’t require fault and can require vague. then the court may dismiss or transfer it. 389 Ferens v. p. (3) otherwise in the district with the most significant contacts § 1404 (a) For the convenience of parties and witnesses. Goldlawr. 2. (b) If all parties agree.R. John Deere Co. v.W. sticking to their Van Dusen guns in the face of apparent specious choice of law maneuvering. p. p. Van Dusen v. • Penrose: Local action doctrine has mostly been engulfed by statutes Citizenship/Residency for Venue Diversity: See n. Inc. (if justice requires) (b) Even if the filing is wrong. Forum Non Conveniens 12 of 36 .
8. Ricky Martin Hypo: Remember to ask about forum selection clauses! Forum Selection Clauses and Venue: The clause waives your rights to both PJ and Venue. 403 – The Goldlawr case rule applies to forum non conveniens as well as 12(b)s Penrose’s Forum Non Conveniens checklist: 1. Gulf Oil Corp. Federal courts transfer to other federal courts. Venue is a hybrid. expeditious and inexpensive 5. Possibility of view of the premises. Federal courts have applied it to international cases. State courts transfer to other state courts. Furthermore.Forum Non Conveniens is a doctrine separate from § 1404 and 1406. Federal Democratic Republic of Ethiopia. You are always applying for a dismissal with FNC. Many states recognize it. no one getting jury duty wants to do an all-Brittish trial. The alternative forum must be functional. they are a resident of every state. Reyno. if appropriate to the action 4. See § 1404. Relative ease of access to sources of proof 2. Factors of public interest like administrative congestion 6. The Gilbert factor test: 1. p.S. 392 • п's choice of forum (due to strict liability laws) does get some weight. 06. Availability of compulsory process and cost of paying witnesses to come 3. Unless the balance is strongly in favor of the defendant. but the trial court gets wide discretion on weight and the weight assigned gets significant deference on appeal • Bottom line: No one wants to force U. but similar to the premise of 1404(a). v. BUT. Rule: Courts may condition forum non conveniens dismissals on a defendant’s waiver of a defense to being sued in the foreign forum. 391 – The Supreme Court factor test for forum non conveniens. never a transfer and the dismissal can be conditioned on ∆ waiving defenses to suit in the foreign forum. taxpayers to pay for a trial where everyone involved is Brittish. p. § 1404 = transfer § 1406 = transfer Forum Non Conveniens = dismissal (conditional on waivers) 12(b)(3) = dismissal § 1441 = removal 13 of 36 . Nevertheless. n. See § 1391(c). Private and public interests are at stake Can a federal court transfer a case to state court? NO!!!!!!! Federal courts remand to state courts. Nemariam v. 402. John Moore Hypo: Remember that FedEx might be a citizen of DE and TN for PJ. 9. Alternative forum with functionality 2. See p. State courts remove to federal courts. p. The court may still use judicial discretion in the interest of convenience and justice over venue. the court has discretion over venue based on convenience and justice. • Personal Jurisdiction = personal right that is waivable • Subject Matter Jurisdiction = institutional right that is not waivable • Venue = Both personal and institutional right hybrid. Gilbert. but for Venue. You can waive your right to object to venue. the plaintiff’s choice of forum should rarely be disturbed Penrose: Filing for a forum non conveniens presupposes a better alternative forum. See n. p. All other practical problems that make trials easy. 3. Piper Aircraft v. 402. • Marshall isolates the connections to Scotland and focuses on them to make his point.
p. 419 pointed out by Penrose for more explanation and quotes. Note 1. p. then it often seems like a procedural issue and the Fed. • Erie hints at being a constitutional issue (Supremacy Clause). Tyson. Erie R. Int. Most people think it’s ambiguous. btw. 408. n. v. Inc. The “brooding omnipresence” of reason has been cast aside. Interest the highest possible weight. instead of dismissal. the court is unlikely to use their discretion and more likely to hold you to your waiver. o The 7th Amendment right to jury trial gives the Fed.. o York is low when the issue is whether a judge or jury should decide the merits. the court has discretion to order mediation at any point. 1. 1842: Interpreted the Rules Enabling Act § 1652 as applying only to the statutory law of the states. the outcome test either makes almost nothing procedural or is ambiguous. > In state court. York. but it probably isn’t. 418. They can act to offset the Strength of the Federal Interest in applying the Byrd balancing test. it is substantive and applies. Interest side wins. (1) discouragement of forum-shopping (2) avoidance of inequitable administration of the laws > The 7th Amendment guarantees a jury trial in cases over $20. p. v. Ergo. the majority didn’t think that they were overruling it. if you wait too long. Swift v. > In federal court. o The Twin Aims of Erie are listed below. 405. try for transfer via the other methods. ¶ 4. 424 – (Brennan) • This case sets out the Byrd Balancing Test which either greatly modifies or supplants the York Outcome Test. 14 of 36 . p. however. > The Erie dissent thought that the majority overruled the Rules of Decision Act (1652).” 2/24/2011 Erie doctrine part I The Essential Erie Rule: In diversity cases and claims. o York does a poor job of explaining the difference. when York is low and to York when York is high. o “The operation of a double system of conflicting laws in the same State is plainly hostile to the reign of law. • Byrd Balancing Test aka “relatively unguided Erie”: This is like a see-saw with the York test on one end and the Strength of the Federal Interest – The Twin Aims of Erie on the other end.” – p. Tompkins. • Frankenfurter’s exposition on law: Law is now law because it was made law previously. Law is no longer derivative of reason. Guaranty Trust Co. 410 • Policy concern: Noncitizens unfairly imposing non-forum law on forum citizens. 414. though. p.” o See highlighted text on p. 1938) • “There is no federal general common law. (Brandeis. parties have a right to object to mediation. Co. p. 421 discusses whether Statutes of Limitations are procedural or substantive. See p. • The York Outcome Test: If state law affects the outcome. Ties probably go to Fed. You must do it timely. not the general common law derived from reason (Frankfurter’s York description). Blue Ridge Rural Electric Cooperative. federal courts must apply state substantive law and federal procedural law. Byrd v. as does any constitutional concern. You can still. 416 • Basic principal: The courthouse door you walk into should not determine your case.Penrose: “12(b)(2) and (3) refer to waivable personal rights. o If the York side is low. but if it doesn’t then it is procedural and the federal version applies.
it can create rules for them to a certain extent. The final will only have either a. Constitutional analysis (Art. or practice i.P. then > State Way ii. Diversity? 2. Statute i. p. If no. If yes. which all have virtually the same or similar analysis OR d.C. which requires a completely different seesaw analysis. enlarge. Does the rule “abridge. F.P. In applying traditional methods of statutory interpretation. • Multiple states is a choice of law issue that transcends Erie Sibbach v. • No one would choose federal court over state court because service of process is slightly easier.R. such that it precludes the state way of doing things. Constitution > Federal Way b. what is the source of the federal (not the state) law? a. (This is a less-than-straightforward interpretation of the REA. I [legislative] and III [judicial]) > Congress can create lower courts. b. does the scope of the federal law encompass the issue. Wilson. shall be regarded as rules of decision in civil actions in the courts of the United States. “Is the rule arguably procedural?” d. the federal and state ways are mutually exclusive? i.” The Rules of Decision Act (28 § 1652) (1789): “The laws of the several states. > “Direct Conflict?” I. 431 (1965) • Erie cannot be used to void a F. Form.) Hanna v. Only some outlying issues are d.” (b) “Such rules shall not abridge. you will not get points for both.. must either (1) go to the merits of the case or cause of action in a way that is seemingly not procedural or (2) be somehow more important than the bodily integrity of a compulsory physical exam. This case states the twin aims of Erie. mode. The federalism concerns discussed in the Harlan concurrence in Erie include: 15 of 36 . b. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” Erie Doctrine. Does power to make the rule exist? 2. Is the federal way statutory or constitutional or common law? In other words. then > Rules Enabling Act analysis § 2072 1.” • The right therefore.The Rules Enabling Act (28 § 2072) (1934): (a) “The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts and courts of appeals. Furthermore. or c. or modify state substantive rights?” c. if “bodily integrity” isn’t a substantive state right. Plumer. except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide. 439 (1941) • We talked in class in some depth about Sibbach and how. enlarge. if you do both analysis. or c. “Direct collision?” Is the law on point? ii. or modify any substantive right. Are the federal and state laws different? 3. ergo. then what is? • Justice Roberts said that taking into account “the importance of the alleged right” would “invite endless litigation and confusion. or in other words. > See the Rules Enabling Act § 2072 and ask yourself.C.e. p. part II 1.. in cases where they apply. Apply the Rules of Decision Act and use modified York/Byrd analysis (the see-saw) Exam tip: Most issues are a.R.
no discretion. Admitted if not denied 4. inconsistent. freedom to experiment 2. v. 3. or hypothetical pleadings always allowed and are not concessions 16 of 36 . not likely or probable o Balancing test with notice pleading on one end and in terrorum concerns on the other.” This seems to imply that the rights are co-extensive with the merits of the case… Stewart Organization.1. Must raise affirmative defenses (See tests on page 285) • Alternative. independence as a source of strengthened protection of rights 5. “a civil action is commenced by filing a complaint with the court. Demand for relief • Four answer Rules 1.” SCOTUS says that that does not indicate language of a scope broad enough to encompass the ending date of a state Statute of Limitations. Specific. but must be lack of both info and knowledge Reasonable investigation and honesty-in-pleading reqs. Ipso Facto. or Qualified General o Can plead idk. plausible. Short and plain SMJ 2. Inc. the superior democratic pedigree that comes from closer contact with the citizenry Walker v. Admit or deny each allegation o General. RICO or Antitrust claims. Woods. 442 • When Rule 3 says. Co. 1404(a) allows for discretion (justice and convenience). p. then those are mutually exclusive and ipso facto in “direct collision” • Justice Marshall: Rule 38 “affects only the process of enforcing litigant’s rights and not the rights themselves. Short and plain entitlement to relief o Twombly: Beyond speculation. Armco Steel Corp. 447 • If the issue is discretion v. v. flexibility in tailoring regulation to local needs 3. York Outcome Determinative Test Federal Interest in light of the Twin Aims of Erie 2/10/2011 Pleading Rule 8 • Three pleading requirements 1. p. p 448 • Alabama won’t enforce a forum-selection clause. decentralization as a strategy to minimize factional control 4. 3. Burlington Northern R. SCOTUS holds that the district court MUST look at fairness and convenience because 1404(a) plainly demands it. Short and plain defense for each claim 2... Ricoh Corp. there is no “direct conflict” and state law controls. resulting in different standards for simple tort injuries vs.
4. impertinent. Stores.” You. particularly deny them • (d) You need to allege official docs are legally issued or done and that is sufficient • (e) In pleading judgment of any court or tribunal. Why. p. providing notice of the nature of a claim or defense. Cook. The Four Functions of Traditional Pleading 1. and When components. p. therefore you cannot file again if you lose it. essential and ultimate facts upon which п’s right of action is based” • Holding: No. the last three are handled through discovery. immaterial. res judicata 12(b)(7) = failure to join a party under Rule 19 Texts and emails deleted can be subpoenaed from the company. What. the case is decided. 2. Notice Pleading Code = Field Code derivatives: E. then label it “negligence. 559 17 of 36 . need to be set out in order to pick the law to apply. or existence of entity • (b) You can generally allege mind conditions for Fraud or Mistake • (c) Generally allege conditions precedent happened.” Dioguardi v. Statements of Fact in Pleading under the Codes. Penrose: Twombly seems to judicially broaden Rule 9 because it is somewhat inconsistent with notice pleading. Durning. redundant. • 12(e) = motion for clearer statement • 12(f) = motion to strike (can be sua sponte.g. 291. it needs the Who. Supp. 556 • Logic alone (and semiotics) cannot tell you whether. Notice = Under notice. identifying baseless claims. 3. or scandalous stuff) 12(b)(6) = failure to state a claim upon which relief can be granted – This motion is on the merits.Rule 9 • (a) You don’t have to plead capacity. Baseless claims are dealt with by a short and plain statement together with a certification of non-frivolity. Twombly’s plausibility standard overruled the “beyond doubt that п can’t recover standard. authority. including some reasoning. who apparently stores them!?!? Who knew? Gillispie v. Where.” • 12(e)s and 12(f)s are disfavored. must be filed before response [alternatively w/in 21 days] can be done for insufficient. “B owes A $500” is a “conclusion of law” or an “operative fact. can plead judgment without showing jurisdiction to render • (f) You need to put time and place in there • (g) You must plead special damages • (h) Admiralty.” Accomplishes all four. p. instead. p. must connect the facts to the elements of a negligence theory. see p. 2. 558 – Code v. setting each party’s view of the facts. • Reasoning: The facts comprising the legal theory. 555 • Facts: п alleged that ∆ caused her to be in jail and she suffered humiliation and ridicule • Issue: Is this a “plain and concise statement of the facts constituting a cause of action?” • Rule: You need “the issuable facts” and “the material. Goodyear Serv. The Principals of Transnational Civil Procedure require “a fuller statement of the facts and evidence supporting the claim. o Example: You cannot say something happened. narrowing the issues N.
go ahead and dismiss?” > sounds pretty persuasive to me (go figure… its Stephens…) • The Majority cites a 1989 law review article concluding that trial judges are impotent to curb discovery abuse due to a lack of information.. yet equally vague. a complaint must suggest entitlement. 579 • Allegation of defamatory publication followed by judicial proceeding statement that was unquestionably absolutely privileged as a matter of law • 12(e)s are disfavored • They require. facts as to why you are a member of a protected class may or may not need be set out Swierkiewicz v. e. Twombly.g. 595 18 of 36 . Iqbal (2009) established that Twombly was not limited to antitrust. 583 – Given the theory of notice pleading. “Why not take a deposition from one exec. A. Los Angeles County. Bautista v.• Facts: Pro se pleads some incomprehensible thing about tincture imports being seized and sold off. then. Maj.S. 568 • A 12(b)(6) basically claims a violation of Rule 8 or 9 • Twombly vitiated Conley. if it still doesn’t seem plausible. p. did not state why it concluded that the complaints showed no claim upon which relief could be granted and the U. seems to be the divisibility of discovery. Hilton Hotels Int’l.. (3).C. Ashcroft v. Rule 10(b) requires numbered paragraphs. Sorema N. Attorney’s brief for ∆ just prognosticates that “the most cursory examination of [the complaints]” proves the dismissal.. 3/22/2011 Alternative and Inconsistent Allegations are allowed. there is not pleading requirement of stating “facts sufficient to constitute a cause of action” • Holding: п entitled to his day in court • Reasoning: The D..” It also asks different transactions and occurrences to be separately numbered “if doing so would promote clarity. as dissent might suggest. car accident = very concise. (2) qualification for the job in question. Dismissed for “fails to state facts sufficient to constitute a cause of action. says its indivisible. v. rather than avoiding foreclosure of relief. Dis. p.. antitrust or RICO = facts need to be set out that go beyond ambiguity as to culpability • See Supp. • Prima facie case ≠ the pleading standard • Unlikeliness of ultimate recovery is not the test Bell Atlantic Corp. Appealed yet more volubly.” must “point out the defects and details desired. p. a 12(e) will be denied when the information sought is available through discovery.” Vociferously redrafted and dismissed again. p. from each corp. In terrorum complaints. “so vague or ambiguous that the party cannot reasonably prepare a response. says. supplanting the “beyond doubt” standard with “plausibility” • Effectively. Royal Packing Co. 1. Garcia v. inter alia.” – Rule 12(e) N. and Dis. 564 • The trial judge might need to offer guidance on how to amend the complaint before dismissing with prejudice • Also. 369. p.” also “14 days after notice or time set by court. also. pleading may be struck or other appropriate order.” Ziervogel v. p. 565 • Court of Appeals says you must allege (1) membership in a protected group. seem to be a primary concern. • This flexible standard changes with the cause of action. Rule 8(3) is often construed to require separate causes of action and defenses to be separately pled. p. • Rule: Under the new rules of civil procedure. Rule 8(2). Inc. (3) an adverse employment action. It asks “as far as practicable” for each paragraph to be limited “to a single set of circumstances. and (4) circumstances that support an inference of discrimination. • > The initial complaint took four years to have its sufficiency settled!?! • The issue between Maj.
noscitur a sociis the catchall was limited to the terms listed and didn’t cover the raised blood pressure. • General damages = the “inevitable and necessary result” of the injuries set out in the petition. Relief to Be Granted.g. rules. they are read like general damages. • Also. appellate affirmed without quoting fed. I. or exceed in amount. denied. then you cannot dismiss with prejudice. p. trial court set asside. Responding 12(b)(1)-(5) = not on merits 12(b)(6) = on the merits. not on the pleading. 601 • п asked for punitive damages a week before trial and got 5 mil. 598 – if special damages might result from a contract breach. 599 • Under Rule 54(c) ad damnums and all pled damages are nothing more than recommendations • As long as п argued 100 and ∆ defended 100. Bail v. 3.g. p. 603 – Posner – Motion to Dismiss for Failure to State Claim • If a party pleads 19 alternatives and the twentieth alone has merit. E.Actual notice was held insufficient. Mental anguish and counseling 3. cert.. essentially. of too little. E. what is demanded in the pleadings. Anheuser-Busch v. you still have to plead them. even if the other side has actual notice of special damages that you are arguing for. damages that the ∆ would want to be put on notice about so as not to be prejudiced by not being able to put together an argument in response to it o Penrose tip: You can plead too much or too little. p. general denials never work. there’s no (1) indication of passion and prejudice on the jury’s part or (2) indication that the damages were excessive. the natural results of the act • Special Damages = Basically. N. this case where they pled with a catchall phrase at the end and due to. if the jury awarded 150k then 150l is fine under Rule 54(c). [I’m not sure that I agree with that statement] Common Special Damages include: 1. Medical expenses (outside of hard bills) 4. in other words. p. See Rule 8(d)(2). Illinois. American Nurses’ Ass’n v.e. formerly known as the demurer. Inc. of too much. assuming Rule 9(g) [special damages] was complied with. pleading “everything I’m entitled to” doesn’t give notice and winds up being construed as a general prayer. • 19 of 36 . Penrose: Rule 9(g) [special damages] seems to carve an exception out of Rule 1. Cunningham Brothers. demurrers still exist in CA The design of the FRCP is to resolve cases on the merits. you have to inform the other party that the special damages might result. Every other final judgment should grant the relief to which each party is entitled. Johnn Labatt. Also. Attorney’s fees 2. Loss of reputation Federal Rule of Civil Procedure 54(c) Demand for Judgment. even if the party has not demanded that relief in its pleadings. A default judgment must not differ in kind from.
p. • All the 12bs except 6 are equivalent to the common-law Plea of Abatement Motion for Summary Judgment (Rule 56): No genuine issue of material facts and entitled to judgment as a matter of law. • Normally. The Answer Rule 8: You can only (1) Admit. Penrose: The minuet you look outside the complaint. 12(c) is for Judgment on the Pleadings. (p. p. post-answer. Denials Rule 8 requires a defendant to make one of three responses to the contents of plaintiff’s complaint. Also. 12(b) (6)es [failure to state claims] get filed all the time and courts frequently conditionally grant them with the condition being a 12(e). It must be in good faith and only in situations in which everything in the complaint can be denied legitimately. (1) Admit. You can move for it at the close of pleadings. most states don’t) The three-part 12(b)(6) Rule: (1) only look at the complaint (4 corners).” Cobell v. You can file motions to strike on late pleadings and ones that don’t comply with some rule. Rule 15(a)(1) (maily п’s rule): “A party may amend its pleading once as a matter of course at any time before being served with a responsive pleading…” Rule 15(a)(1)(B) (∆’s rule): ∆ has a free twenty day window. (2) All п’s facts are assumed true. can be sua sponte The court may strike from a pleading an insufficient defense or any (1) redundant. (2) Deny. I. Shaw v. The general denial is discouraged. 12(d). they get a chance to amend and/or cure. Kortum v. 612) If the court • 20 of 36 . defendants often use a catchall paragraph denying each and every averment of the complaint unless otherwise admitted. (3) All inferences drawn in п’s favor. 612): You cannot answer that the “documents speak for themselves” To avoid default admissions. Rule 4 expresses a strong preference for waiver of service and imposes a duty on ∆ to do it when asked by п. Using general denials is risky. the plaintiff gets one chance to amend. Merritt-Chapman & Scott Corp. (p. it must be obviously false and unrelated to the subject matter of the action.e. 611 – 12(f)s • 12(f)s are often dilatory and prejudicial and are rarely granted. Raffles Holdings. it becomes a motion for summary judgment. p. Inc. (3) plead insufficient information. Rule 12(a)(1)(A)(i). (2) immaterial. Penrose: unusual. but early enough not to delay trial. to amend. Further more. or (4) scandalous matter. with damages being expenses by п in making service and expenses incurred in collecting expenses. v. The “Speaking Demurrer” (CA allows this. 611 – 12(f)s • “To strike as scandalous. which has the effect of a denial.. (3) impertinent. 609 • Absent specific language to the contrary by the district court. Norton. post 12(b)(6). (2) Deny.Penrose: Courts can sua sponte order a 12(e) [more definite statement]. ∆ gets 60 days to answer instead of 21.. Motion for Judgment of the Pleadings (12)(c): Motion for Failure to State a Claim 12(b)(6): Gateway Bottling. 12(f) Motion to Strike: disfavored. Dad’s Rootbeer Co. or (3) plead insufficient info (Rule 8(b)(5)). a Rule 12(b)(6) motion constitutes an adjudication on the merits. Ltd.
injury by fellow servant. statute of frauds. that the plaintiff has brought an action against her arising out of a given set of events. that the suit against the original party was filed.. but not “so lacking. – Glannon Consequently. 2. Rule 8(c) (Affirmative Defenses/Avoidances): These must be raised specifically and they are either (1) concern allegations outside п’s prima facie case. it might be impliedly pled) Rule 15 does two things: (p.99. “The court should freely give leave when justice so requires. 612 • General denial.” it may deem defendant to have admitted plaintiff’s specific averments. duress. Rule 15(c)(1) provides that amendments relate back as long as the new allegations arise from the same litigation events as the original pleadings. Rule 8(b)(5) allows denial for lack of info. transaction or occurrence as the original one. ∆ deserves to dispute the issue and their diligence was lacking. a party can amend with (1) written consent of the other party. • Other factor for judicial discretion: The same insurance company covered the true owner of the forklift. within a prescribed period of time. but under Oliver. you can’t do this is the matter is “presumptively within ∆’s knowledge. and waiver. Rule 15(1)(C) provides that amendments adding a new party do not relate back UNLESS (1) the claim arises from the same conduct. the original suit would have been against him.” • On these facts. 623) 1. or (2) leave of the court. we don’t know how long the SoL is in their homecourt.decides that the general denial doesn’t “fairly respond to the substance of the allegation. release. • Because the SoL had run. Examples include: accord and satisfaction. it might be considered “evasive” and counted as an admission. 623 • Rule 15 discretion: One hand.” The purpose of a limitations period is to provide notice to the defendant. Aquaslide ‘N’ Dive Corp.999. contributory negligence. Turns out later. Conjunctive Denial: If you deny using п’s exact words. Permissively allows amendments in order to make sure that trials are decided on the merits and not on procedure. Inc. statute of limitations. Under Rule 9. but since we don’t know where the real slide maker is. Courts look at statutes and state practice to decide if a defense is affirmative. п’s claim might be barred by the SoL here. Negative Pregnant: If п alleges you owe her 89k and you deny owing her 89k. that’s a negative pregnant and you might have admitted to owing $88. Rule 15(b) allows amendments at trial if a party will not be prejudiced on the merits or if the parties expressly or impliedly consent to try the issue. п would be prejudiced by an amendment or construction whereby the general denial somehow denied ownership of the forklift. failure of consideration. (If parties dispute an issue. capacity and conditions precedent must be challenged specifically. but for mistaken identity. but suggests another reason for no recovery. AND (3) the new party knew or should have known that. payment. fraud. laches.” See p. within the filing date plus 120 days. the court comes to the opposite result from Zielinski and allows the amendment. Other hand. not cause of action. 617. OR (2) admits the allegations. p. assumption of risk. (2) the new party had notice. Amendments Rule 15(a)(2) governs Zielinski and Beeck. It underscores the principal that fact revelation and issue formulation occur in discovery Zielinski v. that the forklift that injured п wasn’t even owned by ∆. Philadelphia Piers. Furthermore.. 21 of 36 . It says that in any case. This raises issues of potential tactical maneuvering and a 15(a)(2) justice analysis. estoppel. Beeck v. arbitration and award. illegality. p. license. res judicata.
p. Hadges v. (in one court) cannot support the denial of a request to amend. an answer to a third-party complaint. 627): A motion to dismiss doesn’t have the same effect as a response on Rule 15(a). the rule became reasonable inquiry under the circumstances plus nonfrivolous plus factual contentions have or probably will have evidentiary support plus no harassment. Adams v. • Examine the record to see if the parties impliedly contested a matter and had notice that the matter was contested and opportunity to litigate without undue surprise. • The facts indicate that the failure to name was due to a lack of diligence in learning the names. then you can bypass the SoL. p. • In 1983. 618 • Rule 60(b) says that final judgment may be cancelled for.. Moore. mistake. Brilliant to point out that she’s getting ripped off on some stocks. void judgment. technical failure to comply with Rule 8(c) is not fatal. 627 (D. Moore v. p. p. which is to get things to the merits and not bog them up in procedure. Yonkers Racing Corp. • Rule 11(3) allows sua sponte judicial sanctions.) (Implied Consent under 15(b)) • The court looks at the purpose of Rule 15(b) being to put the parties on actual notice of unpleaded matters that are being litigated and provide (1) adequate opportunity to litigate and (2) to cure any surprise from introduction of new matters. 629. The Relate-Back Provision of 15(c): If the amendment relates back to the date of the original pleading. fraud. p. an answer to a complaint. new evidence. p. 6 – Delay alone. 5 N. an answer to a crossclaim. the rule became reasonable factual and legal inquiry plus factually well-grounded and legally warranted plus mandatory sanctions • In 1993. a third-party complaint. This old lady relies on her nephew Mr. discharge of judgment. the rule was just that you had to plead in good faith. and if the court orders one. The damage cap was an “avoidance” for Rule 8(c) purposes because it alleged a new matter contrary to the ordinary legal effect. inter alia. She was allowed to rely on him to verify a pleading that was beyond her level of financial sophistication. Rule 7(a) only allows) a complaint. 636: This case illustrates the principal of the FRCP.Ingraham v. 642 – 2d Cir.” • Principal: Where an affirmative defense is raised in the trial court in a manner that does not result in unfair surprise. 630 (Suit against unnamed police officers) • Holding: Filing against people who you don’t know the names of isn’t a mistake. Quattlebaum (p. United States. • The principal of Rule 11 is to allow you to fix issues before sanctioning people Rule 11 • At first. This case holds Rule 11(3) to require a “show cause” notice (adequate notice) and opportunity to respond. 3/29/2011 Side note: Twombly’s plausible standard replaced the old “beyond doubt that п can’t recover standard” Surowitz. OR “any other reason that justifies relief. an answer to a counterclaim designated as a counterclaim. • Holding: Failure to plead a damage cap was fatal. its intentional and it does not serve to put the actual defendants on notice. prospective change not equitable. or cost 22 of 36 . Cit. delay. Worthington v. • The Implied Consent Rule. Wilson.C. n. a reply to an answer. App.
.increase plus instead of mandatory sanctions. Gross decided that fed court could not enjoin state court from allowing relitigation of an unasserted compulsory counterclaim. or. they are permissive and supplemental United States v. ∆ must do this within 14 days of their answer or obtain the court’s leave. For counterclaim purposes. (3) п can amend against third-party ∆ anything from the same transaction. 13(a) = Compulsory – 13(a) exception: already being litigated 13(b) = Permissive 13(g) = Permissive. You waive it forever if you do not raise it. p. Spectator Management. (2) Anything that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim” is compulsory. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? 3. The only important exception is when the compulsory counterclaim is already being litigated somewhere else. may file it with the court. Is there any logical relation between the claim and the counterclaim? → All courts agree that “same transaction” should be construed liberally to promote judicial economy. (4) Anyone can move to strike. Penrose: Rule 14 is usually used for indemnification. (2) third-party ∆ must treat ∆/third-party п just like a regular п (for Rule 12 & 13). while compulsory counterclaims under Rule 13 require “same transaction” which is virtually the same. courts use at least four tests for “same transacton” 1. 23 of 36 . • You automatically have supp. Rule 13 (1) Anything is allowed as a permissive counterclaim. Third-party ∆ now becomes just like a regular ∆ and must assert all the regular stuff and may assert all the regular stuff. Court held that the counterclaim amount could be added to SMJ. jur. limited by jurisdictional concerns. Judge: the court can issue a “show cause” order sua sponte and give adequate notice and opportunity to respond. p. Crossclaim: A claim for affirmative relief against a coparty. crossclaim 13(e) = these come after the lawsuit is filed. 668: Compulsory counterclaim asserted and no objection to PJ asserted. (2) waiver. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. then 21 days later. Counterclaim: A claim for affirmative relief against an opposing party.) requires “same case or controversy” (Art. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? 4. you have a notice and respond (usual response is a fix) opportunity Other Party: The other party can serve a motion for sanctions on you. or (3) estoppel. Third-party ∆ may assert defenses to п and may assert claims arising from п and ∆’s transaction that gave rise to original suit.. III). One court in Fantecchi v. sever or try separately. 658 – Rule 13 • This case lays out the “logical relationship” interpretation of the “same transaction” language of Rule 13. If you don’t raise a compulsory counterclaim then courts bar in later based on either (1) res judicata. “Anything” is. over compulsory counterclaims o Reason: 1367 (Supp. Heyward-Robinson Co. of course. Rule 14: (1) ∆ can bring in for contribution anyone who is or may be liable to it for all or part of the claim against it. Jur.
including contingent claims Permissive or Mandatory Mandatory Permissive Permissive Permissive Mandatory Basic Aggregation Rule: 1 п v. paid him off. Rule # 13(a) 13(b) 13(g) 13(e) 17 20 19 18 What it does/definition “same transaction. the insurance co. inter alia You can join anything. maybe to establish diversity or to look sympathetic.e. then п can’t assert supplemental claims that 24 of 36 . Jur. 1953 • Facts: ∆ negligently started a fire in п's tractor while servicing it. (b) If a claim is asserted against п. 13(b)s must have FQJ or meet the Basic Aggregation Rule for Diversity (I. then п can bring contributors in just like ∆ can under this rule..) what they cannot do through 1332 (Diversity)... i. multiplicity of suits 2. p. or be substituted in. 1 ∆: can add claims related and unrelated → Must consider in a 13(b) 13(a)s and 13(g)s always automatically have jurisdiction through § 1367. Penrose Rule: “п cannot do through 1367 (Supp. v. 675 Kan. counterclaims “same transaction. • Issue: Can ∆ invoke the “real party in interest” rule in Rule 17 to block the suit? • Holding: Yes. inconsistent verdicts 3. not one or the other. International Harvester Co.” § 1367 (Supp.(5) Third-party ∆ can plead in new third-party ∆s for contribution and start Rule 14 all over again. “same transaction or occurrence” is read the same as “same case or controversy.” In other words. you can add 13(a)s and 13(b)s to meet the RJA for the 13(b)s). is the real party in interest. join.e. п's insurance co. Rule 14 Policies: 1. Under Rule 21. if п’s complaint is solely based on diversity. There was a subrogation clause. Jur.” counterclaims Anything. the court cannot dismiss until giving a reasonable time for the real party to ratify. п sued ∆ in his own name for the use and benefit of the insurance company. the court can add the insurance company.” crossclaims Immature claim Real Party in Interest Rule. • Side note: Under Rule 17(3).) is “same case” + Codified Gibbs. just speedy and equitable resolution of cases 4/1/2011 Rule 17 (real-party-in-interest rule): (1) real-party-in-interest (2) reasonable time to join the real-party-in-interest (3) Capacity (a) individuals – law of domicile (b) corps – law of organization (c) others – law of the state of the court (4) lists “next friends” that can sue on behalf of and in the name of people Ellis Canning Co. of course.
dilatory. 688 – Rule 19 necessary v. or other reasons. • Reasoning: Loaner had an interest in having his 100k insurance fund preserved to cover potential liability of his. Rule 18: (a) You can assert as many claims as you have. • The “equity and good conscience” part of the test is not about “substantive” rights • Rule 42 (Consolidation and Separate trials): Both are allowed in the interests of economic. but when a complete determination of the controversy cannot be had without the presence of other parties. 2002 • Holding: (Rule 20 prong 1) The alleged repeated pattern of obstruction of counsel is “logically related” as “a series of transactions or occurrences” and (Rule 20 prong 2) the question of law or fact common to all is whether the “defendants have engaged in a common scheme or pattern of behavior” that denies legal right to counsel. the court must then order them brought in. o (4) Interest of courts and public in complete. but a decree can be rendered between the parties at hand. Tenet. p. Rule 19 (Compulsory Joinder): In a nutshell. and (3) prevent multiple lawsuits. reqs of § 1332 (Diversity)). See § 1367(b) (no jurisdiction when “exercising supp. then there are parties that might possibly be affected and might be necessary for a final and complete settlement. at any time. Provident Tradesmens Bank & Trust Co. Superior Court. was not “feasible” because joining loaner would kill diversity • Holding: The court of appeals erred in not allowing the judgment to stand. Court can sua sponte. That is the point of 19(b)(2)(B) shaping the relief. p. (b) You can assert contingent claims. The court can play with the relief.” but maybe not “indispensable. inconsistent relief. indispensable parties • Rule at common law: compulsory joinder for joint rights • New Rule: “when it can be done without prejudice to the rights of others. v.” There are truly indispensable parties where if you didn’t have them. • Rule 20 Policy: policy is to (1) promote trial convenience. His other trials where the other passengers are suing him are as yet undecided for unknown reasons. there’s some int’l ∆s that are “necessary. jur. • Everyone was willing to accept a limitation of all claims to the amount of the policy. Court can also sever claims. would be inconsistent with the jur. Rule 21: Misjoinder merits cure rather than dismissal. Ass’n v. v. or sole responsibility for shared liability (this should be foreclosed on appeal if not asserted) o (3) Interest of the outsider whom it would have been desirable to join. Rule 20 (Permissive Joinder) Prong 1: “logically related” as “a series of transactions or occurrences” Prong 2: “question of law or fact common to all” M. add or drop a party.K. consistent. 682 D. the judgment would be in danger of avoidance by collateral attack. Patterson. prejudicial. 693 – Rule 19 Required Joinder – SCOTUS 1968 • Facts: The appellate court did not follow the provision of Rule 19 that findings of indispensability must be based on pragmatic considerations. No one can. on just terms. 25 of 36 .” • Reasoning: In this case. and efficient settlement. They can be related or unrelated. (2) expedite the final determination of disputes. or by saving their rights.destroy complete diversity. p. you have to join people when (1) the court needs them for complete relief and (2) it is feasible to join them. An adjudication of permission that would be binding on all interested persons.C. Bank of California Nat. Four interests: o (1) п's interest in having a forum (includes interest in preserving judgment) o (2) ∆ wish to avoid multiple litigation.
answer Tanbro Fabrics Corp. if it arises out of the same transaction. Inc. and ANSWER. Can one п crossclaim against another п? YES! § 1367 bars using Rule 1367 to destroy complete diversity for Rule 14 (contribution). • Capacity = minors. Answering the Policy Question on the Exam: 1. What rule allows Jerry and Elaine to sue together? Rule 20 What rule allows Kramer and Newman to be joined together? Rule 20. p.e. Affirmative Defenses (Rule 8) 5. 3. administrator. Penrose: Use this quote on page 670 on the final. speedy. each individual claim might not look so strong on its own 26 of 36 . etc… Rule 17 allows the following to sue in their own name without joining the beneficiary: executor. Rule 19 & 20 (Permissive and Compulsory Joinder) and Rule 24 (Intervenor). One п can crossclaim against another without them being diverse. excessive costs. Counterclaims (Rule 13) 6.” See Lasa. always. 12(b)6 3. but probably not and not on the final exam Penrose: Joinder is usually good for plaintiffs. particularly 13(g). then his claim falls under a 13(a) exception and he doesn’t have to raise it against Jerry’s suit. but the rest go under Rule 15 for amendments. party with whom or in whose name a contract has been made for another’s benefit.. Kramer can bring it in under 13(e).• § 1359 Parties Collusively Joined or Made: A district court shall not have jurisdiction of a civil action in which any party. prejudice to parties. 12(b)1-5 2. and party authorized by statute 4/5/2011 Final Exam Reminder: • Rule 18 = Claims • Rule 20 = Parties Reference each rule as you write the exam and do NOT mix these two up. and inexpensive determination of every action) 2. If Kramer wins the race to the courthouse. v. guardian’ bailee. • Tanbro wants to raise the “empty chair” defense. Rule 19 might force you to fill it. Start with Rule 1 (just. the multiple injuries might seem to add up to a win for the plaintiff’s. Beaunit Mills. always. whereas. trustee of express trust. always. If Jerry defames Kramer after litigation starts. Rule 14 has a set time frame attached. always lets you fill that empty chair. with a class action. n. 677. applies to пs and ∆s. Avoid multiplicity of suits and liability. however. which is to blame someone not in the lawsuit • Rule 20. “The words “transaction or occurrence” are given a broad and liberal interpretation in order to avoid a multiplicity of suits. has been improperly or collusively made or joined to invoke the jurisdiction of such court. mental incompetents. 12(e)/12(f) 4. 4/7/2011 ∆’s Checklist: 1. by assignment or otherwise. • Rule 17(a)(3) limited to where proper party to sue is difficult to ascertain or when an excusable mistake has been made. i. but NOT Rule 13.
where all пs were willing to voluntarily limit their recovery to the policy. See Bank of California. Provident Tradesmens Bank & Trust Co. inconsistent relief. Interpleader Rule 22 is supplemental to Rule 20 (permissive joinder for (1) joint. or alternative relief. ∆ must do this within 14 days of their answer or obtain the court’s leave. Third-party ∆ now becomes just like a regular ∆ and must assert all the regular stuff and may assert all the regular stuff. o (4) Interest of courts and public in complete.. (3) п can amend against third-party ∆ anything from the same transaction. 688. You must join parties when the court needs them for complete relief and it is feasible to join them. then the numerous suits are sent to their individual locales for just the issue of damages. Courts have fairly wide latitude to order fixes like this under Rule 42 (Separate trials and consolidation for economic. v. (2) question of law or fact common to all пs). Rule 14 (Third-Party Practice) Rule 14: (1) ∆ can bring in for contribution anyone who is or may be liable to it for all or part of the claim against it. several.3. Sometimes trials can be split where a common set of facts is tried. consistent. Penrose: Rule 19 is like the lottery. Patterson. p. then you” • This case conclusively establishes that you do not have to wait for a judgment before impleading for contribution. Third-party ∆ may assert defenses to п and may assert claims arising from п and ∆’s transaction that gave rise to original suit. then п can bring contributors in just like ∆ can under this rule. Jeub v. 1942 • Penrose: Rule 14 is always discretionary → any party can challenge the parties being added • Rule 14 is always contingent → “if me. you try it a lot and it rarely works. In this case. interest 2 was moot. Four interests: o (1) п's interest in having a forum (includes interest in preserving judgment) o (2) ∆ wish to avoid multiple litigation. Rule 22 (Interpleader): (a) 27 of 36 . 705 – DC Minn. p. Rule 19 is antithetical to the adversarial process. Inc. 693 – Rule 19 Required Joinder – SCOTUS 1968 • Holding: The court of appeals erred in not allowing the judgment to stand. or other reasons) Rule 19 (compulsory joinder) (not on final exam) There’s a difference between necessary and indispensable parties. (b) If a claim is asserted against п. sever or try separately. and efficient settlement. (4) Anyone can move to strike. 4/12/2011 A Rule 14(a)(2)(D) is a mutant claim because it is not a crossclaim and it is not a counterclaim Interpleader: Statutory interpleader’s only benefit is not having to post the stake. Rule 19(b)(2)(B) (shaping the relief) allows the court to play with the relief and work something out. prejudicial. (5) Third-party ∆ can plead in new third-party ∆s for contribution and start Rule 14 all over again. p. and dilatory. Rule 19 and Rule 22 (Interpleader) can trump п’s chosen structure. B/G Foods. or sole responsibility for shared liability (this should be foreclosed on appeal if not asserted) o (3) Interest of the outsider whom it would have been desirable to join. (2) third-party ∆ must treat ∆/third-party п just like a regular п (for Rule 12 & 13).
is regular PJ and service. (c) You have to serve the motion on the parties under Rule 5 (Service Rule) and state the grounds and set out the claim or defense. 5. – 1969 • Facts: trial court finds that the school district unconstitutionally segregated. (Supp. and (3) collusion between the rep and the adverse parties. Double Vexation Requirement: You must show actual threats demonstrating reasonable probability of double vexation → once two suits are filed. Rule 24 interventions must be “timely. p. § 2361 Nationwide PJ and service. § 1397 Venue Interleader You can bring this wherever one claimant resides.” p. but case law seems to allow it just like Rule 22. Tashire. The board as a whole voted not to appeal. Cir. 738: Different motives to litigate are irrelevant if both party’s have a demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions. p. (2) ∆s with similar liability can do impleader through crossclaims or counterclaims. You can do this even if the claims lack a common origin or are not identical and if п denies liability “in whole or in part to any or all” of them. The federal statute has no explicit similar allowance for ∆s (Supp. v. but the court decides that he doesn’t because he won’t get his job back no matter how the appeal turns out. (2) fashion a permanent injunction for the interest. New York. 734 – D. n. 521). Then. 727 – SCOTUS 1967 • The injunctive power of interpleader is limited to the interpled portion of the action. gov’t officers and agencies can intervene when their orders and regs are involved. and (2) when disposition may practically impair movant’s ability to protect its interest. Then one lone board member tries to appeal and also lacks standing. and (3) make all other appropriate orders to enforce its judgment. or (1)(B) intervenor “has a claim or defense that shares with the main action a common question of law or fact. He tries to do this under Rule 24(a)(2) by saying that he has an interest. on the other hand. That leaves his standing as an individual. and (2) applicant and his attorney are antagonistic. but under Rule 67. The claims don’t have to come from the same source or be related in any way to the interest. p. I. you can and пs often do. Rule 22. Additional grounds for assertion of inadequacy of representation: (1) applicant’s interests are not represented at all. former superintendent tries to appeal as an individual and in his former capacity. the tail cannot wag the dog. § 1335 Interpleader This is like a whole new way to get Federal SMJ. p. Disinterested stakeholders generally get attorney’s fees. p. Hobson. which is insufficient. (3) Court must consider undue delay and prejudice to the adjudication of the original parties’ right when they think about a permissive intervention motion. (2) Also. “unless existing parties adequately represent that interest. Smuck v. 739. 28 of 36 .e. you need just one potentially adverse claimant to have diverse citizenship.” (b) Court may permit when (1)(A) federal statute gives a conditional right to intervene. Rule 22 doesn’t require turning over the asset. Intervention Rule 24 (Intervention): (a) Court must permit intervention when (1) federal statute says so. 518). Natural Resources v. you cannot initiate interpleader State Farm Fire & Casualty Co.(1) If claims might “expose a п to double or multiple liability” then the potential claimants can be required to interplead as ∆s. The court can enjoin all other actions on the interest anywhere. You just need to deliver some interest to the court or post a bond for it that’s more than or equal to $500.C. The court can (1) discharge п’s further liability.
guaranteed student loan (vii) proceeding ancillary to a proceeding in another court. address.” p. No excuse due to lack of full investigation or sufficiency challenge or other party’s failure. and you have to disclose the subject of the info (ii) you also have to provide a copy or description of your evidence. unless impeachment. 5. It has to have the following: (i) complete statement of all opinions to express and basis and reasons for them (ii) data or other info considered by the witness in forming opinions (iii) exhibits that will be used to summarize or support opinions (iv) qualifications. or unless objection in proposed discovery plan. ----------------------------------Discovery and Summary Judgment----------------------------Discovery Rule 26 (a) Required Disclosures (1) Initial Disclosure (A) In General (i) you have to provide the name.S. (2) Disclosure of Expert Testimony (A) In General: Must disclose expert’s identity if under 702. including list of publications authored in past 10 years (v) list of all other cases testified in during past 4 years at trial or deposition (vi) statement of compensation for study and testimony (C) Time to Disclose Expert Testimony: Must follow court stipulations.S. They always have to option to bring a suit later if they don’t intervene. or 705. to recover on U. 6: Does an intervenor need independent SMJ? n. and (viii) action to enforce an arbitration award (C) Time for Initial Disclosures-General: at or within 14 days of the Rule 26(f) conference unless otherwise stipulated by court. to step in and show that a suit is collusive and there is no case or controversy or to weigh in on equal protection issues or other constitutional issues. (D) Time for Initial Disclosures-Served or Joined Later: within 30 days of service or joinder unless otherwise stipulated by court (E) Basis for Initial Disclosure-Unacceptable Excuses: Disclosures to be made based on info reasonably available. except impeachment 29 of 36 . unless impeachment (iii) you have to compute the damages and provide the computation (iv) you have to provide insurance info (B) Proceedings Exempt from Initial Disclosure (i) action for review on an admin record (ii) petition for habeas corpus or anything else challenging a criminal thing (iii) pro se actions while in custody (iv) action to enforce or quash admin summons or subpoena (v) U. and phone of everyone likely to have info supporting your claims or defenses.§ 2403(b) allows the U. Otherwise: (i) at least 90 days before trial ready date (ii) within 30 days after other party’s disclosure if intended solely to contradict or rebut another expert’s Written Report (D) Supplementing the Disclosure: Must supplement when required under 26(e) (3) Pretrial Disclosures (A) In General: must provide and promptly file evidence for trial.S. 703. n. n. 739. action to recover benefit payments (vi) action by U. (B) Written Report: Expert has to supply a written report. even to weigh in that a suit can be decided on nonconstitutional grounds Rule 24 interventions must be “timely. SCOTUS said that you can never require someone to intervene. 7: In a 5-4 decision.S.
must show this standard met. delineating “expect to offer” and may offer “if the need arises. Objections waived unless excused by court for good cause. if requesting party shows good cause. and phone. or less expensive source available (ii) ample opportunity to obtain the info by discovery was already had (iii) burden or expense of proposal outweighs its likely benefit. (5) Claiming Privilege or Protecting Trial-Prep Materials (A) If you withhold info and call it privileged. Producing party. you can discover in any sequence and one party’s discovery doesn’t delay the others. Planning for Discovery 30 of 36 . Relevant doesn’t mean admissible if reasonably calculated to discover something admissible. (c) Protective Orders In a nutshell. or more convenient. must make reasonable steps to retrieve it. Court may order it anyways.” (C) You can ask for previous statements and get them. opinions. Court can order anything relevant for good cause. for getting this if “not reasonably accessible because of undue burden or cost. (B) Specific Limitations on Electronically Stored Information: No req. and (ii) describe the stuff in a way that lets the other side assess your claim (B) If you deliver stuff then change your mind and want to withhold it. if not done already. The court has specified and fairly wide latitude to shape relief. oppression. Objections: must make at least 30 days before trial. May file objections within 14 days or as stipulated. you must: (i) expressly make the claim. signed. transcript of pertinent parts of it (iii) list of each document or other exhibit. or undue burden or expense. Can object to the list of deposition under Rule 32(a) and to admissibility of the docs and exhibits. Unless stipulated. Hickman p. less burdensome. (ii) list of deposition expected to use and. embarrassment. and served. Court may limit number of requests under Rule 36 by order or local rule. the court can issue these for good cause to protect from “annoyance. and may promptly present it to the court under seal for claim determination. considering the court’s rights to limit discovery. with attorney’s fees awarded if need be (4) Trial Preparation: Experts (A) You can depose experts and you can wait until you get their Written Report if you want (B) You can’t if they aren’t expected at trial unless “exceptional circumstances” “impracticable to obtain facts or opinions on same subject by other menas” (C) Unless manifest injustice. sequester. if not taken stenographically. for expected witnesses and witnesses to “call if the need arises. court may limit frequency or extent otherwise allowed when: (i) unreasonably cumulative or duplicative.” (B) Time for Pretrial Disclosures. scope is any nonprivileged. court must require you to pay the expert a fee to respond and pay the other party a fair portion of the fees and expenses reasonably incurred in getting the expert’s facts and opinions. you must supplement timely when you learn of incompleteness or incorrectness and correction has not otherwise been made or as stipulated. (e) Supplementing In a nutshell. (d) Timing and Sequence You have to wait till the Rule 26(f) conference or other stipulation. can’t use it till claim resolved. (C) By motion or sua sponte. the other side must promptly return.(i) name. (f) Conference of the Parties. (2) Limitations of Frequency and Extent (A) When permitted: court may alter under Rule 30. conclusions. Includes people who know where to find info. considering (1) needs of the case (2) amount in controversy (3) parties’ resources (4) importance of issues (5) importance of discovery in resolving those issues (3) Trial Preparation: Materials (Codification of the work-product doctrine. or legal theories. address. must preserve info till claim resolved. (4) Form of Disclosures: Unless ordered otherwise. you generally cannot discover stuff “prepared in anticipation of litigation” and if you can because you showed a “substantial need for them and cannot obtain them without undue hardship” then the court must protect against disclosure of “mental impressions. or destroy it and copies. This extends to expert witness stuff. 896) (A&B) In a nutshell. all required disclosures must be in writing.” On motion to compel. relevant matter. including evidence summaries. (b) Discovery Scope and Limits (1) Scope in General: Unless stipulated. Court may specify conditions.” delineated.
Co. then tried it under the Sherman Act in fed. Rule 27 Rule 27 lets you perpetuate testimony when there’s danger of it being lost. Generally. 3. but it was wrong. Lindberger v. 837 • Facts: These docs are sore about not getting into this prestigious academy and sue. 836: no discovery of ∆’s contractual agreements with third parties due to lack of relevance to this contract • Relevance is limited by proportionality ((b)(2)(C) Limiting Discovery) Marrese v.” or “cause to last indefinitely. Posner thinks they are sore losers and just want to pilfer info via the liberal FRCP on a baseless Sherman Act claim. “As a threshold matter. They actually lost this case in state court. furthermore. and Objections This is kind of like Rule 11… very similar. William Morris Agency.. Can he do this in Ohio state court? • Case quote: “Interrogatories may seek information relevant to any issue of the action and to all sides of the case. not pleading issues. • Rule: Rule 27 is for “perpetuation” meaning “to make perpetual. a pretense for using discovery powers in a fishing expedition. • This case illustrates different approaches to the concept of relevance. the very extreme liberal FRCP discovery rules. phases or issue focus (C) electronic issues. p.” 31 of 36 . then tried to discover what п would use for his case. pointing toward. and at least 21 days before scheduling conference or Rule 16(b) scheduling order due.” Kelly v.Parties must confer as soon as practicable. Nationwide Mutual Ins. Here. p. Responses. They want membership admissions records for a Sherman Act (antitrust) suit. “Many states have liberalized their statutory procedure. subsequent repairs aren’t admissible at trial. 835: Court allows discovery of changes to machine made after production. because the trial judge didn’t seem to think it was. The Dissent thinks the claim is not so baseless. 829 • Facts: Sheila is the Administratrix of her father Fred. • Rule: Under Rule 26(d) (Sequence and timing) the judge can look at nonsensitive discovery first to evaluate. completion date. Rule 26 allows “claims and defenses” and for “good cause” further discovery “of any matter relevant to the subject matter involved in the action. She thinks maybe the Sheriff or a deputy shot him dead wrongfully. 832 • Facts: ∆ generally denied. and holds Rule 27 inapplicable. Court orders discovery anyways because the repairs are relevant to knowledge of the need for them and negligent maint.” “preserve from extinction. qualified immunity requires detailed factual allegations of a violation of a clearly established federal right. Some other court came to a different holding based on an In Pari Materia reading of Rules 11 and 27. but for some reason a civil action can’t yet be commenced.” WWF v. 836: The line between info relevant to “claims and defenses” and relevant only to the subject matter of the action is blurry. • Holding: Court holds that she is in a pickle. p. rather than try to discover facts on the issues. Plan submitted w/in 14 days of conference. p. General Motors Corp. (3) Discovery Plan (A) timing of disclosures made or to be made (B) subjects. discovery must be relevant to action issues. but apparently can’t sue him without “a likelihood of evidentiary support” under Rule 11 and. the court should be satisfied that a claim is not frivolous. forms of production (D) privilege or protection as trial-prep issues (E) changes on regular limitations or local rules (F) other orders that the court should issue on Protective Orders and Rule 16(b)-(c) issues (g) Signing Disclosures and Discovery Requests. p. admits to knowing of no way out. American Academy of Orthopaedic Surgeons. court. N. Go figure. if not actually adopting.” Also. admits the Catch 22. In re Petition of Sheila Roberts Ford. p.
under 26(c). American Export. she challenges non-disclosure of videotapes that came up in a different trial of crash dummy baby testing with frontlooking seats. This case elucidates the work-product doctrine. then another motion. but they can’t due to a Rule 26(c) Protective Order. compare the hardship to the discloser to the hardship to the seeker and the nature and magnitude of hardship. v. p. till they lost their state-court suit. but would uphold the contempt holding and 10k fine for not releasing the documents. but doesn’t have to produce the notes and tapes and transcripts in identical form under the work-product exception. N.” Cummings v. 847: “good cause” = moving party demonstrates that “disclosure will work a clearly defined and very serious injury. then they do not have to disclose them • The old version required disclosure of everything “relevant” to the disputed facts N.” That is evidence that wouldn’t qualify as admissible and reduces the att’y from officer of the court to witness.. • Rule: Usually. 897 • Tug boat sinks. ∆ says they are privileged due to being work-product in preparation for litigation • Reasoning: the notes are not protected by the attorney-client privilege. Cons: (1) inconsistent with adversarial principles and (2) increased expense and delay. • 32 of 36 . p. 906: п wants film of injuries. p. 1. 849 • Facts: There’s a car crash and the co. п wants the notes. and after that he knew about. p.” • “forcing an attorney to repeat or write down whatever he remembers being told by witnesses raises grave dangers of inaccuracy and untrustworthiness. p. then a motion. has full access to the witnesses and could get the relevant info himself rather than getting the tapes and transcripts and attorney's notes regarding the stuff. With regard to the notes and Rule 26. is saying this lady reclined her seat too much or turned around and she’s saying she couldn’t have due to this back-looking car seat that they clam was front-looking. during. • Reasoning: There’s a hint of predatory discovery where п didn’t seek access to the fed.Rule: You must. 1.” limited to the context of pretrial civil discovery that do not restrict dissemination of the info if gained from other sources. • Dissent: Picks apart Posner and would direct to review in camera and consider redaction. the att’y summarized and delivered all facts before. Taylor. The court has her deposition 1st then video. • Holding: The attorney must disclose facts learned. then more discovery. After losing. • The US Supreme Court affirmed the Washington Supreme Court ruling that no 1st amendment scrutiny will be given to protective orders with “good cause. • Rule: Methods to avoid prejudice include the Redaction Method. p. but rather wants the exact transcripts gleaned by att’y. the judge will require you to finish discovery before moving for summary judgment. Snead v. rather than allowing some discovery. but the disclosing party has no intent to use them. A first amendment interest to expression by choosing your voluntary associations in an exclusive membership organization make the hardship on the discloser HIGH in this case. General Motors Corp. 845 – 26(c) (Protective Orders) • This small religious organization sues a newspaper for defamation. Court is worried about her trying to conform her testimony to the film only if it exists. att’y talks to survivors and takes notes. then more discovery. • Rule 26(a) requiring initial disclosures of “all stuff in possession that disclosing party may use to support its claim or defenses” means that if there are some relevant videotapes. Seattle Times Co. The trial judge found her motion untimely and lacking in support.End § 1------------------------------Materials Prepared in Anticipation of Trial Hickman v. moreover. court system and its liberal discovery rules. Newspaper compels discovery of the orgs donors and wants to publish it under their 1st amendment rights. • “Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. subsequently codified in Rule 26(b)(3). п isn’t complaining of bad faith or defect in delivery. Pros: -----------------------. п. then a motion. Rhinehart. and the In Camera review. 851: Mandatory disclosure.
Instead. Attorney-Client Privilege requires. Expert Information Krisa v. regardless of whether they constitute opinion work product • The court does not allow compulsion of the documents from the expert that contain core work product of the attorney – Close the loophole for attorney product to slip through in the expert clause of Rule 26 Expert discovery used to be limited to interrogatories unless otherwise stipulated. SCOTUS doesn’t and just views everyone as an embodiment of the corp. and state statutory privilege.. U. In either case. p.S. Equitable Life Assurance Society. Info. 917 – Penn. Attorney/Client is absolute. IRS follows up wanting info directed from emps. Moloney v. 908 – SCOTUS • Pharmaceutical co. • Holding: Negligence = not enough. Gross negligence = enough when it amounts to a “near total dereliction of professional responsibility” 33 of 36 . 920 • Movie theatre owner thinks others colluded to prevent him from getting the good movies and brings an antitrust suit • Cine complains bitterly that the interrogatories that they belatedly answered insufficiently were harassing. finds out about some graft in other countries.. • Reasoning: It would be unfair and irrational to prevent a party from being heard solely because of a nonculpable failure to meet the terms. informed by client without strangers for purpose of securing either opinion on law or legal services or assistance in legal proceeding and not for purpose of doing a crime or tort and 4. Allied artists Pictures Corp . p. p. Theatre Corp. no exceptions can get you around it. not available from upper-echelon mgmt was needed to supply a basis for legal advice c…” • Procedure: The lower courts drew a distinction between upper level mgmt of corps and others. p. • Holding: because the emps are so many and so dispersed. the “substantial need and inability to obtain the equivalent without undue hardship” req is probably met. then later changed to federal self-critical analysis privilege. 5. The Extent of Work-Product Protection The usual view has been that the same rules of privilege apply to discovery as apply at the trial. they filed similarly defective supplemental answers and disobeyed two subsequent orders compelling stuff.Impeachment is solely for the purpose of casting doubt on the veracity of a witness. Others. v. 908 1.” • Bogosian holding: core work produce generated by attorney shielded from discovery even if disclosed to an expert • Other courts have held that Rule 26(a)(2) is designed to mandate full disclosure of materials reviewed by an expert witness. but the communications would either violate att’y/client privilege or reveal att’y’s mental processes. member of bar or subordinate and acting as a lawyer 3. are qualified. p. 915: There are absolute and qualified privileges. Is it protected by the att’y/client privilege? • “The communications at issue were made by emps to counsel acting as such. even through the exception. federal medical peer review privilege. D. like for example the “undue hardship” qualification. • Issue: Does gross negligence in failing discovery orders justify the severest disciplinary measures available under FRCP 37? There’s an issue about whether they honestly didn’t understand the order or willfully neglected it. they never asked to strike them at the time. • Equitable denied Krisa’s app for disability under a policy • Issue: There’s a split of authority on whether “core attorney work product shared with a party’s expert is discoverable. v. United States. They report it to the SEC and the IRS. 916: The att’y asserted attorney/client and work-product privileges. is or sought to be a client 2. at the direction of corporate superiors in order to secure legal advice from counsel. Court did not allow this and held them to have waived the privilege.C. p. to General Counsil. N. Sanctions and Judicial Supervision of Discovery Cine Forty-Second St. they cannot compel this. privilege claimed and not waived by the client UpJohn Co. senior mgmt.
therefore trial was appropriate.• Concurrence: wants to write about his reluctance to impute sins of counsel on clients N. SCOTUS. held complex litigation involving intent and motive should not be decided on summary judgment. The court is doing a 180. the fellow employee supervising the change. Burk. internally consistent. due to the circumstances and lack of response on the plaintiff’s part. (b) Defendant “ “. and “subjective feelings and reactions. Cross v. 34 of 36 . p. and in full accord with the documentary exhibits. • Holding: A vague supposition that something might show up at trial is no longer enough. Burks. unequivocal. they just accept what he said. figure out what material facts are not genuinely at issue by examination and interrogation. (f) When Affidavits Are Unavailable (1) court may deny the motion (2) court may order a continuance to enable them to be obtained. Lundeen v. seems to be the key here. 961): private antitrust. Court may also hold in contempt. The court should then order those facts settled. or other discovery. (2) Response must set out specific facts showing a genuine issue and cannot merely rely on allegations or denials in its own pleading.S. (2) Interlocutory summary judgment may be granted and proceed only on damages. set out admissible facts. U. 925: The extreme sanction of dismissal or judgment is disfavored because courts are reluctant to deny a litigant her day in court. Intervenor comes in with affidavits and exhibits showing that deceased did everything he could to effect a bene change before death. (p. and rather than requiring that his credibility be weighed at trial. Summary Judgment Rule 56 (a) Claimant can move on all or part of claim. (4) the affidavits are positive. 967): income tax refund suit. however. p. Chilled complex case summary judgment for two decades. Mr. • Rule: an insured’s attempt to change his bene will be given effect if all that remains to be done is a ministerial duty on the insurer’s part. (B) Response filed later of responsive pleading due or 21 days after service (C) Movant may file reply to response within 14 days of response service (2) Should grant if “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. 4. 1966 • Facts: Interpleader action on life insurance policy with disputed benes. Summ Jud granted for Intervenor.” (d) Case Not Fully Adjudicated on the Motion (1) court should. (3) participated in the transaction in the regular course of his job duties. (e) Affidavits. p. motive. and show competence to testify as to the matters stated. (2) is competent and directly observed.” “A judge may not on a motion for summary judgment. to the extent practicable. depositions taken. (1) is apparently unbiased. 1962. • Reasoning: п presents no counter evidence nor in any way indicates that intervener’s evidence is not worthy of belief. draw fact inferences.” The professor’s legitimacy could be called into question at trial. Appeal by listed benes. Appeals court reversed summary judgment so the gov’t could test Professor’s credibility. 964. Further Testimony (1) affidavits must be made on personal knowledge. Poller v. Don’t need affidavits. (3) court may issue any other just order (g) Affidavit Submitted in Bad Faith If an affidavit is submitted in bad faith or solely for delay. (c) Timing (1) local rules or court orders can change these defaults (A) Can move between close of discovery and 30 days. Cordner. the court MUST order to pay the other party’s reasonable expenses incurred. 961 – 8th Cir. CBS (p. intent.
She alleged a conspiracy between a police officer and the store and that her civil rights were violated.e. and strict liability. even if it was just an expression of disapproval to a store employee that led to the refusal. which made it admissible.. but feels that pointing out the hearsay is enough. v. п failed to answer a bunch of interrogatories. and agrees to remand to decide. Guy tries to argue excessive force (4th ammdt). which would change it from hearsay to admissible evidence. Matsushita Electric Industrial Co. • The store manager claims that he refused to serve her because he wanted to avoid a riot… One reading of Adickes is to impose a “foreclose the possibility” standard on the defendant that requires negating the existence of all issues in dispute. Kress & Co. but explain why they were hearsay. a jury. crowded. Liberty Lobby. a divided court found that one of the letters might fall under the business records exception to the hearsay rule and that Celotex failed to challenge as hearsay that particular document. Also. o Points out that you can (1) negate an element essential to the other party’s claim or (2) show that the opposing party lacks sufficient evidence to establish an essential element of its claim. warranty breach. i. “in light of the sequence that followed” could have inferred a conspiracy. Kress didn’t meet their burden of persuasion because they submitted nothing controverting the original allegation that a police officer was in the store.Dyer v. you just have to show. v. Celotex Corp. then store. p. Scott v. i. S. Motion granted. Peace officer tells the story that he was driving recklessly and endangering lives. • Brennan’s dissent: says that Celotex was required to do more than conclusorily state that the three pieces of evidence were hearsay.. Inc. Guy was seriously injured when officer forced him off the road. appellate affirmed. does not constitute “specific facts” and is not enough. but not her. “point out” a lack of evidence as to material fact. • Holding: The clear-and-convincing standard of proof should be taken into account. without claiming that the witness has personal knowledge of asbestos exposure. 981: Trial court denied summary judg. kids served. 970 • Facts: Lady tries to take students into Library. kicked out. p.” Adickes v. • Summary judgment is not a disfavored procedural shortcut.. • You don’t have to produce evidence. then Kress store. ∆ got sum jud. (2) letter from an officieal of a former employer. 984 • Libel lawsuit requiring actual malice. the court could still have directed a verdict against him. The dissent on remand said that the mere listing of a witness. SCOTUS thinks that the videotape eviscerates the guy’s testimony and leaves no material issue of fact.” • п produced (1) transcript of a deposition. If an officer was in the store.. • Problem: While п’s reply wasn’t sufficient b/c hearsay and unsworn. Ultimately. • Kress moved for summary judgment and got it on the conspiracy issue.. 973 – SCOTUS 1986 • Asbestos claim for negligence. it wouldn’t be appealable because it would be based solely on “demeanor. affirmed because even if the guy convinced a jury that all the witnesses were wrong and he alone was right. • Procedure: Celotex moved for summary judgment because “respondent failed to identify any witnesses who could testify about the asbestos exposure. • Celotex contended that these were all inadmissible hearsay. Zenith Radio Corp. • SCOTUS (White): Issue is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. but rather “an integral part of the FRCP” • White’s concurrence: Agrees w/dissent that conclusory statements are not enough. knowledge that the statements were false or with reckless disregard of whether they were true or false. Ms. p. MacDougall (p. p. so why let him try? Even if the judge erred in directing the verdict. 986 – SCOTUS 1986 35 of 36 . 970): suit for slander. On remand. (3) letter from an insurance company to respondent's attorney. Catrett. Anderson v. p. then they left and she was arrested for vagrancy. Guy tells a story that he was trying to pass a driving test or something.. but the judge should not decide facts or take over any of the jury’s role. Appeal. Harris.e. SCOTUS reversed. Appeals court reversed under the “foreclosure of all possibility” rule of Adickes. SCOTUS refined the rule to “showing of no material fact in dispute” not “proving not material fact in dispute” and remanded.H. Catrett indicated intent to call the letter’s writer as a trial witness.
and (2) “the court failed to consider the absence of a plausible motive to engage in predatory pricing. (1) the “direct evidence” had little if any relevance to the predatory pricing conspiracy. SCOTUS pointed out two errors.” 36 of 36 . appellate reversed.• Trial court granted motion blocking antitrust suit against Japanese TV makers.