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Civil Procedure Outline Professor Ressler, Fall 2011

Table of Contents

I. Introduction to the American Judicial System ......................................................................................................... 3 II.
a. Introduction .................................................................................................................................................................................. 3 b. FEDERAL SUBJECT MATTER JURISDICTION ...................................................................................................................... 3 c. PERSONAL JURISDICTION ......................................................................................................................................................... 6 d. SPECIFIC JURISDICTION ............................................................................................................................................................ 8 e. GENERAL JURISDICTION ........................................................................................................................................................... 9 f. APPROACHING THE JURISDICTION ANALYSIS:................................................................................................................10 a. CONSENT.......................................................................................................................................................................................10 b. NOTICE ..........................................................................................................................................................................................11 c. WAIVER .........................................................................................................................................................................................12 a. b. Introduction ................................................................................................................................................................................12 When are State long-arm statutes enforceable? ............................................................................................................12

JURISDICTION............................................................................................................................................................. 3

III. CONSENT AND NOTICE .......................................................................................................................................10

IV. Long-Arm Statutes .....................................................................................................................................................12


a. Introduction ................................................................................................................................................................................13 b. STATE venue ...............................................................................................................................................................................13 c. FEDERAL VENUE ........................................................................................................................................................................13 d. FORUM NON CONVENIENS .....................................................................................................................................................14 e. TRANSFER ....................................................................................................................................................................................14 a. Introduction ................................................................................................................................................................................15 b. Joinder of CLAIMS .....................................................................................................................................................................15 c. Joinder of PARTIES....................................................................................................................................................................16 d. SUPPLEMENTAL JURISDICTION ...........................................................................................................................................16 e. REMOVAL .....................................................................................................................................................................................17

Venue ...............................................................................................................................................................................13

VI. Joinder of Claims and Parties..................................................................................................................................15

a. c.

Former Adjudication/ Claim & Issue Preclusion (Civil Double Jeopardy)...................................................17
Introduction ................................................................................................................................................................................17 ISSUE preclusion ........................................................................................................................................................................18


a. What We Really Need to Know: ............................................................................................................................................19 b. Introduction................................................................................................................................................................................19 c. What laws must the FEDERAL court apply when ruling in a DIVERSITY case? ...................................................20 d. What if state and federal RULES conflict? Do you use state or federal PROCEDURAL rules? ........................20 a. b. c. d. c. e. f. g. i. j. Introduction ................................................................................................................................................................................21 How much we need to put into the complaint? ..............................................................................................................21 Who has the burden of which elements? ..........................................................................................................................22 What are the ethical limitations of pleading?.................................................................................................................22 What is discoverable? ..............................................................................................................................................................24 Spoliation .....................................................................................................................................................................................25 What are the TYPES of discovery? .......................................................................................................................................25 Procedure of Discovery...........................................................................................................................................................27 Is E-DISCOVERY discoverable? ..............................................................................................................................................29 In some situations What are the LIMITATIONS on discovery? ..................................................................................29

Erie Doctrine ............................................................................................................................................................19

IX. Pleading .........................................................................................................................................................................21

k. a. b. c. d. e. f. g. h. i. j. k. l.

Ensuring COMPLIANCE with discovery .............................................................................................................................30 Introduction ................................................................................................................................................................................31 What if  does nothing? Leads to default judgment! ....................................................................................................31 DEFAULT JUDGMENTS >> RULE 55 (Before Trial, After Discovery).............................................................................31 INVOLUNTARY DISMISSAL [RULE 41(b)] .........................................................................................................................32 VOLUNTARY DISMISSAL [RULE 41(a)]...............................................................................................................................33 Introduction .................................................................................................................................................................................33 How can π voluntarily dismiss? ...........................................................................................................................................33 If π voluntarily dismisses, can he file the same suit again? [RULE 41(a)(1)(B)] ...............................................33 Who bears the COST if a case is voluntarily dismissed? ..............................................................................................33 SETTLEMENT ...............................................................................................................................................................................33 ALTERNATIVE DISPUTE RESOLUTION [ADR] .................................................................................................................34 SUMMARY JUDGMENT [RULE 56] (After Discovery) ......................................................................................................35

XI. RESOLUTION WITHOUT TRIAL ......................................................................................................................31

a. b.

JUDICIAL MANAGEMENT OF LITIGATION .............................................................................................36
Introduction ................................................................................................................................................................................36 Judges MUST issue a SCHEDULING ORDER! [RULE 16(b)]..........................................................................................36


a. Judges may DIRECT A VERDICT After trial but before it goes to jury...........................................................................38 b. What gives you a right to a trial by jury? ..........................................................................................................................38 c. When does the right to trial by jury apply? .....................................................................................................................38 d. What ISSUES arise when trying to determine whether or not a case is to be tried by a jury? ......................39 e. How does a party obtain a jury trial? [RULE 38] ............................................................................................................40 f. JUDGMENT NOTWITHSTANDING THE VERDICT [“JNOV”] ...........................................................................................40 g. NEW TRIAL ..................................................................................................................................................................................40 h. Judicial Recusal?........................................................................................................................................................................41

Determining Trier of Fact and Trial – Jury or Judge? ..................................................................................38



Introduction to the American Judicial System
NEW YORK FEDERAL COURT SYSTEM United States Supreme Court Court of Appeals for the Second Circuit (NY, VA, Conn) Eastern District of N.Y. Northern Dist. of N.Y. (E.D.N.Y.) (N.D.N.Y.) (covers Bklyn., Qns and Staten (covers Albany, Binghamton, Island) Syracuse) NEW YORK STATE COURT SYSTEM Court of Appeals Appellate Division Supreme Court

Southern District of N. Y. (S.D.N.Y.) (covers Man. and the Bx.)

Western Dist. of N.Y. (W.D.N.Y) (covers Buffalo & Rochester)

II. JURISDICTION a. Introduction
i. Three parts of the Constitution bear on jurisdiction: 1. Article III: Authorizes establishment of the system of federal courts a. Section 2: Sets limits of federal court authority 2. Article IV, Section 1: Requires that “full faith and credit…be given in each state to judicial proceedings of every other state a. Interpreted by the Supreme Court as requiring that one state recognize and enforce the judgments of another state 3. 14th Amendment, Section 1: Due Process Clause ii. State courts: Have general jurisdiction (very broad) 1. As a general rule, state courts can hear almost all cases iii. Federal courts: Limited jurisdiction 1. Article III, Section 2 defines jurisdiction of federal courts for: a. Cases arising under the Constitution and Federal Laws of the U.S b. Cases between citizens of different states (Diversity Jurisdiction) c. Cases regarding Ambassadors & Ministers to the U.S. d. Cases between citizens of tis country and other countries e. Cases between States 2. §1331 and §1332 further require: Federal question or diversity (w/ amount in controversy greater than $75k) iv. Although the Constitution authorizes federal courts to hear these cases, they don’t have to hear them v. Concurrent jurisdiction: Both state and federal courts can hear the case vi. A court needs SUBJECT MATTER and PERSONAL jurisdiction to hear a case. 1. Personal jurisdiction: Does the court have power over a given ? 2. Subject matter jurisdiction: Does a court have power over a given case? a. General jurisdiction: Power over generally all cases b. Diversity jurisdiction c. Federal Question vii. Just because there’s a case in court, doesn’t mean that the law of that court applies! 1. State courts can apply laws of other states – don’t confuse law with court viii. Remember, if you can’t bring a case in Federal court for lack of jurisdiction, there will be a State court that IS appropriat e!

i. Subject matter jurisdiction CANNOT BE WAIVED ii. There are two bases of federal subject matter jurisdiction (you only need one of them to bring a case): 1. DIVERSITY (when amount in controversy is greater than $75k). 2. FEDERAL QUESTION iii. DIVERSITY JURISDICTION (§1332) is proper when: 1. A suit is between: a. §1332(a)(1) - Citizens of different states b. §1332(a)(2) - Citizens of a state and citizens/subjects of a foreign state c. §1332(a)(3) - Citizens of different States and which citizens or subjects of a foreign state are additional parties; and d. §1332(a)(4) - A foreign state, defined in section 1603(a), as π and citizens of a state or of different states. i. For the purposes of this section, §1335, and §1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. ii. SEE II(b)(iii)(3-5) for FURTHER REQUIREMENTS 2. And amount in controversy exceeds $75,000 (completely statutory – look at the claim) a. The amount in controversy requirement will be presumed met unless it appears to a legal certainty that it is NOT met (St. Paul Mercury Indemnity Co. v. Red Cab Co (U.S. 1938) - (π is given the benefit of the doubt.) Applies to all damages (punitive too). b. Senate Judiciary Committee on amount in controversy – should not be so high as to make federal court a court of big business, but not so low that it becomes a court of petty cases. c. If the  is asking for an injunction there are 4 ways for the court to determine the value of an injunction: i. Determine the value of the injunction to π ii. The cost of compliance w/ the injunction to the  3

iii. Choose either (1) or (2) iv. Determine the cost or value to the party invoking federal jurisdiction (the π, if the action is brought in federal court, and the , if the action was brought in state court and  is attempting to remove) d. Amount In Controversy Aggregation rules: i. 1  can aggregate against 1  ii. 1  cannot aggregate against 2 separate s

iii. 1  cannot sue 2 s if the claim against 1 is not over $75,000 iv. 2 s cannot aggregate against 1  v. 2 s can aggregate if 1 ’s claim is over $75,000 (This is technically not aggregation, it is a supplemental claim. The 2nd claim “piggy backs” on the 1st) vi. 2 s can aggregate if it is a joint interest e. Reasons for amount in controversy requirement i. Efficiency/resource issue ii. Importance issue >> not important enough for federal courts 3. Citizenship (for the purposes of diversity is governed by domicile) a. DOMICILE: Actual physical presence in the state COMBINED with the intent to remain indefinitely >> you can only have one domicile at a time. Domicile does not change until both criteria are met, it just defaults to prior domicile. i. These 2 requirements must be met at the SAME time. 1. Redner v. Sanders (S.D.N.Y. 2000) (π was a US citizen living in France, s were residents in NY, and one  was a corporation whose PPB was in NY) No diversity jurisdiction. π tried to claim that he was citizen of France, but court says no, residency does N OT equal citizenship. Then π tried to argue that he was a citizen of CA, but this was also rejected because π didn’t show enough to demonstrate CA domicile. When invoking diversity against a foreign country, you must have citizenship in a specific state not just the U.S. as a whole. b. CORPORATIONS: Have 2 citizenships for purpose of diversity [28 USC §1332(c)(1)] i. Principal place of business 1. There used to be two tests for determining a corporation’s PPB: a. Corporation’s “nerve center” – where everything is controlled b. Corporation’s “muscle” – where assets and activities are – where are they doing what they exist for? 2. Supreme Court eliminated the muscle test in Hertz Corp. v. Friend (U.S. 2010). Nerve center determines PPB. ii. State of incorporation c. What about UNINCORPORATED businesses? (like LLC’s?) i. Citizenship of unincorporated company is a citizen of every state its general and limited partners are citizens of 1. Belleville v. Champaign (7th Cir. 2003) – LLC is NOT the same is incorporated company. Court declined to hear the case even though neither party brought up the issue of citizenship. Sua sponte – judge’s order made without a request by any party of the case. Since SMJ is non-waivable, the court did not have the authority to hear the case. d. Agents & representatives of a child, incompetent or deceased person – Keep the citizenship of the represented, underlying party. [§1332(c)(2)] e. Aliens - An alien admitted to the US for permanent residence shall be deemed a citizen of the state in which such alien is domiciled [§1332(a)(4)] i. Sadeh v. Farouki (D.C. Cir. 1997) (π was a Greek citizen,  a Jordanian citizen, lived in MD). No diversity jurisdiction. Unconstitutional for the court to create citizenship to satisfy diversity requirement. 1. §1332(a) – Congressional intent is to a contraction, NOT expansion of the rule! a. If π is MD, and  is Jordanian citizen, that clause in §1332 was meant to turn  into a citizen of MD. Goal is to contract jurisdiction. b. Note: Congress did this to avoid a common type of lawsuit, car accidents, being heard in federal court. 2. Federal Courts Improvement Act – District courts shall not have the jurisdiction between citizens of foreign states and permanent residents. f. Military and prisoners i. Retain their domicile from before incarceration or deployment. g. Divorce actions – Federal courts do not want to deal with these suits. Even if they meet diversity requirements, federal court will decline to hear the case. 4. Determining citizenship a. “Citizenship is determined at the commencement of the action.” Smith v. Kennedy (D. Kan.2000). Commencement of the action occurs when the complaint is filed. Status after filing does NOT matter 4

C §1331] a. but (under §1359) it is NOT okay to collusively join or make a party to invoke diversity jurisdiction a. Federal subject matter jurisdiction does NOT care if a π moves in order to gain the advantage of bringing suit in Federal court. FEDERAL QUESTION 1. but the π. Curtiss (U. Must bring in state court. but there is federal question jurisdiction.S. “Arising under” – Is normally invoked by π’s pleading a cause of action created by federal law. Note: Strawbridge is an interpretation of statute. since the court looks at what the π must establish as part of her case. but had to prove the issuance of bonds was unconstitutional in order to prove that  breached fiduciary duty. Result: Private citizens do not have the right to bring suit in federal court for violation federal statues. Grable Sons v. iii. a private citizen does have the right to bring a claim of a violation of a federal law. a. Mottley (U.S. b.S. BUT. Grable [MODERN RULE] i. No federal question. 5. Expands Holmes test –The federal issue was embedded in the state law claim and essential to its resolution 2. πs sued for specific pe rformance). Eliminates cases in which the central issue was a federal defense rather than a part of the π’s claim 2. 1806): Interpreted §1332 as – in the case of multiple diverse parties. i. It is okay for π to move to a different state to bring suit. Strawbridge v. For a π to sue in federal court under the statutory test for arising-under jurisdiction. or treaties of the federal government [U. 1908) (πs injured in railway accident and got lifetime pass to railway. π wanted to sue in federal court on the grounds that  violated a federal labeling statute).i. π had a state law claim. π suing for quiet title (“Quiet Title Action” – When there is a dispute over property. so Congress can change it. π assumed that s would use federal statute as a defense. National interest in providing a federal forum for federal tax legislation is sufficiently substantial to exercise federal question jurisdiction over the disputed issue. sold to . However. Disadvantages to well-pled complaint rule: 1. π doesn’t like this investment. It is not constitutionally required 5 . Also provides limitations. Despite Holmes’ test. alimony. so why are we mentioning it now? Because SMJ CANNOT be waived! ii. Note: The trial court did NOT mention federal SMJ. Federal issues are surplus. Integral to π’s claim is the constitutionality of a federal act. In Smith.  refused to honor the passes. or child custody fall outside scope of diversity jurisdiction. 1986) (private π wanted to sue  -. citing federal law. Test: There must be a contested and substantial federal question if it is to lie over state law. EXCEPTIONS to diversity jurisdiction: a. Kansas City Title & Trust Co (U. individuals must sue under state law.IRS took π’s land. so says it’s unconstitutional because the Loan Act that authorizes it is unconstitutional. Thompson (U. a. and π claimed a due process clause violation as a response to s anticipated response >> this is NOT within the definition of “arising under. The tactical move/advantage is moot.” Original cause of action here was a breach of contract. the existence of a single party with the same state citizenship as that of an opposing party will destroy diversity i. the π must assert a claim that arises under federal law (a defense is NEVER relevant to jurisdiction!!!) b. Different from Smith because π was challenging constitutionality of a federal law. Otherwise this would open the floodgates to federal court.) – Issue is whether claims of title of land obtained at a federal tax sale precludes removal to federal court of a state action with non-divers parties raising a disputed issue of federal title law. There is jurisdiction over cases “arising under” the Constitution. 1970) – changes Holmes test. This suit can be brought in federal court. statutes. federal law was passed banning these passes.S. The only entity that can enforce the act is the federal government.there was an issue with how  labeled a drug. so there is a federal question! Distinguished from Mottley where federal issue was an ANTICIPATED defense.exists to provide a neutral forum for diversity cases a. Federal Food and Drug Act does not include a private right of action. Darue Engineering (U. c. §1359 only applies when trying to INVOKE jurisdiction – but making a “non-diverse” party to “dis-invoke” jurisdiction is not an issue. b. d. even if spouses are citizens of different states when suit was brought b. Must be consistent with congressional judgment about the sound division of labor between state and federal courts. Held that a state law claim can give rise to federal question jurisdiction so long as it appears from the complaint that the right to relief depends upon the construction or application of federal law a. It’s a state claim. federal courts have occasionally upheld arising under jurisdiction where federal law does not create the right to sue. No federal question – Certain causes of action DON’T support “private/personal” claims ie: claims under the Federal Food & Drug Act. Merrell Dow Pharmaceuticals v.S.It arises under the law that creates the original cause of action 1. Though we need to interpret federal law. Test for well-pled complaint: Holmes Creation Test . Only essentials are used to determine the original cause of action. All tort claims arose under OH law. 1. 2005) . Louisville & Nashville Railroad v. Suits for divorce. This standard was broad so court narrowed it to a SUBSTANTIAL federal issue in Grable. this helps figure out to whom the title belongs. The presence of parties from the same state on both sides of a case dispels the concern of state courts potentially favoring home-state litigants ii. Smith v. so no federal cause of action.S. we are still only looking at π’s complaint! SO Smith is still faithful to Mottley’s well-pled complaint rule in a broader sense. Removal would not disturb the division of labor between state and federal courts. COMPLETE DIVERSITY required under §1332 . A federal court can hear claims that turn on substantial questions of federal law. i. above. 7. More expansive view! π suing bank because  was investing in federal farm bonds. in order to establish her state law claim. must prove a proposition of federal law 1. the Constitution requires only MINIMAL diversity – at least one claimant diverge in citizenship from another 6. it also includes state-law claims that implicate significant federal issues. Probate cases iv. Well-pled COMPLAINT rule – the federal claim must appear as part of a well-pleaded complaint Manipulation is not allowed to “create” a federal question. b.

iii. personally served. If  is served a usual place of abode. Section 1 – a state has to recognize judgments rendered in another state. Interlocutory Appeals are appeals that occur prior to final judgment on a specific issue of the case (ie: personal jurisdiction) 6. the less substantial the contacts need to be. sell it.c. Personal jurisdiction CAN be waived. Osborn v. Why do we care? Because Congress can change it – this is similar to the amount in controversy requirement and Strawbridge’s complete diversity requirement >> SMJ over federal question is created by statute. i. International Life Insurance (U. and up to the value of the property >> you attach a property by indicating that the land is in dispute (process varies by state) a. ii. 5. 3. NOT constitutionally required. Pennoyer bought land (after judgment).S. General jurisdiction: Continuous operations within a state are so substantial as to justify suit against it on causes of action arising from dealings entirely different from these activities. Constitution itself has the phrase “arising under Constitution” (Article III. Obtaining personal jurisdiction (Part II – Shifting to Modern Rule. Once a  begins arguing a case based on the merits. The further the claim is from the contacts with the state. (Sliding scale) a. Introduction – Only about the . Individuals: Domicile constitutes general jurisdiction over an individual. Writ of execution: Authorizes the sheriff to seize any property belong to the . Litigation brought both in DE and FL. 1. b. McGee v. 3.  doesn’t want to pay – beneficiary sues in CA. Constructive: Means pretend/fictional 3. 1. Parties who have appeared but failed to challenge SMJ and personal jurisdiction of a district court may generally NOT thereafter attack its judgment in another court. Shift towards “is it fair” >> it’s not fair to subject  to a state’s jurisdiction if it did not purposefully avail itself to that state c. No purposeful availment! It is essential that  “purposefully avail” itself of the state otherwise exercising PJ violates traditional notions of fair play. SPECIFIC and GENERAL jurisdiction i. “Minimum contacts” means more than what McGee suggested.  argues that statute violates due process. ii. Didn’t address situations with corporations and residents/residents who are not in the state iv. section 2) 1.  did NOT solicit the business! Decedent made unilateral decision to move to FL. Lawyer did constructive service by publication.  argues no CA jurisdiction because π was the only CA customer. FL does NOT have jurisdiction >> there were some contacts:  was sending money to decedent in FL. 1. Only requires a federal ingredient. then moved to PA and died – will was disputed. hired lawyer.S. GJ in state of incorporation and PPB. 1. PERSONAL JURISDICTION i. and give the money to the π to enforce suit – the purchaser of ’s property is given a “sheriff’s deed” 2. requires constructive service. Hanson v.Federal courts have to recognize judgments of state courts iii. and didn’t pay lawyer so he was sued by the lawyer. 1958) (PA decedent made a trust with a DE corporation. USC §1738: Full-faith and credit . Minimum contacts – the closer the claim is with the contacts to the state.S. Milliken v. the more substantial the contacts need to be. Court says there is SPECIFIC jurisdiction.S. and is interpreted as being a well plead complaint rule for lower district courts 1. Corporations: Continuous and systematic activity.  never saw it. 1824) – interpreted “arising under” broadly – the language in the Constitution (Article III) is broad. §1331 has been read more narrowly. In rem jurisdiction: Jurisdiction over property in territory if suit is about the property itself. (2) “Minimum” really means “minimum” >>  here only had one customer in CA. Denckla (U. BUT. 6 . Full faith and credit clause: Article IV. Under §1257 the Supreme Court has the right to review the decisions of a State’s highest court if the issue is “Repugnant to the Constitution” v. In personam jurisdiction (Tag/Transient jurisdiction are what’s left): Court has jurisdiction over person. ii. 1940) -. Territorial jurisdiction no longer makes sense) 1. Neff (U. and Neff sued in federal court to receive possession of land. Because Congress has the power to create lower federal courts. π said it was following a state statue allowing WY residents to be served out of state. Corporations can be subject to the general jurisdiction in more than one state. ii. for lack of diversity or federal question jurisdiction c. Supreme Court said there WAS jurisdiction i. §1257 applies to Supreme Court i. but was still subjected to CA’s jurisdiction. Court moving from the idea of “is it physically there” to “is it fair” a.S. Quasi-in rem jurisdiction (Doesn’t Exist anymore): Using property (and constructive service) to get to the person –property must be attached BEFORE judgment is entered. Issue of whether or not FL has jurisdiction). 2. so default judgment for π and land was seized. states only have territorial jurisdiction. Requires minimum contacts or physical presence. i. Key: Traditional notions of fair play and substantial justice replace the notion of territorial boundaries. Bank of the United States (U. even if  is not personally served. 1957) – Complete shift from Pennoyer. 1877) . Attachment: The legal term for an officially sanctioned seizure of property 4. Article III does NOT confer subject matter jurisdiction on the lower federal courts! 2. minimum contacts are enough to establish PJ. Specific jurisdiction: The claim itself arises from activities within a forum state. With respect to Federal Question. §1331 applies to federal district courts. Meyer (U. Pennoyer v. Obtaining personal jurisdiction? (Part I – Old Rule: Territorial jurisdiction) 1. Think McDonald’s. Court said “mere absence” from the state does not terminate state’s authority over the person – indicates a shift from Pennoyer. CA π buys policy from TX company – π dies. 1. it has been held that it also has the authority to define their jurisdiction. (1) “Presence” doesn’t really mean physical presence anymore >> minimum contacts is the new approach ii. was resident of WY but wasn’t in WY. the underlying claim (breach of contract) is directly related to the ’s contact with CA because contract is with a CA policyholder. a. within the territory. that is sufficient.  used a collateral attack. Court said the property was NOT sold under the court’s jurisdiction! The land was not attached before judgment was rendered i.  was personally served in CO. PJ has been waived. even if they are a non-resident 2.

” principle place of business and state of incorporation 1. Therefore. Neff told us that a state has power within its borders International Shoe says we can expand personal jurisdiction to outside of a state based on contacts Shaffer says we should evaluate all assertions of personal jurisdiction by International Shoe standards Burham (Justice Scalia) says “all” in Shaffer applies to all out of state (absent) s because of tradition.  is subject to jurisdiction in any federal court. Heitner . the  says wait. If a state court does not have jurisdiction. International Shoe. purposeful availment? i.” viii. so ’s state can’t enforce it a. Court also finds that there is general jurisdiction. Doubly fair when the activities of the  give rise to the claim against the . national contacts are all that is required. Quasi in rem. Minimum contacts and International Shoe applied to individuals a. π responds that  had activity in the state. Shift from Pennoyer’s focus on “is it physically there” to “is it fair. since the activities that were carried on there were continuous and systematic. had 13 salesmen in WA selling shoes. and dismiss the case ii. 2. specific jurisdiction using minimum contacts rule. He also cites that. Court can: i. There’s a DE statute that allows DE to sequester property in that state. RULES OF PERSONAL JURISDICTION FOR STATE COURTS IS THE SAME FOR FEDERAL COURTS 1. COURT SAYS ALL PERSONAL JURISDICTION INQUIRIES MUST SATISFY INTERNATIONAL SHOE 1. minimum contacts do apply to individuals. π alleges  corporation hasn’t been paying unemployment taxes in WA -. Personal Jurisdiction in state court v. The bad acts occurred in OR. Heitner 2. use of public goods.  argues salesman wasn’t an agent so can’t be served. State can have either general jurisdiction or specific jurisdiction over a corporation or individual: a. International Shoe() v. ii. not DE. Shaffer v. you don’t have jurisdiction over property. federal court 1. 14th Amendment’s Due Process Clause applies to state 2. 1. so stock is in DE. 2. Find personal jurisdiction. 5th Amendment’s Due Process Clause applies to federal courts. Corporation = “continuous and systematic contacts. BUT. Find no personal jurisdiction. v. Π asks ’s state to domesticate the foreign judgment a. vii. but not fleshed out very well. When it’s domesticated. Minimum contacts that do not offend the notion of fair play and substantial justice will constitute presence. This is risky because under collateral attack you can’t defend case on the merits! 7 . If you are subject to personal jurisdiction in state court. 2 ways of domesticating the judgment i. Court says the corporation’s presence in the state is based on the company activity there 1. Specific jurisdiction = “minimum contacts” (see below for a detailed outline on specific jurisdiction). and cause of action is NOT related to ’s contacts in DE i. the courts can conclude that you waive your jurisdictional objection. Collateral attack:  ignores original suit. Individual s own stock in DE corporation. Procedure varies from state to state i. 1945) – provides framework from SJ and GJ. and submit to the court’s jurisdiction! >> Modern rule: Now you can argue jurisdiction and the merits of a case on special appearance b. Some states allow  to file a special appearance – the  is allowed to appear before the court at the beginning of the action for the sole purpose of challenging its power to exercise personal jurisdiction over her. For this argument to be valid. loses by default. Presence of property or contacts in a forum state 2. these alleged breaches occurred in OR. Corporations can be subjected to the general jurisdiction of more than one state ii. Rule (4)(k)(1)(a) – Jurisdiction over a  in a FEDERAL court is limited to the jurisdiction of a STATE court a. However.S. International Shoe needs to apply to individuals. How do you challenge jurisdiction? 1. SUMMARY OF MODERN RULE OF PERSONAL JURISDICTION: 1. When  has activities in a state. Justice Brennan concurs with the decision but uses the reason that its “fair” (not tradition) for a state to have jurisdiction over a  that purposefully availed himself of the benefits of the state. but it must be weighed against the Cause of Action’s relation to the forum state when applied to individuals. so  can defend case on the merits or do an interlocutory appeal 2. thus.  argues that minimum contacts is not satisfied here. if  raises an objection that the court can construe as a defense on the merits. Then π takes judgment to ’s state and expects to enforce it (by full faith and credit clause). and the property has to be related to Cause of Action. b. vi. due to history (Pennoyer).π suing individual officials of Greyhound in DE for breaching fiduciary duty.iii. Minimum contacts 2 prong query: 1. then you are subject to personal jurisdiction in federal court within that state. Property is a contact. Direct attack: Challenge jurisdiction in the court the suit is brought in a. iv. Shaffer v. Requires that if a suit is brought in federal court. Washington(π)(U. issue of whether this statute was constitutional. Summary of Case Progression Pennoyer v. then the federal court does not have jurisdiction. Salesman was personally served. reasonable expectations provide adequate notice. Individuals = domicile b. Gets rid of quasi-in rem – person and property are no longer separate – if you don’t have jurisdiction over a person. Moving away from Pennoyer’s strict boundaries and towards fairness! 2. seeking a “judgment on the judgment” ii. General jurisdiction: i. Court said it was not constitutional. and  was sent service by registered mail. they are benefitting from the state: protection from laws. ii. Cause of action must be closely related to business in forum state. it is interpreted narrowly. π’s state never had personal jurisdiction over me. Statutory procedure: π files a certified copy of the rendering state’s judgment in the ’s state of domicile. Traditional procedure: File a new action on the judgment in the enforcing state.

choice of FL law clause in contract. fairness went against jurisdiction >> this case brings us fairness factors now : i. i. So if CS loses. Note: Be careful not to mix up “choice of law” clauses with “forum selection” clause >> here. Doctrine Constitutional Source Statutory Source Effect Personal Jurisdiction Due Process Clause (14th Amendment) State and federal long-arm statutes. Asahi Metal Industry Co. they could reasonably foresee being hailed into court in FL.g. unless they can prove that the product at issue was not brought to the forum state by regular business channels. the s in Worldwide didn’t necessarily know that the car would be in OK. More likely. Marketing the product through a distributor who has agreed to serve as sales agent in the form state. it’s a choice of law >> all disputes are governed by FL law.  did NOT purposefully avail themselves in OK >> like Hanson (see above). More apt to push into PJ rather than push out. World-Wide Volkswagen Corp. Brennan: Rudzewicz and partner are sophisticated businessmen and at no point did they act under financial duress of BK. while driving to AZ. The FF are a sliding scale test. But. attended training session in FL. Apply the minimum contacts test to see if the state has jurisdiction over the party (corporations) 1. INTERNET cases a. π.S. CONTRACT cases a. stream of commerce is NOT enough minimum contacts for upstream s. etc. 1980) πs. is not an act of the  purposefully directed toward the forum state. The ’s contacts here were: Paid money to FL. This is just the minimum contacts analysis – but that is no longer enough. v. ii. The co urt said there was jurisdiction. Superior Court . Court says if fairness factors are strong. knew they would be used in items sold in CA. no jurisdiction over regional distributor and retail dealer. Interstate judicial system interest in obtaining the most efficient resolution (where is the evidence) 5. 1. Minimum contacts here are kind of thin. ii. so it should be subjected to OK’s jurisdiction (because that’s where the accident happened). discretionary. and  would have waived/consented his personal jurisdiction. the  will be subject to PJ wherever products are sold. but after taking into account the fairness factors (see below). Fairness Factors: used when minimum contacts are iffy. C/A relates to activities s purposely directed to FL residents. Treated as a unit.  sells boiler to OH company.) Limits power of federal courts to certain kinds of cases (those involving federal claims or diverse parties.  sold a mobile product. from CA. Rule 4(k)(1)(a) Limits power of state and federal courts in any given state over cases involving particular s Federal Subject Matter Jurisdiction Article III Federal jurisdictional states (e. This is considered as a BROAD view of where manufacturers are subject to jurisdiction. c. whereas here s know its going to be sold in CA.S. without more.) d. Asahi was an outlier. Shared interest of several states in furthering fundamental substantive social policies iii. Rudzewicz . Stream of commerce considerations: determine if  PURPOSEFULLY AVAILED themselves to go above mere awareness. e. But there is no proof that this tank was bought in CA – it could have been purchased elsewhere and brought unilaterally to CA (like Denkla). etc. 28 S. who sues Asahi [indemnification suit – 3rd part lawsuit. so looked at fairness factors. wanted personal jurisdiction in FL. bought new car in NY. The Superior Court of Los Angeles County – Closer to GJ than SJ. Under both approaches.  has to pay. got into car accident in OK. Pavlovich v. 8 . ii. must be met. minimum contacts and purposeful availment were so non-existent that the other factors did not have to be considered. STREAM OF COMMERCE cases a. illustrated in Worldwide Volkswagen. Advertising in the forum state c. Minimum contacts NOT satisfied here. a. πs interest in obtaining convenient and efficient relief 4. FF are used to push  into PJ than to keep them out. residents of NY. No contacts with CA. Placement of a product into the stream of commerce. If there was a clause that said “all suits are to be in FL. 1. d. Buckeye Boiler Company v. New Standard: To determine PJ. 2. sometimes it sells directly to CA. Rule 4(k)(a)(1): Federal courts look to personal jurisdiction rules in the state they’re sitting in. Burden on  (tied in with foreseeability and purposeful availment) 3. Establishing channels for providing regular advice to customers in the forum state d. iii. FL is allowed PJ. sued because ’s boiler tank exploded. Therefore. some purposeful availment. 1332. Superior Court – (U. The court was split on the issue of minimum contacts.  needs to indemnify us..C §§1331. 1. who sends it to the plant in CA. If forum state has interest in the case 2. s here are “upstream” in manufacturing process. πs unilaterally went to OK. CS saying if we’re at fault its because of Asahi. If the  is a manufacturer. PERSONAL JURISDICTION IS WAIVEABLE 3. then jurisdiction will be okay even if minimum contacts are weak.. Woodson – (U. SPECIFIC JURISDICTION i. the objection to jurisdiction must be raised immediately or it is lost . Burger King Corp. π argues for specific jurisdiction. sues ChengShin (“CS”). 1987) π was in a motorcycle accident. Fairness factors can override weak minimum contacts.  argues this would gut PJ and nearly everyone could be subjected to the jurisdiction of every state if car is allowed to meet that requirement.S. BUT. v. i. Differences from Worldwide: There. Asahi manufactured valve. put a code on website that decrypted a code that protected copyrighted DVDs. b.” that’s a forum selection clause. both minimum contacts (purposeful availment) and fairness factors. v. iv. The court said that there is jurisdiction here. and sold to CS. In Worldwide. We now need fair play and substantial justice >> look at minimum contacts in light of fair play and substantial justice i. Therefore.3. the s were “downstream” – the car was already made. Can be used to defeat minimum contacts if it is close.BK suing π for breaching contract. In the present case. Designing product for market in the forum state b.g. resident of TX and went to school in IN. contract was in FL.

Does not rule out that “at home” might be broader than state of incorporation and PPB. purchased 80% of helicopters from TX. transfer agent. GJ – Are there systematic and continuous contacts with forum state? Court says no. Supreme Court says this is insufficient to establish PJ. c. But. Theory 1: Ripping DVDs causes injury in CA and website is viewable in CA. not standard test. π then created one but with video instructions. 1. ii.  preemptively files in NJ. Subjecting someone to jurisdiction would allow all of us to be subjected to jurisdiction wherever we purchased something. Policy Argument: No such thing as a “local” transaction anymore. b. Court disapproves “sprawling” view under which “any substantial manufactur er or seller of goods would be amenable to suit. NJ resident. general jurisdiction! So can sue in VA. agreed when π moved to CA. Wrongful death suit. Nothing in Shoe was about SUBTRACTING jurisdiction. even unsophisticated s. Perkins v. Look for general jurisdiction >> Here. Interactive – some exchange with people in forum. because then everyone could be hailed into court all over the country. 1. so we need to use the Zippo test to see if there’s specific jurisdiction i. so ordered discovery to find out. PJ is necessary because wife is looking for more than just the status of the marriage ($). salary checks. Corporation’s can’t physically be there ii.  had contacts in TX: flight by president to TX to negotiate contracts. NOTE though.Columbian company. i. π can argue in personam jurisdiction! Pennoyer v. e. that here. Brought suit in VA. i. GENERAL JURISDICTION i. New standard: Minimal sales are insufficient for GJ. wants to sue in OH in state court. No jurisdiction. i. Awareness that code is viewable in state isn’t enough.OH π owns stock in a mining company that operates in Philippines. a major post-Pennoyer case? a. Mere purchases. π afraid of being sued for copyright infringement. A corporation can be sued for any C/A in its state of incorporation OR PPB. C/A has nothing to do with OH. here. NO jurisdiction here. Not enough to confer PJ on the website alone. and . paid through a TX bank account. “At home” is similar to an individual’s domicile. Why not sellers? The idea is that we don’t want to discourage people form buying across state lines – it’d have huge effects on the economy.  didn’t really know that the effects of his harm would necessarily be felt in CA. BUT. General jurisdiction for a CORPORATION: 1. b. the state has PJ over you. Not enough to confer PJ just on the basis of the website’s existence. CA resident. How do we distinguish Pennoyer and Shoe. even occurring at regular intervals are not enough to confer general jurisdiction a. All assertions of state court jurisdiction must be evaluated according to the standards set for the in Shoe. No specific jurisdiction because ’s presence isn’t related to the underlying C/A (the divorce). Helicopteros. Also. Brown – NC teenager killed in bus accident in France. 1. International Shoe dealt with absent  >> so it EXPANDED personal jurisdiction. sent pilots to train in TX. she’d file for divorce in CA. No mining property itself in OH. had directors meetings. repeatedly enters contracts with people in forum. SJ – C/A has nothing to do with TX. Establishes PJ. Neff 1. Active – clearly does business. sued in TX by relatives of people who died in a helicopter crash in Peru. 2. court said that the activities were “systematic and continuous” so there is jurisdiction. If s contacts with a forum state are so systematic and continuous.k. Effects test: Look at effects of intended injury! a. Passive – just posts information. ii. A court may assert GJ over foreign corporations to hear any and all claims against them when their affiliations with the state are so continuous and systematic as to render them essentially at home in the forum state. the C/A here is a declatory judgment for copyright infringement – it’s if π’s product breached ’s copyright – so ’s sales in forum state have nothing to do with COA! So NO SPECIFIC JURISDICTION!!!! ii. 1. must be investigated further c. No general jurisdiction >> no continuous and systematic activity and domiciled in NJ. They were in NJ.i. C/A was pilot error. BUT. i. General jurisdiction over an individual where they are DOMICILED a. being physically in the state). No SJ. Goodyear v. bank accounts in OH.  doesn’t pay dividends.  sold products everywhere. π can bring his claim to TX or IN – there might be jurisdiction here if π had no where else to bring his claims e. General jurisdiction for an INDIVIDUAL: 1. both are internet companies. it was internet business – so a website could be in itself enough for general jurisdiction if it has tons and tons of sales in the state to constitute systematic and continuous activity. When  goes to CA for business. Ressler said that this is “THE continuous and systematic case” i. President of company went to OH during Japanese occupation of Philippines. d. make sure it’s okay to. i. ZIPPO test: used when dealing with the INTERNET & SPECIFIC JURISDIICTION a. b. GJ because small and continuous flow of affiliates reached NC through stream of commerce. Too much PJ. . Parents bring suit in NC against 3 subs and parent company. a. Scalia: long-standing principle that if you are in the state. Burnham v. NO tag/transient jurisdiction for corporations – (a. Don’t penalize people for their purchases. 9 . Theory 2:  intended to cause harm in CA 1. Lower courts: No SJ because C/A had no relation to NC. so sought declatory judgment [before you release product. b. Shoe and minimum contacts only applies to ABSENT DEFENDANTS!!!!! i. it’s possible that no one would use the code! He didn’t really know for sure that someone would use it. etc. Helicopteros Nactionales de Columbia v. but lawsuit dies. Hall . there aren’t enough facts to see if there was systematic and continuous activity. Personal jurisdiction is appropriate if effects of ’s conduct is felt if he intended to harm there i. War time emergency. minimum contacts does not work and π never bro ught it up. Coastal Video Communications . Here. General jurisdiction. BUT. Superior Court π.” a.a. BUT.a note case –  created back support product first. office records in OH. Tires designed overseas by GY subs that make tires for Europe and Asia. Benguet Consolidated Mining Corp. on any claim for relief wherever its products are distributed. π sues him for divorce. the court need not address the relationship between the C/A and the contacts with the forum state.

National Equipment Rental v. Inc. Jones III. Introduction – everything above is official power of the courts. Szukhents . If  agreed to cognovits. Individuals i. d. International Shoe. it is unnecessary to evaluate minimum contacts – consent alone is sufficient to establish jurisdiction. it is allowed. By appointing an agent. CONSENT i. Note: Divorce is an exception to Pennoyer! 1. Specific jurisdiction a. The effect though is that it does discourage lawsuits. but it did NOT require that the suit itself be brought in NY. COGNOVIT clauses . Appointment of an agent in a forum is consent to personal jurisdiction in that agent’s forum. Limit foura where  will be sued and lower costs for customers. Note: This clause was permitted. This is just another mechanism of consent. Heitner c. “Continuous and systematic”. wanted to centralize litigation in FL. 1. Shute . Forum selection clauses can be enforced only if they are fundamentally fair. Continuous and systematic [?] iii. consent to jurisdiction in a forum. 1. d. Parties can agree to choice of law (ie: Burger King) or choice of forum (ie: Carnival Cruise Lines) ii. Shaffer v.ii.e. Individual i. iii. some say  must really benefit from clause. The service of process was obtained by force or fraud. This is a form of consent. State can have either general jurisdiction or specific jurisdiction over a corporation or individual: 1. Principle place of business. CONSENT AND NOTICE a. International Shoe. Special interest for  . A  may. There is “tag” jurisdiction over individuals!! f. you expressly consent to service of process and PJ in a forum. the ticket had a forum selection clause. it’s also how to split up the assets. so no jurisdiction. Corporations can be subjected to the general jurisdiction of more than one state b. ii. Corporation i. EXPRESS CONSENT (contractual consent) a. b. Here.parties specify that disputes can be heard only in a particular court. not when the case is filed. etc. was injured on the ship. the status of the marriage isn’t the only thing at issue. Forum Fairness factors: a. Parties can consent to choice of law. and the previous π becomes the  >> shifts burden 2. don’t argue that π could have just not gone on the cruise.) i. i. That’s a forum selection clause c. Carnival Cruise Lines.Szukhents leased farm equipment. If it is to dispel confusion and keep costs low. Corporation i. The Supreme Court held that this FSC was enforceable. A party can appoint an agent for service of process. b. v. vi. Notice – FSC was on ticket. b. not about a “take it or leave it aspect”. 2. Motive/Reason – if it is to discourage lawsuits. so they had lots of negotiation power. and then sets aside judgment. ii. Domicile ii. 1. you’re really involuntarily there. Shaffer v. State of incorporation 1.Shute bought tickets on the ship. “Minimum contacts” 1. Tag jurisdiction 2. Fairness is measured at the time the contract was MADE. 2. π can set aside judgment >> not good for  because it SHIFTS the burden. iii. APPROACHING THE JURISDICTION ANALYSIS: i.automatic judgment (The win goes to the party that wanted to include the clause originally. iv. 10 . “Minimum contacts” (see below for a detailed outline on specific jurisdiction) 1. Heitner ii. Brennan’s Concurrence: If you’re tricked into the jurisdiction. If a party consents to a court’s jurisdiction. c. HE becomes π. (“bad faith”) court will not allow FSC. Supreme Court said this was okay. Open to negotiation – This factor concerns the π’s ability to negotiate the contract. and. Some courts say this is illegal. ii. i. Calder v. Status of the marriage can be adjudicated without PJ. “Effects test” i. v. on the back of the lease was a clause saying that the company designated a person in NC as agent for purposes of accepting service of process. FORUM SELECTION clauses . Internet business? Use Zippo test b. i. either at the outset of a lawsuit or before it. didn’t want to be sued everywhere. General jurisdiction: a.

notes case) State authorities sent 2 certified mail notices to a house. There was a Due Process violation – first certified letter was sent back. Introduction 1. Since statute did not require notice. owner sues to get the house back. it was unconstitutional. Alternative dispute resolution [“ADR”]: Dispute goes to a private adjudicator ii. Minimum contacts [Due Process!] a. watch out for “and’s” and “or’s” 11 . Both MUST be met in order for a court to have power over . Reasonably calculated – the form chosen is not substantially less likely to inform than other customary substitutes (Due Process Clause) 3. a. you need to give notice! Separates PJ from notice. method is important. Note: There is an issue here >> ADR is private.H. Supreme Court said this is NOT okay. Appointing an agent is NOT enough. Note: What’s an argument that certified mail is okay with Due Process? It was owner’s responsibility to let people know where he’s moved. so they should have done something else. but the Sec. but parties can contract around procedure and agree to their own . Rule 4 must be satisfied. The law allowed notice by publication. (Stevens in Carnival Cruise). the method chosen must not be substantially less likely to inform beneficiaries. NOTICE TEST: 2 prongs. 2. Jones v. 2. Court said it was a DP violation – certified mail didn’t work the first time. Rule 4(h)(2) applies 3. public never knows what’s going on. Constitutional requirement for notice: 1) reasonably calculated to inform 2) not substantially less likely than other means 5. Rule 4(e): Serving an INDIVIDUAL in the U. 2.ii. BUT. 2. Definition of NOTICE: A π gives notice of a pending action when she serves the summons and a copy of the complaint on the . Must reasonably convey the required information. Today. (1) Follow STATE law of whatever state we’re in [state can be where you are serving or where the suit is] b. Rule 4(g): Serving CHILD or INCOMPETENT person [someone who for some reason has a diminished capacity for understanding what’s happening] a. NOTICE i. ii. i. b.contract says the dispute will go to a private adjudicator i. Both CONTACTS and NOTICE are required >> Due process requires both! 1. then national personal jurisdiction is met. The court says notice is sufficient by regular mail. of State of NJ is agent for drivers going through NJ. of State is NOT required to give drivers notice. Flowers (Page 148. ARBITRATION clauses . Central Hanover Bank & Trust Co. If a  is served OUTSIDE the U. One of the conditions was that every 3 years there had to be a judicial settlement of accounts (essentially an audit).Statute said that Sec. The available methods under Rule 4(h)(1) parallel the methods for service on individuals under Rule 4(e). b. Courts say that this is okay 1. Collective interest plays a large role here. Look at the rule itself 5. PJ is not ok without proper notice. notice doesn’t actually have to be notice >> the letter was reasonably calculated. BUT..S. (4) Deliver papers to agent. and state had other methods of finding him! Certified mail is insufficient when returned to sender. 2. e. (3) Leave copy at individual’s dwelling with a person of suitable age and discretion residing therein d. IMPLIED/IMPLICIT CONSENT – Consent based on the State’s power.NY banking law allowed various trusts to pool assets.S >> what are the appropriate methods for doing so? a. The Rules of Procedure is the default. Rule 4(h): Serving CORPORATIONS or other entities a. 6. But. ii. . Based on minimum contacts etc. House is sold. 2 pronged analysis for NOTICE: from Mullane a. Notice was mailed to the known beneficiaries. does NOT need to be “ACTUAL” notice >> just “reasonably calculated” iii. v.. VERY specific rules. Overmyer Co. The court said publication for the non-existent ones was okay because it was not substantially less likely than alternatives to inform. itself: a. RULE 4 governs service in FEDERAL court 1. Must take practical steps.S. If a  is served IN the U. i. Rule 4(h)(1) applies i. some of the beneficiaries did not exist at the time the trust was formed. it has to be the state law in the state the service is made. courts have said that service of process = jurisdiction.S. to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. but owner does not live there. D. (2) Personal service [anyone above 18 years old AND is NOT a party to the suit (Rule 4(c)(2))] c.” Mullane 1. because those who didn’t get notice will have their interests protected by the other beneficiaries who received notice. Frick Co >> notes case >> said that cognovits clauses were okay. iii. Look to state statutes. (1) Look at STATE law. Notice is the other primary requirement for exercising personal jurisdiction. AND. Bell South & Merriman (see below in long-arm statutes) iv. which is usually not okay. PJ is separate and distinct from notice. Pizzutii . Rule 4(i): Serving the U. and can’t set precedent in ADR for these public wrongs. Mullane – it satisfied the statute but was NOT constitutional. Where notice is not guaranteed. and afford the parties an opportunity to present their objections (Statutory) b. Mullane v. Service of Process must be “REASONABLY CALCULATED under all circumstances. b. reasonably calculated (Page 144 of textbook): a. NOT where the cause of action is 4. 4. but did it in a way that suggested that it will be limited to circumstances in which the party signing the note understands its effects and receives substantial benefits in exchange. ADR sometimes addresses public wrongs. If statute authorizes service of process. Wuchter v.

iv. Mwani v. never reaches constitutional analysis.S. Benefits to : (1) Cheaper. Rule 4(d):  gets 30 days to answer the waiver – more time of  agrees waive [a benefit] – rules usually require 20 days. c. Downfalls to : (1) Statute of limitations may run (Rule 4(d)(4)) 3. Bin Laden (Family members of victims in the US embassy in Kenya bombing >> served by publication – Rule 4(f) – serving individual in foreign country >> Rule 4(f)(3): “By other means not prohibited by international agreement. Under this rule. you can be subjected to personal jurisdiction on a counterclaim even if the original suit ends! a.) b. The long arm statute said that if it was a substantial and not isolated activity then there is jurisdiction. He can still waive it a. a COUNTERCLAIM can still remain >> if you sue in a state. i. Corporations who didn’t file >> there was no express consent. in second suit Brown’s wife sues Gibbons. NOT where the economic harm takes place. but does find specific jurisdiction. Same two-step analysis as notice >> (1) statute? (2) constitutional? ii. BUT.” We don’t know where Bin Laden is. Crompton (KS resident suing tire manufacturer for engaging in price fixing – some corporations filed a certain form. WI citizen in KS for child support. they can be sued elsewhere. the  has a DUTY TO AVOID unnecessary expenses. For the companies who filed that form there is due process. Pitfalls: 1. Benefits v. Without long arm statutes every decision would become a constitutional issue. 2. RECAP: Court looks beyond long-arm statute here to look for general jurisdiction – it does for some s. court says that service of process = personal jurisdiction. So step 1 is okay >> now we do constitutional analysis. since it was express consent. Says that general jurisdiction comports with DP 2. Example of a good cause to refuse to waive service? Would it be that there is no jurisdiction over the ? 2. Long-Arm Statutes a. BUT. Not about extending jurisdiction. A state CANNOT expand jurisdiction beyond the Constitution >> so. (So π should do this if she wants to sue an individual in the U. Then looks at long-arm statute for specific jurisdiction over other s 3. page 172 of rule book. When are State long-arm statutes enforceable? i. But. 12 . wants to sue . iii. 2. Rule 4(d)(2): Court imposes cost of service on a  who refuses to waive service without a good cause [a penalty] a. notes case). So. (2)  can’t defend on improper service 2. Long arm statute says if you commit a tortious act in the state. Served  in WI. c. there was no jurisdiction over Gibbons. KS statute allowed her to do this >> no issue with notice. Carrington v. jurisdiction is granted via long-arm statute. Note: The tort occurs where the INJURY takes place. and for some it doesn’t. This form needs to be sent if π wants to serve  and have him waive the service of the summons. WAIVER i. Waste state resources. 1. Introduction i. A state may decide it does NOT want personal jurisdiction over certain cases even though it constitutionally has it 1. then you’re subjected to personal jurisdiction. A π can ask  to WAIVE service of process >> it is an ALTERNATIVE to actual service 1. by definition. Merriman v. Schutts (π. he could be in the US. Rule 4(d)(5): Waiving service of summons does NOT necessarily mean you’re waiving right to contest jurisdiction. but court says that this is not satisfied. Downfalls to : (1) If  does not waive for a good reason  will incur the cost of personal service IV. b. at a minimum cost).) 2. And it satisfies due process) i.  can waive service of the summons >> waiver form is FORM 5. Rule 4(d)!!! a. There is no proof that  is the father. Is there a statute that authorizes it? a. it’s about restricting PERSONAL jurisdiction that the state constitutionally has. Reingold (π retained . iv. b. Gibbons sues Brown in first suit. a TN lawyer – lost suit because  didn’t do anything [default judgment] and so he sued  – Court finds no jurisdiction under the state’s long-arm statute. Why should  waive service of process? 1. don’t want to deal or interpret other state’s law. KS citizen.a. Gee v. Saenger (page 156. What if  wants to contest jurisdiction? 1. but was there implied consent >> do systematic and continuous a nalysis! Court finds no general. but here it’s okay because it’s not substantially less likely than any other method. Gibbons v. In second suit. a. ii. iii.) This is a good example of a case that stops after the first step. Does the statute comport with Due Process Clause of the 14th Amendment? a. court says there is NO personal jurisdiction. which has written consent that actions may be commenced against it by service on the secretary of state >> there’s a long arm statute b ut there is no notice requirement >> this would not be okay under Wuchter! But. Brown (Car accident in CA. long arm statute are more restrictive than the Constitution Federal Statute/Rules Rules Long arm statutes Constitutional? Due Process Due Process Notice Personal Jurisdiction b. here it was not a tor t >> consensual sex is NOT a tort. Benefits to : (1) Extra time to answer complaint 4. Then says that specific jurisdiction is okay with DP 3. Two-step analysis: 1.

Does it/does it not comport with DP ii. Introduction i. not over the 3rd. §1391(c): NOT a separate venue provision – teaches us the residence of a CORPORATION for venue purposes is based on where corporation has the most contacts. Yes: Do due process analysis 1. look at the cause of action! For the copyright claim. All 50 states have their own venue statutes ii. 1. 3. c. the court does fairness factors >> we do fairness factors if contracts’ sufficiency are NOT sure (because “contacts” in itself is a notion of fairness”. if all s reside in the same state. it means that there could be another statute that applies >> then we have to look at the actual copyright statute itself! Venue is proper for copyright claim. BellSouth Medical Assistance Plan (π’s daughter needed healthcare. PERSONAL JURISDICTION ANALYSIS: 1. Venue considers the convenience to the parties.ii. Personal Jurisdiction trumps venue b/c it is a Constitutional issue. i. Where the action arose. Peay v. Here. which applies to states). (a)(3): If there is no other option. ’s contacts were “fatwas” published in the US. Long-arm statute? a. c. Venue a. so the 3rd one is gone – for venue. “combined” and supplemental jurisdiction cases – in cases where jurisdiction is NOT based solely on diversity. 1391(b) applies because it’s a federal question >> it says “except as otherwise provided by law. go through ALL provisions of the long-arm statute to see if one of them fits the case!! v. FEDERAL VENUE i. says its enough and then does fairness factors and says yes to personal jurisdiction. purposeful availment). ERISA). Mwani v. venue is proper in any of the following districts: a.” iii. QIC v. (a)(1): A district in which the  resides. Just because venue is proper doesn’t mean the case can be tried there. Here the court says it is fair (foreseeability. §1406 is used to change venue when venue was improper in the original court b.  moved to dismiss for improper venue & improper jurisdiction. Yes: Due process analysis 2. Williams (Diversity case – π suing  for copyright claim. as a whole – why? Because we’re looking at Due Process through the Fifth Amendment! (not the 14th. b.C. insurance company didn’t pay 100% for the treatment – sued  in federal court (federal question. Note: In Asahi footnote (page 107) the court says it is NOT going to consider whether aggregating federal contacts across the nation is constitutional >> here we make a big assumption that it is. Same as (a)! (see above). Court said that issue of jurisdiction is met because it is the same as service of process >> so jurisdiction! Then do second part of the analysis >> 4(k)(2)(a) says only if  is NOT subject to another state (unlike the case in Bin Laden) use national contacts – no national contacts here! Court looks at ’s contacts in the state. iii. iv. power cord of ’s cell phone was shipped to VA. went to doctor in UT -. (a)(2): Any district in which a substantial part of the events or omissions giving rise to the claim occurred.C §1391: Primary federal venue statute 1. it’s contacts with the nation as a whole. it’s not contacts with D. b. No: No jurisdiction. we take each judicial district as if it were its own state. iv. General jurisdiction? 3. the tort did NOT occur in the district! 13 . Where the  resides 2. Venue statutes usually include: 1. Long-arm statute for general jurisdiction? i. (b)(1): NON-DIVERSITY >> venue in federal question. Personal jurisdiction? V. STATE venue i. It is harder to DEFEAT personal jurisdiction than it is to CONFER it (like we said in Burger King). Note: Because §1391(a) and (b) are almost identical. Personal jurisdiction over two of the s. This is a catchall in case neither of the other two apply 2. venue is in play in any of the following districts: a. and trade secrets. i. Bin Laden (see above). (a)(1): Diversity – In cases where SMJ is based SOLELY on DIVERSITY. For corporations. ii. ii. i. a. it’s contacts with the U. i. Federal long-arm statute is RULE 4(k)! Same analysis! a. THEN. Go through each provision of 4(k) to see if there is personal jurisdiction >> 4(k)(2) works! So then the Court says that DP is okay too >> here. any district in which any  is subject to personal jurisdiction at the time the action is commenced. It’s about “which court a particular case may be filed in in a particular court system. there are no constitutional requirements. scheduling of interview with  organized in the US. Omni Capital – 1987 Supreme Court case – federal statute there did NOT provide for personal jurisdiction vis a vis service.S.S. Venue is the place the legislature requires a particular action to be brought. §1404 is used to change venue when venue is proper but not convenient v. What about the tort (trade secrets) claim? Venue is improper. 28 U. specifically. Concept of venue is not required by the Constitution 2. c. but it could be a potential issue. REMEMBER. breach of contract. b. Note: We still don’t know whether national contacts are enough because in this case 4(k)(2) didn’t apply. 2. What about FEDERAL long-arm statutes? 1. No: Is there a long arm statute for specific jurisdiction? 1. interviewed on CNN which was transmitted to the US! So contacts are sufficient. iii. Venue is a purely statutory concept.” So. the same interpretive rules generally apply to both.

e. the court must also have personal jurisdiction over the alien  b. Gilbert/Gulf Oil factors: Use these factors to determine whether forum non should be granted a. allege s were engaging in price fixing and restraining trade. When can a party move a case under forum non conveniens? 1. 4. SAVINGS STATUTE >> When a  fails in a case other than on the merits.) d. proper notice. Inter-Contentinal Hotels Corp.S. Private factors: Factors related to the individual litigants i. the Court stated that the wreckage and other witnesses where in Scotland making it the more convenient place.b. so we do the entire analysis all over again with the SMJ. 1391(b)(3) may apply >> where  may be “found” is where it is subject to personal jurisdiction – court says we don’t have enough information regarding ’s contacts to determine if it is subject to personal jurisdiction. whichever comes later. (d): Provides that an ALIEN may be sued in any district. Evernthing happened in Egypt. Even if we have personal jurisdiction. FORUM NON CONVENIENS i. (Page 170. (see box at end of outline). shot hotel owner who was based in NY >> form non. Guidi v. Hevafil (π.” But  here is found abroad. So we go to federal venue statute >> aliens may be sued anywhere >> so venue is okay for the foreign s. A court can dismiss on forum non grounds even if it doesn’t have personal jurisdiction because there’s really no penalty! d. Forum non is a COURT-CREATED doctrine that allows a court to dismiss an action even though venue is proper. the  may commence a new action within a year of the first case or within the statute of limitation. Chryslyer Corp. 3. that the court did the entire personal jurisdiction analysis BEFORE determining if venue was proper. Whether a judgment by the chosen court would be enforceable in the place where ’s assets are located b. The comparative overall costs of litigating in the two places iv. Forum non cases: a. Relief of Court congestion. A court can make a FORUM NON ruling even though it does NOT have PERSONAL JURISDICTION! 1. etc. For the public factors. court dismissed for forum non and said that economic inconvenience is NOT enough! 1. Note: there is a difference here >> in Guidi it was a US citizen. BUT. b. Having a diversity trial in a forum that is @ home w/ the law v. ii. Language issues vi. Reyno (Supreme Court case – Plane crash in Scotland. a. 2. Where the witness and physical evidence are located iii. Forum non analysis looks at: a. The Clayton Act applies here >> lays venue where  is found or where it “transacts business. notice. Conflicts of law 1. To determine if venue is okay for US s. Why is this okay? Forum non is NOT a dismissal on the MERITS >> so there is no claim preclusion! b. note 7) πs are US citizens. Presumption iii. Rule 1404(a): For convenience purposes mostly [when venue is proper] 14 . SDNY is NOT the same as EDNY >> they are both appropriate venues because both are in NY state. Piper v. note 7(b)) – Mexican π sued Chysler – airbag killed child – tried to bring it in TX – it costs more to litigate the issue than Mexico grants relief – so technically no reief! BUT.e. so orders discovery. There is a presumption for the π’s choice of forum! a. iii. Court says that we need more discovery to determine if there is personal jurisdiction [minimum contacts] – the district court doesn’t do personal jurisdiction analysis because its dismissed under forum non. with foreign πs. Whether it would be possible to compel witnesses to testify in the forum chosen by the π v. π sued  for backdating bill of lading. (Page 171. purchasers of s product. State  State ii. plane manufacturer and propeller manufacturer are in US. c. in Gonzales it was a Mexican citizen >> presumption of π’s forum choice in Guidi 3. iv. shot in Egypt. Having local issues settled locally. TRANSFER i. BUT. and Supreme Court says its okay!) a. For purposes of venue. Introduction 1. Dee-K v. and then  sues π in second suit for misrepresenting vessel’s quality and shipment. Public factors: Relate to the court system i. and venue. Where the underlying events occurred ii. Federal  Foreign b. Jury duty burden. we still might not want to have it because of CONVENIENCE! 2. it is unclear whether they can set conditions in the new forum. State  Foreign c. Sinochem v. that presumption is weakened. grants forum non and sends case to Scotland) For the private factors. treat each district as its own state >> i. Gulf Oil factors b. ii. Malaysia International Shipping (Supreme Court – 2007 – In China. Here. Court applies the private and public factors here. BUT the case belonged in the US! π’s choice of forum if he is US citizen is favored! Case stayed in U. Why? Because foreign πs will forum shop (choose a forum that has most favorable law) i. the Court stated that Scots law would govern and that Scotland had the predominant concern with the dispute. Note. When a court dismisses for Forum Non w/o deciding personal jurisdiction. Gonzales v.

These claims arise out of original claim & don’t involve 3rd parties where there is no jurisdiction b. Joinder of CLAIMS 1 3 2 The difference between 2 & 3 is that the  brings in 2 but 1 brings in 3 *A third-party claim [ becomes π in the other claim] i.  argues no airport in that division. There are two types of joinder: 1. TRANSFER v. but no personal jurisdiction >> 1406(a)! b. VI. Great Lakes Rubber Corp. (3) Will substantially the same evidence support or refute the π’s claim as well as ’s claim? d. A claim b.  wants to transfer to a different division of the Southern District of TX >> TRANSFER APPLIES WITHIN A DISTRICT AS WELL!. the law that is used is the TRANSFEROR’S law >> case was properly in the forum. A “yes” to any of these indicates that the claim is compulsory! ii. notes case). the law used is NOT the transferor’s law! Case was NOT prop erty in the original forum. (Counter/Cross) Claims are swords – they allow recovery from the  c. but no jurisdiction >> Volkswagen!! Accident in OK. change is only for convenience. (2) Would res judicata bar a subsequent suit on ’s claim absent the compulsory counterclaim rule? c.1. but there are certain cases where you SHOULD >> if you don’t you may be bared from bringing the other claim (i. Rule 18: A party asserting: a. Note: States may use different terminology d. Then.e. Colonial Penn (Breach of contract case. Joinder of claims . iv. Defenses/Answers are shields – they bar recovery from  ii. Plant v.  must bring a COMPULSORY counterclaim! a. Under this rule. Policy: Convenience and efficiency 2. Herbert Cooper Co. said there is federal jurisdiction because of antitrust claim. Says it arises out of the same set of operative facts. Joinder of parties – Governed by RULE 20-21 3. A counterclaim i.Governed by RULE 18 2. Transfer is within districts. Court says π’s choice of forum is favored. Sets 4 alternate tests for “same transaction or occurrence”: a. i. to a foreign court or to a different state. 3. Blazer (π alleges  violated Truth in Lending Act.  b. Introduction i. i. (1st lawsuit – unfair competition. Example where venue is good. Joinder of Claims and Parties a.  files a counterclaim stating that π did not pay the debt – Court says it is a compulsory counterclaim.  counterclaims an antitrust claim >> π’s claim la ter thrown out for lack of SMJ – counterclaim is left. you cannot bring it later! (Use it or lose it!) c.. π refilled antitrust claim against  >> files it as a counterclaim. §1631: Case can be moved >> if you file in improper court because of no SMJ. Why? Because of the law we are supposed to use! iii. Compulsory counterclaims allow claims into a court which may not otherwise be appropriate (ie: Torts in Federal court)  This is called supplemental jurisdiction 15 . claim preclusion) 3. in federal court because of alleged diversity.) ii. 1. but court can sever any claim against a party. Introduction: 1. Courts may add/drop/sever parties in a claim for the sake of the case Rules 42(b) & 21. v. etc. Court allows it because its compulsory) 1. (Page 747. May join as many claims against . Rule 21: Deals mainly with misjoinder of claims. Rule 1406(a): Used when venue was improperly invoked 1. Rule 42(b): A court MAY separate claims for convenience >> can separate trials 4. Note: Piper also discusses this – the s moved under 1404(a) and 1406(a) before bringing up forum non. So we need to know WHY we’re changing venue! a. If you don’t bring a compulsory counterclaim now. (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? b. (4) Is there any logical relation between the claim and counterclaim? [ majority rule] i. Forum non is a dismissal. ii. It does not say you MUST. so original forum’s law is used! a. Smith v. FORUM NON 1. and statute of limitations will be as if it was filed in the other court. RULE 13(a): Must state as counterclaim if it arises out of the same transaction/occurrence as the original suit. court says no. No subject matter jurisdiction? 1. Must  bring a COUNTERCLAIM? 1. so venue would be okay. Also used when personal jurisdiction is lacking as well! a. Under this rule. so that law cannot apply! 2. it will transfer to the proper court. 2.

then court consolidates it. 3. What are other ways to get rid of impleader? a. CTB (1 π. Amount in controversy NOT needed for supplemental jurisdiction (but it still needs to arise from the same case or controversy) a. Multiple πs.” 1. Court declines to extend supplementary jurisdiction under the discretionary factors! There are novel/complex issues of law and state claim predominates. so here it is okay. RULE 13(b) b. Uses “logically related” test). Joinder’s standards of “transaction or occurrence” are more narrow! Joinder’s rules more narrow than supplemental jurisdiction ii. 2. Remember. sues appraisal guy for over -valuing home – violating Truth in Lending Act – has state law claims as well – states that  over-appraised home to get higher mortgage. so is he. multiple s b. Sues under Title VII and under state PR law. Why allow this? Because its derivative liability! Plenty of incentive for 2 to see 1 win the case and π lose. Introduction: 1. Joinder is okay here >> it’s a POLICY of discrimination – they were working at different plans. Need Cause Of Action to arise out of the same transaction or assert right to relief jointly (unlike joinder of claims) b.) i. the third party π) may have against π >> like statute of limitations 1. There is none. 1 wins in suit against π iv. (c) Discretionary factors 1. When is there supplemental jurisdiction over a claim? 1. (a) Authority for supplemental jurisdiction >> its “case or controversy. Court says its okay). Court can use its discretion [usually for issues of efficiency/complexity] b. iii. they may be sanctioned >> Rule 11(b)(2) & Rule 11(c). (a)(1): A party may be liable to it for all or part of the claim against it. Price v. If parties join claims and it is not permitted. Basic joinder of parties cases: a. there are other compelling reasons for declining jurisdiction b. it MAY still be brought as a counterclaim a.2. Even if it does not arise out of the same transaction. The district court has dismissed all claims over which it has original jurisdiction 4. Once you have property joined a party or claim. 1 joins 2 and counterclaims π ii. Rule 21: Court says you should bring a party in 4. Any question of law or fact common to all πs arise in the action i. If court dismisses it using discretion. 3. Rule 20(a)(2): Same standard as joining πs a. π sues 1. GM (πs suing  for discriminatory employment.  does not want joinder >> going to say it does not satisfy Rule 20(a)(1). 1. then there will be supplemental jurisdiction a. 1. etc!!!! d. but it’s a COMPANYWIDE transaction. Rule 20(a)(1): Rule for joining πs: a. Note: Rule 18 would not make any sense without Rule 13(b) c. π sues . c. In Re Ameriquest (π suing bank for overstating mortgage. if it destroys diversity. Court says no supplemental jurisdiction – first it must determine whether the PR state claims are part of the same case/controversy. Builder sues nail manufacturer in an indemnification suit – idea of derivative liability >> if I’m guilty. so then looks at discretionary factors. You have to file a compulsory counterclaim or lose it.a. amount in controversy was really an efficiency matter. 1 sues 2 d. Note: π could bring both Title VII and state claim in state court because of state’s general jurisdiction. (2)(c):  who is brought in under the impleader can brine a defense to π that the original  (a. Judge determines if the impleader is okay >> look at case law!! ii. iii. 2 s – π suing builder >> chicken coop case. Diversity is to avoid court bias. one  c. 2. 2. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction 3. (b) Diversity exception >> even if claims are the same part of case/controversy. Joinder of PARTIES i. There is supplemental jurisdiction over state claims that are so related to the claims in the original action that they form a part of the same case or controversy under Article III of the Constitution a. 1 π. then look to see if there is a diversity issue. Rule 14: 3rd party practice i. By s 1.k. The claim raises a novel or complex issue of state law 2. First Bancorp (π fired for reporting employer’s illegal conduct in PR court. no supplemental jurisdiction. you can bring it elsewhere! 16 . SUPPLEMENTAL JURISDICTION i. We need supplemental jurisdiction for these claims >> we’re in federal court because of federal question. and it occurs in the same transaction or occurrence. If we have a COMPULSORY COUNTERCLAIM. we need to determine whether the appraisal was too high >> common operative fact. If we have a mandatory claim. Exceptional circumstances. Rule 42: 2 separate suits are brought. How do we know if IMPLEADER is appropriate? a. Mosley v. the next question is whether there is jurisdiction to do so ii. Court says that there is supplemental jurisdiction – in order to determine if mortgage was too high. joinder is just one part of a multifaceted question!! You still need personal jurisdiction. then it must have supplemental jurisdiction! b. By πs 1. 28 USC §1367 i. Szendrey-Ramous v.

Issue preclusion comes into play when a claim is not barred from subsequent litigation.k. Van Noorden (Page 218. Note: π’s autonomy/choice a theme in civil procedure? 2. but it’s the wrong venue? a.  can move it >> it is NOT for π! π cannot remove to federal court! 3. Strawbridge does! b. a. π inured while using ’s bulldozer. ALL ’s must agree to remove 3. Two parts of former adjudication: 1. has to be in state court. rather  just gives notice that its happening. we do not look at venue >> venue does not matter for removal. a. iii. CLAIM preclusion >> claim preclusion is COMMON law i. How do we remove? 1. Broad test >> “Suits arise out of the same transaction” (leads to more claim preclusion). Issue preclusion a. 3/10 & 3/11 notes for answers VII. What if the case is removed to federal court. 1996 – KY state court. Citizenship is determined at the time of filing! i. Then notify the other party. containing a statemen t for grounds of removal. A. Removal does NOT require permission (does not need to file a motion). 1. No completely diversity. Sidah (see above – the Greek citizen in MD case).  cannot object >> 1447(d) – stays in state court! 2. Capron v. we take away π’s autonomy! 2. a  cannot remove just because the court dismisses the claims of all nondiverse parties! i. in former litigation. §1441: If it could have been in federal court in the first place. §1441 b. it can be removed by  there. even though Rule 18 says “may” b. you cannot waive SMJ. when does diversity need to exist? a. See page 213. Simi larly. Caterpillar v. c. Introduction i. When can a case be removed? 1. If π has a state claim. c. District Court did not remand case to state court. REMOVAL i. Introduction 1. This does not apply to POSTFILING ACTS BY A π THAT CREATE DIVERSITY >> for example. If the  is unhappy with removal they can motion to bring it back. Then it’s done! You’re in federal court b. then  has a federal counterclaim and say that then it is okay for federal court. If it is remanded to state court. If a case can be heard in federal court because of diversity. note 3). BUT. Narrow test >> “Same core of operative facts” (leads to less claim preclusion) b. Claim preclusion forbids a party from litigating a claim that was. the  can move it! a. Usually π’s choice of forum gets a presumption. Consistency 2. 17 . but some issue involved in that claim that was actually previously litigated. Former Adjudication/ Claim & Issue Preclusion (Civil Double Jeopardy) a. if π voluntarily dismisses his claims against all nondiverse s in the state court action. need good reasons]. §1446: File notice of removal in state’s district court. π can object to removal >> case can get REMANDED to state court. and diversity. the case can be removed if it meets the other requirements for removal! 2. So  removed to federal court. §1446 c. Claim/issue preclusion came before the rule book so “must” is taken care of by common law. We look at the well-plead complaint for removal. There is no constitutional issue here. Summary of the process: a. notes 1 & 2 for hypos. a. Diversity must exist in the STATE court case both when the case was filed and at the time of removal. For removal purposes. Therefore. removal is impossible. collateral estoppel or estoppel by verdict b. Majority rule. pursuant to Rule 11 [sanctions. so now there’s only one .k.  this decision is NOT appealable. Efficiency ii. §1447 ii. b.a res judicata or estoppel by judgment b. any judgment rendered by the district court is valid provided that diversity DID exist at the time the judgment was rendered. ii. If a case could have been brought into FEDERAL court. c. Court dismissed the case because there was never SMJ! π improperly evoked diversity jurisdiction. If in a case in which the parties are not diverse is improperly removed but the district court fails to remand. but s have power to second guess πs who choose a state court that could have been brought in a federal court. Policy reasons: i. even if the requirements of §1441 are satisfied . i. For Claim Preclusion to exist the following 4 thing MUST have happened: 1. Two exceptions: 1. Claim preclusion a. The case must be removed as a whole 5. Then later another  joins – π settles with the first . or could and should have been raised.a. Claim/cause of action is the same in 1st and 2nd suit a. Lewis (Supreme Court. i. Removal occurs from state court to federal court by the  when the federal court has original jurisdiction of the claim. 4.e. A. and π didn’t bring it there. §1445: Forbids removal in certain categories of cases. if a π adds another nondiverse party after the complaint was filed but before removal. just a statutory problem >> the Constitution does not require complete diversity.

Kohlers said that damage to personal property is not the same as damage to self but the court overrules that and says that here. BUT. Wife sued for personal injuries. ii. First suit sues city for negligence for bike repairs. Rush v. 2. Note: π might argue that this isn’t fair as she didn’t get her day in court for her personal injuries. husband sued a derivative suit for loss of consortium >> husband got nothing but wife recovered. preponderance of the evidence). BUT. c. This may be important in the issue preclusion analysis because in suit 1. the  is trying to say that the husband was contributorily negligent. Court used narrow test >> evidence in suit one is that his loss of consortium derived from wife’s injuries. Rush (see above). the  will try to get issue preclusion. Parties are the same a.) c. Frier v. it would carry over to civil court because there it was a lower burden.B’s negligence = no issue preclusion b/c his negligence wasn’t . Note though that the broad test probably would have precluded the claim because the accident is the same transaction. Then. Gargallo v. EXCEPT: i. then its judgment is on the merits.i. If OJ was guilty in criminal court. Final judgment a. d. ML is the ! c. maybe husband got nothing because he was contributorily negligent! If so. sued in state court. injured. Then in a second suit sues for personal injuries. Why is there such a high standard for this requirement? 1. Decision on issue is necessary to judgment i. here. so there is NO issue preclusion! We don’t know if the issue was actually litigated or determined! This is what this requirement means! i. it could also be because loss of consortium wasn’t really here! Regarding these two “options”. husband sued RR for his own injuries. the π.A loses b/c in this state contributory negligence is a the case 18 . only a single of cause of action arises. On the merits a. hits pothole and is injured. Here.) 1. JUDICIAL EFFICIENCY? iii. Illinois Central Gulf Railroad v. look at the underlying law the court is applying [substantive law]. iii. Failure to join under Rule 19 1. Example: OJ Simpson case >> civil suit was NOT precluded by criminal suit. wants the cars back. so no claim preclusion). Merrill Lynch (See above). First suit in state court. Issue here arises when two different standards arise. the applicable law leads to claim preclusion!! Follows broad test ii. Parks (see above). Same as claim preclusion 4. When is an ISSUE precluded? 1. Why? Burden of proof is MUCH higher in criminal court (beyond a reasonable doubt vs. ML sued Gargallo in state court – Gargallo filed counterclaim alleging that ML violated federal laws. Issue is actually litigated and determined a. it’s not. the court says that we don’t know which is true. For example: 1st Suit 2nd Suit A sues B B sues A . Gargallo then brings the claim to federal court >> to preclude the claim. 1. City of Vandalia (π illegally parked. Restatement standard § 24 (page 674): i. alleging violation of DP. 4. got car towed. Sued city for replevin. If suit is dismissed because of lack of jurisdiction. Gargallo is π and ML is  -. Default judgment >> NOT actually litigated or determined because the merits are NOT judged upon yet. π should have brought her personal injury claims in the first suit.and in the federal court when Gargallo files suit. Said that where a person suffers both personal injuries and property damage as a result of the same wrongful act. Merrill Lynch (Gargallo owed Merrill $. Do the facts create convenient trial unit iii. City of Maple Heights (π on motorcycle. 3. he is π and ML is . Parks (πs collide with train. so there are the same parties!) ii. 2nd suit is in federal court – so which common law do we apply? State law >> we look to the law the first suit was brought! If the original case is brought under diversity in federal court. Final judgment a. which here was state court – that state says that there is no claim preclusion – it was NOT decided on the merits!) i. If a cannot be brought in the first place. ISSUE preclusion i. no preclusion even if the elements are met 2. Gargallo v. Then π filed in federal court. Factors related in time/space/origin/motivation ii. could have removed the counterclaim! In the counterclaim. Settlement is considered a FINAL JUDGMENT! b. Due Process! We don’t know if π had full and fair opportunity to be heard! b. Evidenc e in suit 2 is that he had a personal injury. RULE 60(b)(5): If court makes mistake saying its precluded.) 1. you did have a chance in the first suit you brought for property damage – it’s all about judicial efficiency >> THEME? GETTING THE TRUTH v. Note: ML. court says no.Jury finds A’s negligence was > 0 . Vasu v. Issue in both cases was ’s negligence. Improper venue. then the issue is precluded.Jury finds B’s negligence was > 0 necessary to decide the case b/c it was A’s negligence that decided . i. BUT. Gargallo doesn’t comply with ML’s discovery requests – court ordered him to but he still doesn’t – so court dismisses the counterclaim with prejudice. NO claim preclusion because its NOT an adjudication on the merits! b. RULE 41(b): Anything operates as an adjudication on the merits. Because there was no claim preclusion. we’re supposed to look at the law of the first court. Appeal – In most states appeals are considered final judgments unless the appeal vacates the 1st decision. Whether treatment as a unit conforms to the parties’ expectations/business understands or usage. Lack of jurisdiction [SMJ and personal jurisdiction]. in second suit. Illinois Central Gulf Railroad v. gets money. In the counterclaim that Gargallo filed in the STATE court. b. State court ruled for . Claim is precluded here. Most courts: If judgment is based on breaching the court’s order. 3. Same issue in case 1 as in case 2 a.

not common law. recall that a state cannot refuse to enforce another state’s judgment because it disagrees with the underlying claim. You should discuss full faith and credit in your answer whenever the two courts are in different jurisdictions. c. SEC wins in lower court. . o When dealing with counterclaims. analyze both. Party has incentive to wait – not join the action – just wait for suit c. Tonpkins (1938) reversed Swift and said that Federal courts sitting in diversity must use state statutes and state common law. o Consider claim preclusion first Claim preclusion: Do not forget that states apply different tests to determine if two claims are sufficiently related to qualify for claim repclusion. π will say it is not the same parties so no issue preclusion.What did Swift actually do? Encourage forum shopping and caused huge inconsistencies in rulings. Hanna v. Introduction i. i.complete bar to recovery.    .A’s negligence = yes issue preclusion b/c his negligence was necessary to decide the 1st case. York (1945) applied the “outcome-determinative test” to decide procedure v.) Note though. the π wins – the 26th π can use offensive preclusion and win >> not fair to πs 1 through 24. Rules of Decision Act (USC 28 §1652) applies to statutes and common law. Defensive issue preclusion: A sues B. d. ii. judge or jury? Outcome-determinative doesn’t help so we need a new test: Is the state created rule “bound -up” (does it affect either parties rights) with the state created right and obligations? If its not then we look at the countervailing federal rule and use whichever grants more rights. include this discussion.What was Swift trying to do? Prevent forum shopping and avoid inconsistencies by making “great” law . Court said that this π could have joined in the first action. that πs could not have joined in first suit because it was SEC action. Rule 13 trumps. Byrd v. . o Even if the facts cry out for a different result. Court looks at Rules Enabling Act (28 USC §2072) and says we need a new test: Use federal procedure in federal court unless it violates 28 USC §2072(b) b. Though the issue is outcome-determinative the court looked back to the purposes behind Erie: preventing forum shopping and inequitable administration of laws. 1.Exam Tips You should consider claim and issue preclusion whenever you are presented with an exam question setting forth two separate suits Claim and issue preclusion are related concepts – unless a problem makes it clear that you are to consider only one.But what about statutes of limitations? Or whether a definition material to the case should be made by judge or jury? Are those procedural or substantive? Guaranty Trust Co. C trying to use B’s drunkenness to win. ii. If party had incentive to litigate. Blue Ridge (1958) brought up the question of who decides if Byrd was a “statutory” employee. If the outcome would change if Federal law was used over state law then its substantive (and vice-versa). 1. you were contributorily negligent. and π had every incentive to litigate. Increases litigation b. The whole idea behind Erie is which law to apply in FEDERAL COURT [on a DIVERSITY state claim] 19 . Plumer (1965) A federal court sitting in diversity was unsure whether to use state (personal service) or FRCP (left w/ adult) rules of service. thus when no state statute exists judge should apply the “best law” (judges choice) . Parklane Hosiery v. Erie RR v. York said if its outcome-determinative use state law. and on the 25 th π. recall that in most cases you will apply Rule 13 rather than the more complicated common law compulsory counterclaim rule. Issue pre cluded here. Neither can be used against a winning party. i. 3rd party just waits for the suit 2.What is the difference between procedural & substantive law? Remember the paper color hypo? That’s it! . Although it may be obvious that the second court has to enforce the first judgment. What We Really Need to Know: i. B was drunk. C says issue preclusion. Unfair.   VIII. When in Federal Court sitting in diversity the court applies state substantive law and federal procedural law Case History: Swift v. 5. Should there be the same parties/do the parties have to be the same? a. Examples of when it is unfair: 1. When dealing with issue preclusion. As long as there was an answer filed in the first case. Erie Doctrine a. A wins. Second. Shareholders then sue >> suit 2. Parties do NOT have to stay the same for issue preclusion as long as it is not unfair. New rule: A non-party (to the 1st case) can assert issue preclusion (both offensive and defensive) against the losing party. substance. Offensive issue preclusion: C sues B. Examples of where 3rd party enters and same party requirement is NOT needed to preclude the issue. Why wouldn’t we want to allow offensive issue preclusion? a. Tyson (1841) said that when in federal court based on diversity the judge need only listen to state statutes under 28 USC §1652. first identify all the issues that could logically arise in each of the two cases. Shore (π alleges  sent false proxy statements to shareholders >> federal question because its dealing with SEC. because what if all parties keep suing one by one and they lose. identify which issues are relevant to both cases. v. Old rule: 3rd parties could not assert issue preclusion b. Then B sues C.

so then we look to state law [we want to use state law]. There is no federal common law! d. Forum shopping >> Brown & Yellow Taxi Cab >>  reincorporated in TN to create diversity.Exam Tips Spotting an Erie issue: o Erie is an issue only in federal court. take a second look at the state and federal rules on the subject.  However. in federal court because of diversity. Federal question cases will just apply federal law. v. SOL expires under the state. So the question is whether judge/jury is outcome determinative. York (π sued a bond trustee in federal diversity action. i. Tompkins (π hit by train. but federal SOL says its okay. alleging misrepresentation and breach of trust. It has to be determined whether or not he’s a statutory employee – if he is. procedure b. says that this is a “new test”). there is no conflict. c. b. Rules of Decision Act >> Now §1652 a. page 89. This is outcome determinative! Court says we are trying to protect from forum shopping. Is state law bound up with rights and interests of the parties? 3. Hanna v.) The Court says it’s not procedural v. What laws must the FEDERAL court apply when ruling in a DIVERSITY case? i. In Swift v. it is. But. Guaranty Trust Co. so the judge just did want he wanted to – researched al the laws to figure out what the best law is. Tyson. ii. The court stated that “laws of the several states” as used in the act meant “statute” >> if there is a state statute on the point. so follow fed >> emphasis again on substantive v. specifies what the state law rule is on a particular matter. unless the case falls squarely within one of the Court’s earlier decisions or the lack of any conflict is absolutely clear. Erie Railraod v. but for some reason. o If a problem gives you a state law but there is no corresponding federal rule that you can think of. Also. you need personal service. look to see if it is OUTCOME DETERMINATIVE. State says that judge determines if π is statutory.) If the state law is bound up with the rights of the parties. it’s not really unfair >> so the two concerns of Erie aren’t really at play here. there is still an Erie problem. be very hesitant before basing your entire answer on a finding of “no conflict. NY law applies here – its in federal court. (a) Supreme Court has power to prescribe rules of practice and procedure. Court says to use federal law here. ii. then the federal court must follow it. States weren’t influenced by the federal law. Byrd analysis: 1. We must apply STATE common law! 1. Non-uniformity – no uniformity in what was going on d. o One clue for spotting an Erie issue is when the question involves a suit in federal court. get in federal court to evoke federal general law because the state’s law was unfavorable >> example of forum shopping c. Rule 4 said you can leave service with someone who is of suitable age. (b) But they can’t interfere with state substantive rights. Make sure the rules actually conflict. Blue Ridge Rural Electric Cooperative (construction worker was hurt on job. Byrd v.  . the SOL/service is NOT substantive. but look to see if it is outcome determinative! Here. so use federal SOL! b. a. Instead of procedural v. Is it outcome determinative? 2. But we have a countervailing federal interest to hold the trial by jury >> protect 7th Amendment. sued in federal court because of diversity. Unconstitutional – Congress does not have constitutional power to declare SUBSTANTIVE law in the states 2. We don’t know. so Swift’s idea of a federal general law was NOT working. o Erie issues can pop up anywhere – what may look like a regularly straightforward question of pleading or discovery may actually have an Erie issue lurking in the background. determine whether the rule fits within the powers Congress gave to the Supreme Court under the REA  Make sure the rule conflicts  In determining whether the rule can be reasonably characterized as procedural. a. Enabling Act >> §2072 i. o If the application of a state/federal rule does NOT make a difference. state law says no. Beware of the “false conflict”: o Once you have found an Erie issue. Plumer (Personal injuries case. A federal court should be allowed to set its own PROCEDURAL rules [but NOT substantive] ii. here there was no such statute. What if state and federal RULES conflict? Do you use state or federal PROCEDURAL rules? i. there was a case in federal court based on diversity. substantive. ask 20   . What if they have different statute of limitations? Is SOL procedural or substantive? 1. A federal court must apply state law only when failure to do so would likely result in forum-shopping between state and federal courts because of the likelihood of a different outcome (Emanuel. issue of which law to use >> sued in SDNY. The Judge said that the court did not have to apply the state law. Here. then use state law! Here. the real issue is whether the federal court must apply the state law. but federal law says the jury does. but there isn’t forum shopping here – no one is going to forum shop proper service. but it happened in PA. and an Erie analysis is technically unnecessary. it wasn’t.” Federal rules crafted under the Rules Enabling Act [“REA”]: o If the case involves a FRCP or other rule enacted under the REA.1. The state SOL says its too late. all he can get is worker’s compensation.) Overrules Swift! Said Swift presented several issues: a. In this case. substantive.) Court says use federal law. 1. Countervailing federal interests? 2.

Time of alleged fraud b. Before. the federal rule is invalid. RULE 9: Imposes a higher standard of “short and plain statement” for certain issues: i. 2009) [TWEN case] (Iqbal imprisoned. issue is if there is a claim on which relief can be granted. Haddle v. How much we need to put into the complaint? i. BUT.”) d. need to specify: a. Bell Atlantic v. Supreme Court says that even if π is at will employee.e. 1938 – the Rules were promulgated.. Intentional misrepresentation b. sues Attorney General. Written by π. you need 3 elements: a. How do we begin a suit? 1. Jurisdictional statement is ¶5 b. not breach of contract and something else. 4. Heightened pleading standards >> πs need to plead enough facts to state a claim to relief that is PLAUSIBLE on its face [not just “conceivable”] i. so thus it is the policy. i. States use FACT PLEADING. Conley standard may allow these allegations – but discovery needs to be next. IX. Rule 12(b)(6) motion >> attacks sufficiency of complaint – claims that you have no short and plain statement – even if everything π claimed was true. Purpose of litigation – find out the truth v. could only prove breach of contract. a counterclaim is the same as a complaint! b. Rule 10(b) allows you to “incorporate” paragraphs b. Conley v. no relief granted at law. Changed to code pleading – but you couldn’t plead an alternative! [i. a. How a lawsuit should be managed – the judge or the parties? 3. Pleading a. The question then is how much do we put into the complaint? iv. Introduction i. Gibson (said it cannot appear beyond doubt no set of facts to prove relief.22. 1. Garrison (Supreme Court) (π. And the grounds on which it rests. it was a common law writ >> very formalistic b. Jurisdictional statement 2. Short and plain statement of claim is ¶17 c. Fraud and mistake 1. BUT. Federal government uses NOTICE PLEADING. It starts with a DISPUTE 2. NOTICE PLEADING: [how much detail you need to provide] i. or makes it significantly easier for one party to win. Iqbal (Supreme Court. Conley’s NOTICE requirement survives! a. See page 340 for examples of each element: a. The COMPLAINT memorializes the complaint 1. 2. 3. It’s not enough here! He could have had other evidence like email/documentation. something more than “This happened to me. a post-9/11 detainee. To establish fraud. it could have been possible that they didn’t compete because it could have been in their best interest not to. There are 3 themes at odds in the “nuts and bolts” portion of civil procedure: 1. Speed v. He points to the fact that he was punched/kicked by guards.  claiming that short and plain statement requirement is not satisfied – you haven’t stated a claim because at will employee doesn’t have the same rights as regular employee – a 12(b)(6) motion. Reliance on misrepresentation c. π sues employer. Complicated discovery will render the court system inefficient – this will hurt those with legitimate claims! So court retires the Conley standard!! New standard >> πs need to plead enough facts to state a claim to relief that is PLAUSIBLE on its face! π does NOT meet this here. Fair notice of the claim and what it is ii. When pleading fraud. π infers that the companies agreed not to compete because they did not compete. Josh Ashcroft. so claim is dismissed). now we have RULE PLEADING! iii. Short and plain statement of claim a. 2007) (π sued  alleging anti-trust laws. etc. he can be injured. Then consider the impact of the rule – if it changes legal parameters of the claim or defense. and I’m Arab.] c.23 c. Place of alleged fraud 21 . dispute settlement. RULE 8(a): Tells us what must be in the complaint – 3 elements: 1. given to  and the court – anyone who wants to see it can access it. Twombly (Supreme Court. ii.) ii. Get dispute in writing. Relief sought is ¶21. Note: Twombly is limited to anti-trust cases. π claims that the policy of targeting Arab men is violation of the 1 st and 5th Amendments. 2. Injury 2. which here will be complicated and expensive. but Iqbal (see below) expands it! iii. an at will employee. employer fired him to prevent testifying against them. Is abused. For pleading purposes. bear facts are NOT enough now under Twombly. which will require much more. and FBI Director. it’s sufficient for Rule 8(a)) 1. Quality 2. yourself whether the rule is concerned with what goes on during the litigation or what when on outside the litigation. s argue that Conley is too loose – complaint will always go through unless factually impossible.

) 3. So even if Rule 11 doesn’t apply. Attorney sanctioned – appeals. CLEs. not π.) a. Law firm i. Parties i. The purpose of Rule 11 is to act as a deterrent. Block (Supreme Court. Relief sought. If you give money to the other side. Damaging to reputation.. So it violates 11(b)(2). WHO can be sanctioned? 1. then that attorney may be personally liable. So it does NOT meet the requirements of Rule 9(b)!) d.  has burden of proving affirmative defenses 1. there was no issue c. Conditions precedent iii.  responds by stating that §1927 applies – if attorney causes excessive costs. a. here. (π dentist sues insurance company – he doesn’t pay the payments but soon after its reinstated he claims flood/water damage and recovered $100K. Mattel (see above) e. it would have been easy to determine no copyright infringement. When a court says there has been questionable conduct. there is an issue of complete diversity [ Strawbridge]. Wright v.) d.c.000 in damages. Includes non-monetary directives [i. a letter of apology. Wilson. There is no claim in the complaint that states that Strawbridge should be overruled. WHAT can be sanctioned? 1. notes case] There is a SAFE HARBOR PROVISION >> 21 days to fix the bad thing you messed up. Summary judgment: Involves the facts – given the evidence outside the suit itself. not the client’s.  counterclaims alleging fraud. then that attorney may be personally liable. 2. two questions arise: a. but he later says that the sanction was too much. Lawyer pays the attorneys fees because its his fault. but π doesn’t listen – throws the dolls. WHO gets it? ii. π violated Rule 11(b)(3) – no evidentiary support. Rule 8(c): Has a NON-EXHAUSTIVE list of affirmative defenses that must be pleaded in response. Mattel (see above) v. §1927 will >> Court of Appeals remands back to District Court to speifcy what the $ sanctions are for. Court says it is NOT an abuse of discretion because it deters . There was some potential dispute there. RULE 11 – Sanctions 1. (π sues in FEDERAL court – a civil rights violation. Acted on reliance because it paid out on π’s claim. Time and Place vi. Official document or act iv. But on ’s actual doll it has a copyright date that precedes π’s doll. Judgment v. Stradford v. Christian v. ii. or that it happened outside of policy date/terms. Zurich Insurance Co. Why would there me more specificity required for fraud? [Policy] i.. The court said that the fraud counterclaim was insufficient because it failed to specify the content of the allegedly fraudulent statement. here there is no dispute about diversity jurisdiction. iv. 2007). Northwest Corp. there is no relief at law. Who has the burden of which elements? i. t hat it was exaggerated. Elser. Admiralty or Maritime claim 3. that flood was a lie. sues  for copyright infringement. Fraud comes with an entitlement of punitive damages. Christian v. Christian v. You give the COURT money because: i. the time/nature of fraud was missing! i. What are the ethical limitations of pleading? i. Issue is WHO has to show the court that the prisoner π exhausted administrative remedies – court says it is an AFFIRMATIVE defense so  has to bring it up. then he revised claim and said there was $1M damages. ’s contact tells π. Court wants it ii. (π alleging breach of fiduciary duty – in the jurisdictional statement π claims it can be heard in federal district court because of diversity. Jones v. Edelman & Dicker [Page 381. §1927 >> if attorney causes excessive costs. ii. Note: Why doesn’t Haddle violate Rule 11? He’s questioning the law itself. Walker v. ii. so it’s far to penalize law firm for a lawyer’s poor work. b. insurance company says no so he sues. Rule 12(b)(6): If everything π claimed was true. There is a Prison Litigation Reform Act [PLRA] which says prisoners have to exhaust all prison remedies BEFORE bringing it into court.  tells π he should withdraw claim because of diversity issues – π ignores it .e. and states that the OTHER things he did were NOT sanctionable under Rule 11(d) – any bad behavior that occurred during discovery not sanctionable. Special Damages vii. moves to have case dismissed and for sanctions! Rule 11(b)(2) >> misrepresentation. Rule 11 only applies to PLEADINGS >> any bad behavior that occurred during discovery is NOT sanctionable 1. Rule 11(c)(4): a. 11(c)(5)(A): no monetary sanctions for a represented party violating 11(b)(2) – so couldn’t sanction π in Walker iii. Mattel (π created a cheerleading doll. WHAT is the sanction going to be? b. Injury was it suffered $150. public can see these court documents. c. community service] b. Moskowitz. 2. 1. Court says that there is strong evidence that the usual practice of Rule 8(c) should be followed. motions for Rule II will be incentivized. could be liable for $1M. RULE 11(c)(1): a. What is the difference between summary judgment and motion to dismiss [Rule 12(b)(6)]? 1. Attorney b. Nature of alleged fraud i.e. Pleading – The Answer >> Answer is the SECOND part of pleading! [first is the complaint] 22 . But. so copyright infringement claim makes no sense.

then it is ADMITTED! [Rule 8(b)(6)] i. but deny existence of a defect. π could have sued the right ! But. f. 1. owned. BUT. Leave to amend is denied only if the other party can shoe PREJUDICE by the amendment or the defect in the original pleading was the result of INEXCUSABLE NEGLECT OR CARELESSNESS on the part of the pleader. b. Some say its okay to amend. π sues his employer – complaint alleged that the forklift was operated. he finds out it’s not his. Zielinksi v. 2. Inc. When can you AMEND pleadings? 1. Rule 15(a): If the pleading is a complaint. 3 things you can do: i. INCLUDE AFFIRMATIVE DEFENSES a. so the money is coming from the same place – this may have been a factor in the court’s decision. and Rule 15(a)(1)(A) says it must amend before a responsive pleading. 3. 2. Cure a defect in the original b. Incorporate events after the pleading was filed. As a result. the party must amend BEFORE THE RESPONSIVE PLEADING IS SERVED. Answer ii. RESPOND TO FACTUAL ALLEGATIONS a. Note: There is a FAIRNESS v. Rule 8(c) 3. Complaint [and counterclaim] b. Undue prejudice on the non-moving party if we allow moving party to amend? i. 3/24 notes for answers. Had  said it didn’t operate forklift. π can’t amend the complaint and change s because barred by the statute of limitations. 2. i. (Negligence suit – Johnson hit π in forklift. c. Amending Pleadings [RULE 15] i. c. COUNTERCLAIM ii. When president of  looks at the slide. Different insurance companies look at the slide and say it’s ’s. King Version Pay Per View [Pages 397-98] (tried to say “neither admit nor deny. Even if you don’t give a proper answer. Introduction 1. [Rule 8(b)(5)] >> A factual thing you just don’t have the information for. We care about this distinguishing factor because the suit is based on the idea of vicarious liability – Johnson’s employer is liable. A party can amend its pleading ONCE without obtaining court permission provided that it is made within certain time limits.  owned forkligt but did not operate it – leased it out. some say it depends on if amendment will fix the issue. note 6 for hypos. For all other pleadings. d.” ii. 1. which is essentially an admittance!) a. Philadelphia Piers. 2.” b. and managed by . 4 factors to see if we should NOT allow the amendment: [Forman on page 405] a. Aquaslide N’Dive Corp. b. Beeck v. [“once a matter of course” in Rule 15] a. but will tell jury it did! Procedural issue! Court here is emphasizing procedural fairness over the truth i. PLEADINGS only include: a. You can ignore them – but make sure it is non-factual >> like the “short and plain statement. and π wants to amend. Zielinski (see above). it depends on the court. but  might not be employer! s did NOT specify which parts were true/false. Note: What if  moves for a 12(b)(6) motion? There’s no judgment yet. Rule 15(a)(1)(B): Can amend within 20 days after serving if responsive pleading is allowed…. some say no. a cross-claim. so now it says deny to making the slide. Rule 15(a)(2): The leave to amend “shall be freely given when justice so requires.” This = admission). See page 398. You can ignore jurisdictional statement. Three possible answers you can make: 1. π can amend! 12(b)(6) is a motion. Admit [Rule 8(b)] ii. Futility of amendment 23 . they’re “responsive pleading”] i. Don’t have enough knowledge/information to deny. s are estopped from denying it. So he wants to amend the answer and say it is not theirs. [Applies mostly to answers. Function of answers: 1. it’s admitted! 1. Deny [Rule 8(b)] iii. What about NON-FACTUAL allegations? i. Reflect new information acquired since the original c. sues manufacturer for product defect. EFFICIENCY issue here! Court knows  didn’t operate it. a. or a third-party complaint. it turns out that  and the “right”  had the same insurance company.i. If you don’t explicitly deny. BUT. This is where a lot of issues arise. Undue delay b. Bad faith c. it must get the court’s permission. Violated 8(b)(2) >> denials must fairly respond to the substance of the allegation! s here were responding to the FORM of violation >> also violated 8(b)(4) >> need to deny in part >> must admit which part is true/false. So ’s admit it is their waterslide. π doesn’t want him to because statute of limitations have run! Court allowed ’s motion to amend answer. Puts π on notice! a. A pleading can be changed to: a. But what if the court grants the 12(b)(6) motion? Can π amend? It depends on if it is dismissed with or without prejudice. the party must amend within 20 days AFTER the pleading is served. If it is dismissed with prejudice. If a party wants to amend AFTER the deadlines or to amend a SECOND time. an answer with a counterclaim . (π injured on waterslide.

(b) When it arose out of the same transaction/occurrence a. given automatically ii. There are TWO phases of discovery: i. iii. it’s futile because statute of limitations has already run. All of this activity falls under the umbrella of counseling. Any matter that is: 1. and special damages. it is okay if: 1. When do amendments relate back? a. [Rules of evidence govern what is and what is not admissible] 24 . Relevant to any party’s claim or defense a. then it puts  on notice of the 2nd claim! ii. iv. The purpose of discovery is to ensure that there are no surprises at trial. (c) If it is all the same conduct/transaction/occurrence and you want to change the name/naming of the parties. Recall that any monetary penalties for Rule 11 violations are paid to the court. This is enough in the initial stages. 2. Needs to be requested c. (ii) Knew/should have known that the action would have been brought but for the mistake  . INITIAL DISCLOSURE [RULE 26(a)(1)] 1. Discovery is expensive and time-consuming. trial. the new claims will NOT be barred by the statute of limitations. BUT. RULE 15(c): i. When dealing with Rule 11 sanctions. A party can amend its pleading during. injures himself during rehab. DISCOVERY [RULE 26] a.i. Bonerb v. The opposite happened in Bonerb. Argues that it would be prejudicial/unfair >> again we see the theme of justice v. A matter may be discoverable even if it is not admissible in trial. the statute of limitations for the negligence claim ran out. 3. see if the original claim puts  on notice. ends up disabled. Relation back is important when a party wants to add new claims after the statute of limitations has expired. the  argues he made a good faith mistake – he relied on 3 insurance companies that said the slide was his. If the original pleading was timely. π said  was reasonable. o Pleadings are the general documents that set out all the parties’ claims and most of their defenses. with the court’s permission . negligence is DURING the surgery. and 2. It is NOT the same transaction – informed consent is BEFORE the surgery. Introduction: i. It produces information about the merits of the lawsuit and allows parties to make informed judgments about the strength of their and their opponent’s position. What is discoverable? i. In notice pleading [Conley. iii. do not forget the 21-day safe-harbor provision. efficiency. Note: Here. mistake. (i) the party you want to bring in knows or should have known it is the proper party. see above in pleading]. Sues for info rmed consent – decides to amend complaint to add a negligence claim. and in the original complaint.Exam Tips Be sure to keep the difference between pleadings and motions distinct in your mind. so  probably thought π wouldn’t bring the more common 2nd claim. 2. Statutes of limitations issue – even if we allow amendment. 1. GENERAL DISCOVERY [RULE 26(b)] 1. so it might enable one of the parties to wear the other down. Rule 15(c)(1)(B) – court says that it is the same transaction. Note that there is an argument that these two cases’ decisions should be flipped – in Moore you could argue that both claims arise out of the same operation. Moore v. Required disclosure! Not requested. and the amended pleading adding the new claims relates back. o Motions are more specific requests to the court. all the details/information come out. [RULE 15(b)] iii. Richard J. in discovery. the party gave general notice of what the complaint is about. sues doctor. and in Bonerb the 1st case was about the basketball court. No relation back. When determining whether allowing the amendment is fair. honesty/resolution of the issue? iii. Caron Foundation (π is in rehab. Look out for questions involving the heightened pleading standards set out in Rule 9. π wants to amend and add “counseling malpractice” claim – but the statute of limitations for that has run. RULE 26(b)(1) ii. (a) When the statute of limitations itself allows relation back [it expressly permits it] ii. such as claims for fraud.) b. They typically deal with procedural requests. Discovery ends lawsuits for two reasons: 1. b. RELATION BACK OF AMENDMENTS [RULE 15(c)] 1. and the 2nd was about counseling. not to the other party. Most lawsuits end at the pretrial stage – between pleading and trial ii.) i. or even after. Note: Is the same transaction/occurrence requirement a theme? Why would we have it – maybe for efficiency? Is judicial efficiency an even greater theme in civil procedure? What about judicial efficiency vs. said  is negligent. Not privileged. Baker (π has surgery. during which the party may withdraw the offending presentation. If 1st complaint has a legal relation to the 2nd complaint.  was NOT on notice in Moore >> original complaint was more “exotic” than the 2nd.    X. or both sides to wear each other down. 2. BUT. iv. So we look at Rule 15 to see if it relates back – 15(c)(1)(B): Same conduct/occurrence. and 2.

Rule 33(a)(1): a. Need court’s permission if you are asking more than 25 questions. so can’t get around 25 question maximum. Contentions of fact are NOT the same as mental impressions. π says that (1) conduct is irrelevant because what’s being challenged here is ’s ability to fire based on STATUS. if others of the same race say there is a hostile working environment than π’s claim is more likely. What are the TYPES of discovery? i. What is deemed as “relevant to any party’s claim or defense”? [and thereby satisfying Rule 26(b)(1)] i. Cheney (π discharged from the navy because he was openly gay. It might look like interpretation of law/mental impressions 2. BUT. says that the navy’s policy of discharging people based on their sexual status was unconstitutional. Hypo: A & B get into a car accident. a. and π’s discovery requ est is narrowly tailored to race. It need not necessarily be evidence that the party uses at trial. π was denied the opportunity to take physical measurements to see if the airbag was the real issue [“crush” model]. and 4/5 notes for answers.]  arguing that it is not relevant >> it’s not π’s complaint. a. 4. sues  stating the airbag did not property deploy so he suffered aggravated injuries. 3. f. General Motors Corporation (π drunk driving. i. 2. Note: If you want to interrogate a non-party. [Note: What about metadata? See Aguilar v. then the party can be forced to do all the listed things. Only applies to parties! i. below. Why was it fair to dismiss the case? 1. Here we are asking for (1) interpretation of law. not conduct. did not give  chance to inspect the car and π did NOT preserve it. b. INTERROGATORIES [RULE 33] 1. Preserves court system’s integrity. [Definition provided by Emanuel on page 154] 1. issued by the court! a. 1. Extraordinary prejudice to  2. Note: π here might strategically want the evidence because it could create a buzz about ’s public image. 25 . and 4/5 notes for answers. “Sub-questions” [i. 1. π’s lawyer had 2 experts inspect it who said they should get  to look at it. Interrogatories will sometimes have document requests within them a. π has to answer “what rule did I violate. note 4. ii. s state that (1) they could have fired π for his conduct anyway and (2) π’s conduct will prove his status. Rules of discovery are greater than rules of evidence!! iii. For more hypos. and (2) π already admitted his status so we don’t need conduct to prove status. etc. He resigned because he was going to get fired. Rule 33(a)(2): Scope of interrogatories! 2. Does π have to answer? i. It could be used to demonstrate that ’s alleged basis for taking action against π was a mere pretext). If you can’t bring it to trial. Chavez [mentioned in Davis. Silvestri v.” (See Hickman v. i. and (2) contentions of fact! So must be answered! b. and π had head injury but  couldn’t determine if it resulted from the airbag or from the accident. In pending OR reasonably foreseeable litigation. e. The failure to preserve property for another’s use as evidence 3. π suing on negligence. It may lead to other evidence that is admissible! b. wants B’s bank account information to see if she has money. Precoat Metals (π suing for Title VII violation – discrimination based on race and national origin – created a hostile working environment. What if  serves a contention seeking interrogatory on π? [RULE 33(a)(2)] a. π did not allow  to inspect the car. BUT. notes 1 and 4 for hypos. Subpoena them under Rule 45(a)(1) >> commands a party to testify. See page 430.  asking what law did I violate and what about my driving was reckless in an interrogatory. got into accident. its someone else’s. d. Immigration & Customs Enforcement Division on page 88 of my notes. π files suit 3 years later. Davis v. 3. or 2. A sues for negligence. you can always: 1. Court says it is relevant – π is arguing that there is a hostile working environment because of race. ’s discovery request not granted). why can it be discoverable? a.e. Steffan v. Spoliation refers to: 1.” ii. so  dismisses the case). It was not fair. Information is relevant as long as it may help a party prepare for his case. Example: “Did you take X’s testimony?” “Produce copies of X’s testimony. not discussed in class]. so it was too broad and not granted. Sidari [mentioned in Davis. Not relev ant! Nothing to do with negligence. Example: π and  get into an accident. s wanted information from π as to whether or not he engaged in homosexual conduct. 4. πs want documents regarding others who have complained of race discrimination [not gender. Join them as parties 2.1. 1(a). it was too broad. 1(b)…] each count as one question. π must also answer what about the ’s driving was reckless. page 418]: π wanted information regarding employees at another plant – it was not granted. The destruction OR material alternation of evidence. see page 420. Spoliation i. Taylor. Sues. If it is ordered. for an example). an interrogatory is NOT objectionable merely because it is an opinion/contention that relates to the fact or interpretation of law! [RULE 33(a)(2)] a. a. page 418]: πs wanted information outside of race/national origin. Court here says that the duty to preserve material evidence arises not only during the litigation but also extends to that period before the litigation where a party reasonably should know that the evidence may be relevant to anticipated litigation. it is not relevant to the claim or defense! b.. and π may also want to create a buzz of an environment full of unhappy employees.

can and are usually introduced during trial. need court’s permission for more. Advantages: a.5. The other party then files a response within 30 days. or if the witness’ testimony opens up new avenues of inquiry. b. Exceptions [when you DON’T have to answer]: i. 3. they may review the transcript. The deponent is placed under oath. Disadvantages: a. To enforce a limitation ordered by the court iii. Not limited to 25 questions [like interrogatories] 9. then may sign a statement indicating the requested changes and reason for them.] and ALL tangible things a. 8. Who may be disposed? a. etc. 2. Rule 30(e): If the deponent or a party requests. No person may be deposed a second time without the permission of the court OR the other side [RULE 30(a)(2)(A)(i)] 4. or if applicable. Can request things “related” to the incident i. i. Other parties may cross-examine the deponent. A party initiates a deposition simply by giving reasonable notice to all other parties. Rule 30(d)(3): Allows a party to seek a PROTECTIVE ORDER when the deposition is conducted in bad faith or in a way that unreasonably annoys. g. They cannot last longer than 7 hours c. Do deponents HAVE to answer the questions? a. Makes it possible to force a party to submit to a physical or mental examination a. The deponent or any party may object to the content/form of a question. Production of all documents [including things like tapes. To present a motion under RULE 30(d)(3) >> that rule concerns the conduct of the deposition. To preserve a privilege ii. embarrasses. When is it available? a. indicating whether the inspection will be allowed. [RULE 30(b)(4)] b. 26 . If you object to a question to id after. i. Rules place limits on depositions [see above] iii. i. Experts can be deposed [see next section on expert witnesses] – RULE 26(b)(4) 3. Disadvantages: i. 6. iii. Rule 34(b)(2)(E)(i): Requires that “a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. a party seeking a physical and mental exam just show good cause and obtain a court order. Can’t ask follow-up questions for evasive answers. The party requesting the deposition then asks questions of the deponent. 4/5 notes for answers. The notice specifies the time and location of the deposition. iv. It may be conducted by “remote means. the total number of depositions taken by each side may NOT exceed 10 b. A party seeking inspection of tangible items under Rule 34 serves a request upon the party in possession or control of the argument i. What is the procedure of a deposition? a. any grounds for objection. b. How are they initiated? a. or oppresses the deponent or a party. the deposition is conducted before an officer of the court. It may seal them. and then sees its transcript and says it is irrelevant? a. f. he must make it available for inspection if it is in the possession of someone under that party’s control. May be used against nonparties [the person who answers the question is called the deponent] b. DEPOSITIONS [RULE 30] 1. as well as the name of the deponent. e. What is the procedure? a. Can only be used against parties – even if the party is not in actual possession of the item. i. What are the limits on depositions? a. See page 433. d. What if court allows deposition.” which includes telephone or video conference. b. Lawyer can ask a series of questions that forces witness to take a position on the matters at issue b. DOCUMENT DISCOVERY [RULE 34] 1. Can only be sent to a party [non-party witnesses can be deposed] ii. You can use Rule 45 and subpoena non-parties requiring them to produce and permit inspection of tangible items. note 1 for hypos. 7. The questions and answers are transcribed by a court reporter OR by electronic means. The request must describe the items to be inspected and specify a reasonable time and place for the inspection to occur. [see section on limits on discovery] h. Without seeking permission. If they want to make any changes. A deposition may be held anywhere.” 2. Can follow up with further questions if the witness is evasive. i. Usually answered by the lawyer so are well-crafted answers ii. Yes! You MUST answer [RULE 30(c)(2)] i. Unlike other discovery requests. An issue with Rule 34 arises when trying to figure out who bears the cost of discovery. MENTAL/PHYSICAL EXAMINATIONS [RULE 35] 1. c. although it is usually conducted in the offices of an attorney representing a party. 5. Very expensive b. Objections must be made concisely and in a nonargumentative and nonsuggestive manner. c. iv. Unless the parties stipulate otherwise [which they usually do]. Limited to 25 questions. Interrogatories are usually much cheaper a. A deposition is an oral examination of a witness under oath – recorded by court stenographers.

a party mat NOT engage in formal discovery until AFTER the discovery conference! [RULE 26(d)(1)] 2. b. is deemed to have admitted the matter requested. Deny the truth of the matter. When is a physical or mental exam available? a. Admit that the matter is true. they’d be asked for anyway. Procedure of Discovery i. a. Insurance information may not be necessarily relevant. i. can’t recover. 4. A party may also ask another party to confirm that a particular document is genuine. the timing and form of mandatory disclosures and discovery. What is the process? a. RESPONSE: The party served with the request may i. Discovery plan: Covers the subjects on which discovery is to be had. Admissions are NOT transferrable >> i. c. In writing c. IF the party can deny it in good faith. so they’re required bec ause they save time! 1. There is NO limit on the # of requests that may be served.k. unless it’s used for impeachment. (1)(A)(ii): A copy or description of documents that might have information. g. See page 433. Introduction: 1. THEME: Adversary system v. show that the party is lying] ii. (16)(b)(3): Basic gist of what schedule does – schedules everything up to trial. admission to a fact for one suit does not mean that the party automatically admits to the same fact in the 2nd suit [RULE 36(b)] i. If  does not have insurance. All of this stuff is basic stuff >> even if they weren’t required. court creates a schedule [“Do X by this date. You’re going to want to bring the good experts to trial. RULE 26(b)(4)] i. What is the SEQUENCE of discovery? Discovery typically begins shortly after the pleadings are filed and may continue until shortly before the trial. the parties are required to prepare a “discovery plan” for the case. (1)(A)(iv): Insurance information 1. Of limited use in most litigation. b. Request for admissions share 4 characteristics with interrogatories: a. including opinions of fact or the application of law to fact. If no settlement is reached. but it’s discoverable. Are EXPERT OPINIONS/TESTIMONIES discoverable? [RULE 26(a)(2). AND you can be sanctioned. ADMISSIONS [RULE 36] 1. Why? Why is this different from issue preclusion? The incentive for this is to minimize litigation – we are dis-incentivizing suit 2 by saying that the admission is NOT transferrable. State in detailed reasons why the party cannot truthfully admit or deny the request. ii. Must show good cause – movant must show that the information cannot be obtained by other means. b. 3. What information is REQUIRED to be disclosed? a. iii. even if they may be speaking the truth/have relevant information. A party may request anything within the scope of discovery.. and any orders that the court should issue to facilitate the discovery process. Object to the request. iii. It may be ordered only for a party or person in custody or under the legal control of a party. he must specify in detail which parts are admitted and which are denied. a. 2. A denial “just fairly respond to the substance of the matter” [ Rule 36(a)]. What if you SHOULD have disclosed the information but you don’t? 1. Relatively cheap d. ii. b. Usually occurs in a particular order [see the following bullet points for the order] 1. A party who disobeys a court order to submit to a mental/physical examination is subject to sanctions under Rule 37(b)(2)(B) v. iii. unless it is used to impeach [a. h. or who sets forth an ineffective denial. so people probably won’t bring suits. 3. DISCOVERY CONFERENCE: [RULE 26(f)] Requires the parties to meet “as soon as practicable” to discuss the claims and defenses that have been filed and whether there is any possibility of settlement. (1)(A)(iii): Computation of damages – how you reached figure of the amount of damages sought. Gets things parties mutually admit to out on the table to save time. Testifying experts v. Consulting experts (non-testifying) 2. truth-seeking system! 27 . Rule 37(c)(1): The information becomes NON-USABLE. Why have admissions? a. and not the bad ones – you won’t want to give the bad experts to the other side because they’d benefit from it. iv. If a party intends to deny only part of a statement. Usable only against parties b.e. a. Rule 26(a)(1)(A): Lists thing that the parties automatically have to disclose [ initial disclosure] i.2. Unless the parties agree or a court orders otherwise. 1.a. Theme: Efficiency. d. We see the theme of efficiency over truth here! v. Y by this date…”]. This is the same standard that applies to the answer to a complaint. a. i. vi. SCHEDULING: [RULE 16(b)] The court comes in after parties come up with the plan. Efficiency! Discourages fruitless litigation. note 1 for hypos. A party who does not deny a request to admit. or iv. (1)(A)(i): Name and contact information of person likely to have discoverable information. 4/5 notes for answers. A party seeks an admission by serving a request on the other party. and issue preclusion has final adjudication. Why? a. any agreement that the parties may reach that either limits discovery or relaxes limits prescribed by the rules. What may be requested? a. They submit it to the court. 2.

Written report includes: [RULE 23(a)(2)(B)(i)-(vi)] 1. how many times has he been in trials. BUT. is fired – π was emotional mess. they are NOT objective. put less time pressure on the expert. 3.  can’t get the information any other way – π could get evaluated. Pay the expert for their time b. 3. FACT witnesses vs. the ones that were shipped showed up in bad condition. Pay opposing party a portion of the expert fees i. etc. Fact witness: Someone who just happened to be there [for example. At least 90 days before trial [RULE 26(a)(2)(C)] i.) ii. If you depose the other side’s testifying expert.  couldn’t have accessed that information because its privileged. court says  can get some FACTUAL things from the expert’s report. iii. 2. RULE 26(a)(2)(A): Any expert you are going to use at trial. you MUST disclose: i. you must: [RULE 26(b)(4)(C)] 1. give him time. No discovery granted because no exceptional circumstances -.e. Why so much time? 1. M/V Bolero Reefer ( supposed to ship π’s bananas.] ii. 1. RULE 26(b)(4)(B): A party may discover facts/opinions of an expert who has been retained by ANOTHER party only if: a. 5. Becomes a question of credentials and who has better ones [i. 43. including a list of all publications authored in the previous ten years. Expert comes to survey the vessel. You’re pretty much saying that their mandatory written report was not enough. a party can only if: [RULE 26(b)(4)(B)(i) & (ii)] i. (ii) The data or other information considered by the witness in forming them.ii. Experts might also be biased because you pay them – thus by definition. a doctor who treated someone and testifies as to what happened at the hospital. RULE 26(a)(2): Mandatory disclosure! a. NO >> RULE 26(b)(4)(B) a. Their identities ii. Until π brings her mental state at issue and waves her doctor/patient privilege. a doctor who treated someone and testifies as to what happened at the hospital. because experts are being paid. Exceptional circumstances. a. viii. OR b. Chiquita International Ltd. BUT. BUT. 1. NOTHING >> Rule 26(a)(2) only applies to TESTIFYING experts. that this does NOT mean that anything written by a fact witness is off limits – for instances if a doctor is a fact witness [see example above]. Fact witness: Someone who just happened to be there [for example. Example: “Cornering the market” – one side hiring all “bad” experts and so the other side can’t get them. On showing EXCEPTIONAL CIRCUMSTANCES under which it is impracticable for the party to obtain facts or opinions on the SAME SUBJECT BY OTHER MEANS i. iv. Along with required disclosures of Rule 26(a)(1). but expert is NOT testifying. So it becomes a war of the experts – which to believe? a. and 6. v. etc. hired therapist. An expert has other things to do. vi. You must get the written report FIRST. there is an “EXCEPTIONAL CIRCUMSTANCES” exception! 1. c. (iii) Any exhibits that will be used to summarize or support them. can’t otherwise get the information 1. (π didn’t give into employer’s sexual advances. 4. (iv) The witness’s qualifications. b. YES >> RULE 26(b)(4) a. When must you disclose this by? a.  could have sent their own expert at that time! This is UNLIKE Haskell because  wouldn’t be able to access π’s psychological health records). Expert witness: Retained in anticipation of litigation. (v) A list of all other cases in which. which are the required initial disclosures. 2. The Haskell Co. v. there would be an issue of bias so jury/judge may not believe him. court grants discovery because of exceptional circumstances. What must you disclose about an expert you are NOT introducing at trial? 1. could have sent his own expert.] 2. 3. EXPERT witnesses [RULE 26(a)(2)] i. Can you depose other side’s testifying expert? 1. the witness testified as an expert at trial or by deposition. If the witness is a fact witness then no. vii. BUT. Note though. RULE 26(a)(2)(B): You must also provide a WRITTEN REPORT. is he just a “serial” expert who makes money off doing this?] 28 . It’s okay in Rule 35(b) ii.000 boxes left on the wharf. we could use Rule 45 to subpoena the doctor to provide patie nt’s medical records. As provided by in Rule 35(b). What MUST you disclose about experts you are using at trial? 1. i. Thompson v. There is no rule that states that the party cannot act as an expert witness for himself.  wants expert’s deposition – but he is a nontestifying expert. Expert witness: Retained in anticipation of litigation. There may be an issue that the ship is in different shape now as it was at the time of the shipment – but. You don’t want to give your hand away too early 2. (vi) A statement of the compensation to be paid for the study and testimony in the case. Fact witnesses do NOT do any of this.  wants psychologist’s records. Expert: Someone with specialized knowledge in a particular subject area who gives an opinion based on facts presented to her or which she obtains by investigation. Sometimes you can be both a fact and expert witness a. but the issue is π’s state AT THAT TIME. (i) Complete statement of all opinions the witness will express and the basis and reasons for them. was hired by π.. during the previous four years. Can you depose the other side’s consulting [non-testifying] expert? 1. BUT. Sometimes you can be both a fact and expert witness b.

is at issue? 1. Kmart (see below). System metadata – reflects information created by the use or by the organization’s informatio n management system. they are not a part of her case – also because the 4 women engaged in voluntary sexual relations. iii. or undue burden or expense. BUT. numbers. Also. embarrassment. π wants to depose 4 non-party female employees at the office. Substantive metadata – reflects modifications to a document. Is often crucial to understanding an electronic document. it is relevant if the authenticity of a document is questioned of ir establishing who received what information and when.  gets bad reputation. but that may not be enough to override privacy concerns. to the extent that it shows that he tried to solicit/encourage/etc a sexual relationship. Yes 1. Metadata is discoverable provided that it is relevant to the case. 1. or other information that is directly or indirectly inputted into a native file by a user and which is not typically visible to the user viewing the output display of the native file. including barring discovery concerning certain subjects.7 Step Analysis to Consider when Dealing with Experts 1.) a. Kmart is asking for the protective order even though π is seeking to depose non-party individuals. Is it relevant? Haskell: Yes Chiquita: Yes 4. Why would it allow a party to bring this if a non-party’s annoyance/embarrassment/etc. Court here uses Rule 26(c)(1)(D) and 26(c)(1)(F) ii. More efficient – A party already has a lawyer. Creates bad employee morale. RULE 26(c): Allows a court to enter a protective order limiting discovery when needed to protect a person or party from “annoyance. a. Subject? Haskell: Doctor’s files Chiquita: Expert’s report 3. ii. Example: Stalnaker v. embarrass. Kmart Corp. ii. [ RULE 26(c)(1)(D)] b. 26(c)(1): The means of getting a protective order ii. In some situations.” i. π claims it is relevant because it establishes context of hostile working environment. content. The court ultimately says that the 4 women’s relationship with the other employee is relevant. Disadvantages: Hard to redact. Unnecessary intrusions into private matters are common reasons for a protective order. Stalnaker v. 2. a court may limit discovery even of RELEVANT non-privileged information >> policy-based limitations. Discovery cannot annoy. so it is inconsistent with idea of hostile working environment. so it is more efficient to allow a party to do this. a. why would π want this? [aside from its relevance].created hostile environment. If so. Introduction 1. A protective order can forbid: 1. 2. Exceptional circumstances? Haskell: Yes Chiquita: No i.  argues that it is not relevant because the π is not complaining about the 4 women. data. discovery is many times sought from non-parties without lawyers. Plan to use at trial? Haskell: No Chiquita: No 6. but limits it – anything that does NOT have to deal with him is irrelevant. may lead others to bring suits. Discovery altogether [RULE 26(c)(1)(A)] 2. 1. Other means to get the information? Haskell: No Chiquita: Maybe [is the ship still in the same shape at the time of incident?] 7. RULE 26(c)(1): Allows “a party OR any person” to try to get a protective order! i. Note: Strategically.) i. 29 . or impose an undue burden or expense on a person/party 1. Aguilar v. Is E-DISCOVERY discoverable? i. Is the person an expert? Haskell: Yes Chiquita: Yes 5. Embedded metadata – consists of text. a party may seek a PROTECTIVE ORDER a. What does the party want? Haskell: π’s mental condition Chiquita: State of ship 2. oppression. In some situations What are the LIMITATIONS on discovery? i. Limits the deposition to sexual relations with the other employee. ii. Limit the timing or scope of discovery. 3 Types of Metadata: i. Advantages/Disadvantages: [as identified by the Sedona conference)/ 1. (π claiming sexual harassment by another employee. oppress. Advantages: Production in native form gives receiving party access to the same information and functionality available to the producing party and requires minimal processing time before production 2. so says the information cannot be disclosed to anyone else. it says it is potentially embarrassing.. is an employee of  . and requesting party mat not have the software necessary to open the document j. Issue because there is a privacy concern – it may be relevant. Most system metadata lacks evidentiary value because it is not relevant. Immigration & Customs Enforcement Division (Latino πs claim that  subjected them to unlawful searches of their homes in violation of the 4th amendment.

then doesn’t go]. X says I have XYZ” and then not allow opposing party to see information by saying it’s protected by the doctor/patient privilege. AND parties would be hesitant to interview witnesses who would hurt their case because then the opposing party would only benefit from it – you basically found favorable witnesses for them. i. . Also interviews other witnesses orally. BUT. it would be too much money. By encouraging each side to prepare its own case. Prevents one side from piggybacking on the work of another side. 1. Says that π could have the survivor testimonies if there’s a good reason why he can’t get them otherwise – like they are unavailable or it is too difficult to reach them. takes notes of these interviews . or can be obtained from some other source that is more convenient. THEME? Balance between getting the information/truth v. finding the truth! i. Unlike written statements. the rule helps to minimize the number of situations in which the attorney will be called as a witness. The Court has codified some of these principles in Hickman in the WORK PRODUCT RULE >> RULE 26(b)(3) i. privacy? iii. BUT. 2. Failure to participate in discovery plan b. RULE 26(b)(2)(C)(i)-(iii) a. But that is not the case here. b. if the court allowed it. Example: You can’t say “Dr. Failure to disclose required disclosures without being asked j. Taylor (Supreme Court. hires a lawyer – lawyer interviews 3 survivors. Note: If π’s argument were accepted. Says he does NOT have to disclose. lawyer ends up being a fact witness – relying on his remembrance/notes as to what is true). a. LIMITATIONS on discovery >> RULE 26 a. 2. (i) The discovery sought is unreasonably cumulative/duplicative. then the notes must be redacted. Hickman v. attorney/client is not applicable here because the lawyer interviewed witnesses/survivors. i. Aguilar (see above) (Sought meta-data after e-discovery. NO sanctions for failure to admit to a physical/mental examination. What does Rule 37 sanction? a. π attacks . Note: We see a theme here – court as an adversarial system v. A party/person can get a copy of his/her own statement! a. d. Rule 11 sanctions do NOT apply to discovery. Testimony by a party’s attorney is a particularly problematic issue in litigation. Rule 26(b)(3)(C): Party statements 1. Failure to respond to interrogatory f. Work Product Exception to Discovery: Covers documents and tangible things prepared in anticipation of litigation. Also. there may be other repercussions – for example. Rule 26(b)(3)(B): Opinion work product rule 1. the rule helps to ensure that the adversary system works as intended. these had the lawyer’s mental impressions. ii. Then. Main idea: The worse the behavior. attorney/client]. Failure to respond to document request g. ii. less expensive. a. and  complains of back injury but doesn’t allow π a physical examination – may imply that nothing is wrong with . ii. the worse the sanction. if you write notes on a transcript and the transcript is discoverable. Make a discovery request/response/object to discovery without a proper basis c.iii. As for the oral statements. motion to compel] i. Work-Product [RULE 26(b)(3)] 1. Failure to attend deposition by the responding party e.e. Purposes of the work product rule: i. iii. b. This is relevant info. k. decedent suing. [It’s only fair that you get a copy of your own signed statement] 2. Court MUST limit discovery if: i. Taylor (see above). SANCTIONS >> RULE 37 a. Hickman v. Failure to admit what is later proved. 1947)(crew member died on tow boat.e. How do we ensure compliance in discovery? 1. If you need to disclose facts under the fact work product rule. 1.] iii. In the case of work prepared by attorneys. π wants these written statements and lawyer’s notes of oral interviews. (ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action. court as a truth-seeking system. if the lawyer handed them over. Failure to answer question deposition/interrogatory/document request h. Privileged information is NOT discoverable. These items may only be obtained upon a showing of need. Failure to obey a court order [i. the court says that they are not discoverable under ordinary circumstances. Rule 26(b)(3)(A): Fact work product rule ii. has their written statements. mental impressions must be protected [i. but is it privileged? No – no special relationships. the discovery rules were simple and ordered that the lawyer disclose – he doesn’t and the Supreme Court gets around this by using policy. c. you waive the privilege! 1. undue harassment. the boat company. ’s attorney would not want to give π the information because why should he do all the π’s work? π would say that the point of system is to get the facts and truth out! It doesn’t matter who did what >> adversarial system v.) 30 . Ensuring COMPLIANCE with discovery i. Privileged information: Based on relationships between the parties – some relationships we may want to protect [like doctor/patient. Failure to attend a deposition by the requesting party [π requests deposition. a. there would be no incentives for parties to put in a lot of work. 3. Attorney’s own mental processes and notes are also privileged. (iii)The burden or expense of the proposed discovery outweighs its likely benefit… 1... i. or less burdensome. if you bring it into the suit.

couldn’t show up iii. But this does NOT equal an actual judgment. it is admitted.  is NOT getting his day in court! a. Motion (i. 3. Answer 2. 3. b. a. If a clerk can’t do it because one of the above requirements is NOT met. i. iv. 20 days.  can present evidence regarding the amount of damages. Clerk is NOT adjudicating. wouldn’t that almost be like a trial on the merits? c. A clerk can give a default judgment. The clerk then notes the entry of default on the docket. This is similar to Rule 8(b)(6) in the PLEADING stage >> if an allegation is NOT denied/properly answered.  has three options in response to π’s complaint: 1. AND i. (A) Conducting an accounting. DEFAULT JUDGMENTS >> RULE 55 (Before Trial. (3) Fraud. 3. v. Introduction i. 31 . The clerk MUST enter default judgment. b. ii. or b. BUT. Default judgment entered against  for not appearing a. 1. but ONLY when: [RULE 55(b)(1)] 1.e. If out of state.e. This one comes up most frequently b. Set aside an ENTRY OF DEFAULT for good cause. b. (C) Establishing the truth of any allegation by evidence. How might  do nothing and it might be a mistake or excusable neglect? i. 60 days if  waives services iii. Set aside a DEFAULT JUDGMENT under RULE 60(b) i. When a party against whom judgment for affirmative relief is sought has failed to: a. Only applies to cause of entry! b. we like default judgment because it is efficient and tells others to follow the rules or face the consequences.e. a. 2. Why this requirement? Don’t want to give the clerk any discretion regarding the sum because by defaulting the  is admitting the sum. a motion] i. RULE 55(c): The court can: a. then the court can do it >> RULE 55(b)(2) 1. After Discovery) i. (2) Newly discovered evidence that. (B) Determining the amount of damages. (D) Investigating any other manner.e. 4. a specific contract] or a sum that can be made certain by computation..  is essentially admitting to doing it – it has that effect! 2. If court doesn’t believe π – this is weird because if the same exact situation had happened but there was a sum certain.XI. Motions are NOT pleadings [see amending complaints!] 2. Plead. clerk can’t enter default judgment [i. If  has some informal contact with π. the clerk could enter a default judgment and not look into the truthfulness of π’s allegations.. Ignore/do nothing 3. b. If we only care about the process. What triggers a default judgment? >> RULE 55(a) 1. In default judgment. What is the difference between entry of default and a default judgment? i. The court can conduct a hearing or make referrals when: [RULE 55(b)(2)] a. π’s claim is for a SUM CERTAIN [i.” then does nothing]. misrepresentation. Otherwise defend [i. RULE 60(b): A court may relieve a party from a final judgment/order/proceeding for the following reasons: 1. In our system it is a BALANCE >> THEME! c. i. agent of service didn’t notify him ii. could  present evidence? If so. could not have been discovered in time to move for a new trial under Rule 59(b).  emails π saying “I intend to defend myself. If a default judgment is entered against a . surprise. Literally  must do nothing. or excusable neglect. or i. then we wouldn’t like default judgment because it is NOT based on the merits. My question: But what about the other hearings. a. (1) Mistake. Entry of default: Just says  didn’t do anything ii.. (4) The judgment is void. If we only care about the truth. RESOLUTION WITHOUT TRIAL a. with reasonable diligence. inadvertence. Improper service/notice 2. Default judgment: Can be enforced. π tells clerk by affidavit or otherwise [RULE 55(a)] 2. Default judgment is the same idea on a larger scale. motion to dismiss). What if  does nothing? Leads to default judgment! 1. a. or 2.  got really sick. vi. What if the 20 or 60 days pass? What does π do? 1. what can  do? 1. even if they seemed shady d.  is NOT a minor or incompetent.. or misconduct by an opposing party. When can π enter the default judgment? >> RULE 12(a)(1)(A)(i) & (ii) 1.

but the π is stuck with the involuntary dismissal. Theme: Courts balancing truth seeking in an adversary system v. Theme: Truth-seeking system! Also. 5. then it must be made no more than one year after the entry of the judgment. 2. but can sue the attorney for malpractice. like settled with π. so default judgment entered. 1.  states that the notice was not okay. Why do we need notice? 1. UNLESS the dismissal is for: a. BUT. You can have an involuntary dismissal within the statute of limitations -a.a. Example: SOL is 5 years. Floweres. didn’t respond in time ii. Or if it is for reasons (1). RULE 12(h): If you don’t include the affirmative defense in an answer OR file a motion. Peralta v. What triggers involuntary dismissal? [RULE 41(b)]: 1. 1988) (π. If the π fails to prosecute. Stale evidence b. could have done other things 2. didn’t prosecute in time. Why do we have SOL? a. 2. Involuntary dismissal: π is NOT prosecuting his/her action in a timely fashion. iii. 4. i. greatly prefer to see the parites engage on the merits of the dispute 1. What is the timeframe for a Rule 60(b) motion? [RULE 60(c)] 1. you need (1) a meritorious defense. π tries to argue that  does not have a meritorious defense anyway so there is no point of doing it all over again just to get the same result. Theme: Court efficiency? ii. Practical reasons -. Supreme Court reverses lower court’s decision. 3. INVOLUNTARY DISMISSAL [RULE 41(b)] i. Yes. see Jones v. Involuntary dismissal is analogous to statute of limitations a. a. above].k. Failure to join a party under Rule 19 iv. To comply with these rules or a court order. Is it a really big deal to π if  responds on the 91st day and not the 90th? Do we enter a default judgment against the  and not get the truth in the name of having parties stick to the rules? It is a balancing act! vii. c.5. RULE 60(b) is balancing: a. A  may move to dismiss the action or any claim against it.. Like default judgment. He could also have included the improper service as an affirmative defense in his answer [another option when responding to π’s complaint]. Is an involuntary dismissal an ADJUDICATION ON THE MERITS? [RULE 41(b)] 1. the π’s attorney may be at fault. π is stuck with the default judgment. π served after the 90 day required time frame imposed by state statute. (6) Any other reason that justifies relief. Thus a π who fails to defend a counterclaim can have a default entered against her on the counterclaim. or impleaded the employee whose debt he was guaranteeing.  argues he would have done other things if he got notice. ii. π is not lef t without recourse – can sue the attorney for malpractice. Default judgment: ’s delay. (5) The judgment has been satisfied. Does NOT only apply to s 1. a delay] triggers it! i. OR 2. d. while prepared to enter into default judgments. you waive the defenses listed in Rule 12(b)! iii. Introduction 1. released or discharged. What if the attorney messes up and causes the default judgment? 1. Involuntary dismissal: π’s delay.) i. Heights Medical Center (Supreme Court. sending a message to others that they must comply with the rules. and attaches the land –  gets notice of land seizing [you might NOT get notice of underlying suit but get notice of land seize. You have to timely bring the case [SOL] b. 2. To see if ’s delay was willfull b. or (3) above. The lower court agrees with π. Note:  could have made a Rule 12(b)(5) motion citing insufficient service of process [thereby exercising his option to file a motion in response to π’s complaint]. says we need notice. Hypo: What if state statute says that in order to set aside a default judgment. viii. People shouldn’t live in fear of being sued. 1. You have to timely prosecute [involuntary dismissal] 3.  does nothing after he gets notice. is the guarantor of ’s debt. or applying it prospectively is no longer equitable. or 6. (2). ii. π doesn’t do anything for 3 years. the lower court agrees with π here >> choosing efficiency! But the Supreme Court overrules it! Chooses due process/truth-seeking! iv. Lack of jurisdiction b. To see if  has a meritorious defense. Involuntary dismissal does to a π what a default judgment does to a  -. it is based on an earlier judgment that has been reversed or vacated. A failure to prosecute [a. Medical Center. No SOL on murder because it’s so heinous. Due process! Idealism of the system a. Improper venue c. Note: This case demonstrates that courts. sold his land for a better price. π tries to get it enforced. b. Does a  need to move for an involuntary dismissal? 32 . To see if π is prejudiced by ’s delay forces them to pursue the lawsuit to some resolution a. or (2) some practical advantage? It is likely that the court would still not like it because of notice/due process. Default judgment applies to all parties against whom a claim is filed. Within a reasonable time 2.

Why allow π to voluntarily dismiss once? i. A court can use broad discretion when allowing a voluntarily dismissal 1. the more likely it is that the court will issue an involuntary dismissal.1. RULE 41(a)(1)(B): A dismissal is without prejudice UNLESS the notice or stipulation provides otherwise. Who bears the COST if a case is voluntarily dismissed? 1. 2. π voluntarily dismisses and re-files in TX. If π can voluntarily dismiss once. Incorporation of dismissing with prejudice in the settlement agreement! This is an important bargaining tool for π a. Now π has changed his mind. i. so could fix this before getting sanctioned i. c. Pennzoil (notes case. it is an adjudication on the merits. 1. VOLUNTARY DISMISSAL [RULE 41(a)] f. If π voluntarily dismisses his case a second time. So. No bright line rule for how long π must NOT act for in order to have suit involuntarily dismissed. Theme: Efficiency v. why voluntarily dismiss? a. What if π wants to voluntarily dismiss to gather more evidence? a. Worried about sanctions i. How can π voluntarily dismiss? 1. the π can say “I’ll voluntarily dismiss this case with prejudice if XYZ. If you don’t want to do XYZ for me . No – Court can enter involuntary dismissal on its own! a. so should bear the co sts. Need more time to get evidence b. Except as provided in Rule 41(a)(1) [see above]. 4 basic types of settlement: Type of Settlement 1)  agrees not to file suit at all What happens if  files anyway  has a claim for a breach of settlement agreement or  could answer w/ “accord & satisfaction” 33 . j. thus should bear the cost. Why might π want to voluntary dismiss his own action? a. π can voluntarily dismiss his case only once a. e. Why allow the court to do so? i. Introduction 1. Example: Mattel – π’s attorney could have voluntarily dismissed within 20 days. Encourages settlement! 1. Texaco v. g. Depends on the circumstances b. a. Why would two parties agree to dismiss a case with prejudice? 1. Why? π initially chose the time and place of the suit and has caused  at least the expense of retaining a lawyer and answering the complaint. then I’ll dismiss the case without prejudice/won’t voluntarily dismiss it at all. Theme: Is the court given broad discretion to promote efficiency? ii. Without a court order/the court’s permission: [RULE 41(a)(1)(A)(i)-(ii)] a. FORM of a settlement agreement: 1. court denies it and uses language suggesting that π would lose on the merits. i. Theme? We also see this in venue/forum – the π’s choice of forum is preferred. 1. there was no cause of action since it was impossible that  infringed on π’s copyright – the attorney was sanctioned. (i) It does so before the opposing party serves either an answer or a motion for summary judgment. 2. Example: While settling. Note: Perhaps we can compare this to when the clerk can(not) enter a default judgment – court intervention is not always necessary/required. π got sick] iii. see page 97 of my notes) (π brings a case in DE against . Later wins in TX >> the “most expensive failure to answer. Usually results in a settlement agreement. Court has discretion! 2. a. can he file the same suit again? [RULE 41(a)(1)(B)] 1. h. Many courts require that π pays ’s attorney fees as a condition of granting π’s moti on to voluntarily dismiss the case a. Example: Mattel case – π’s attorney should have voluntarily dismissed the case.e. i. A court enters only if π does NOT voluntarily dismiss before  answers/moves for summary judgment OR parties don’t agree to do so. If you’re going to get sanctioned anyway. b.”] ii. If π voluntarily dismisses. then he doesn’t feel like he must litigate because he’ll never get to do it again if he voluntarily dismisses – so it may lead π to settle. π moves for preliminary injunction. The longer the π does nothing. SETTLEMENT i. Accommodate unforeseen circumstances [i. π can voluntarily dismiss WITHOUT a court order if: i.. By a court order [RULE 41(a)(2)] a. resource allocation [ theme!] v. an action may be dismissed at the π’s request ONLY by a court order. Safe harbor period: Party has 20 days to remedy objectionable behavior. provided that the statute of limitations doesn’t expire. Efficiency! It’s burdening the docket. death in the family. 2. What is the timeframe for an involuntary dismissal? 1. on terms that the court considers proper. May also relate to the issue of who bears the cost of a voluntary dismissal [see below] – π initially chose time and place of suit and now π has changed his mind. truth-seeking system. 2. It is unlikely that  will agree to a dismissal for such purposes. The first dismissal is without prejudice – π can refile it. Preserve idea of π’s autonomy 1. (ii) All parties agree to do so. or 1. before  responds. ii.

they settle out of court. Settlements are cheaper and faster than trials 2. Like settlement. At its maximum. No – in ordinary case the judge does not need to examine/approve the settlement. What do you do if you want to enforce the confidentiality? [RULE 26(c)(1)] [What happens if the enforcement of the contract conflicts with the discovery of another case?] i. Example: Ask π what she wants to know about it. Why are we doing all of this? Along with the SUBSTANCE of the settlement agreement.  &  together ask court for a judgment w/an order not to file The  has violated a court order and could be held in contempt or again (Consent decree) subject to other sanctions. So. Do parties need approval of their agreement? 1. iii. Settlements control risk a. If you were the employee. and would ensure that the employer complies with the order. They are significantly unpredictable ii. much less the terms of its compromise 2. 1.2)  files and then voluntarily dismisses w/prejudice 3)  files and then voluntarily dismisses w/o prejudice but agrees not to re-file during settlement Claim preclusion  has a claim for a breach of settlement agreement or  could answer w/ “accord & satisfaction”. we also need to consider the FORM of a settlement agreement! ii. Note: What parties mean by “confidentiality” differs from case to case.  argues that this discourages settlement iii. then stipulate to those facts. you would want Option #4 – the consent degree >> it would give π the most from the employer. RULE 26(c)(1) – move for a protective order to protect a party or person from: 1. Facts of the dispute b. wants information regarding the real facts of Thomas’ employment and settlement agreement information. Why settle? 1. so why not just let them be confidential? f. Why shouldn’t we enforce confidentiality agreements? i. 2. SUBSTANCE of a settlement agreement 1. Suit 2 – π here suing Caesars for sex discrimination. they are public. ii. They tend to be all-or-nothing. Example – Jane Smart v. Trial outcomes have 2 characteristics that make them risky: i. iv. ADR has both positive and negative public policy issues attached (the same as for settlement) 34 . Wrongdoer gets to hide behind confidentiality 1. i. so filing twice looks bad for the . but nothing about the settlement/litigation facts). Why should we enforce confidentiality agreements? i. If you were the employer. d. More commonly. CONFIDENTIALITY – what would you want to keep private? a. e. The employee would want a good recommendation included in the settlement agreement to ensure that she can find employment elsewhere. Public just doesn’t care about certain things. 2. Terms of the settlement i. Parties have great freedom to write their own procedural rules 3. Settle with π 2. Facts revealed during discovery c. and that a court must consider a protective order to weight that public interest. confidentiality agreements seek to bar specific information or documents from public exposure. a. But. it means that the parties want not even the fact of a dispute to become public. b. What could  do to avoid deposition/breaching the confidentiality agreement? 1. Embarrassment 3. Note: Why is Caesar doing it and not Thomas if we are trying to protect Thomas? Because the Rule says any “party or person” can do it. ALTERNATIVE DISPUTE RESOLUTION [ADR] 1. you would want Option #1 – nothing in the public records. Remember. certain states have statutes that say if the public has a right to information that deals with public health or safety issues. Some states have statutes that automatically say if there is such an issue.  moves for protective order – court says π here can get information regarding Thomas’ employment. Admit to some of the facts related to the settled case a. Truth in the system [respecting the confidentiality agreement] ii. Part of the settlement agreement was that Thomas would only discuss the duration of her employment and position at Caesars. Undue burden or expense a. k. 1. there is a downside because there is no guarantee that π would not file again – Option #1 has no res judicata/preclusion effect. Public has the interest of knowing the truth ii. Employee suing employer for employment discrimination and unlawful discharge. Kalinauskas v. Oppression 4. and the employer would want confidentiality and no further suits. Rely principally on contract 2. Wong (Suit 1 – Thomas sues Caesars for sex discrimination. Promotes settlement ii. Annoyance 2. Theme: Truth in this case [allowing the deposition] v. complaints are public. 2. Which form of settlement a party would want depends on the facts. wants to depose Thomas. GrowCo hypo on page 483-484 of text i. 4)  files.

View the facts in the light most favorable to the non-moving party.  has no proof that her husband wasn’t exposed to its asbestos. Some say that summary judgment may be unconstitutional because there is too much burden on π. π wants evidence of absence. ) i. Note: Celotex was in 1986 – Twombly was ruled since then.l. 2. Note: This is NOT a 12(b)(6) motion because of the conspiracy allegation was true. and inexpensive determination of every action and proceeding.  moves for summary judgment – says that (1) Bias was a drug user. Bias v. There is a potential conflict – just v. Moving party must specifically show where there is absence of evidence. How is this different from a motion to dismiss? [Rule 12(b)(6)] i. Thus.  also shows evidence of absence – shows that insurance company would not have insured Bias. Thus. 1. issues of credibility are not for summary judgment. and given these facts. You CANNOT change your claim to create your own genuine issue of material fact! a. i. Mattel case is a good example of that. Celotex v. but he didn’t. but it may not always be just because it is denying the non-moving party’s day in court! 1. he was a drug user. If the lower court denies summary judgment – it is abuse of discretion – the only way the court can reverse the lower court’s decision is by finding an abuse of discretion >> a more stringent standard – that’s because we’re okay with a court saying no to summary judgment c. ANY party can move for summary judgment 1. b. π would counter that she could come up with witness by the time of trial – also. But. are there any issues as to any material facts? 3. there would be a cause of action. Note: π tries to create an issue of material fact by stating that their son would not engage in drug use. π had no evidence that the cop was even in the restaurant. (Bias. 1986) (π sued alleging that her husband died after being exposed to ’s products containing asbestos. Sued for reliance. Catrett (U.) ii. BUT. What if the π moves for summary judgment? a. the unjustness of a grant of summary judgment is reviewed by the appellate court! a. Moving party has the burden of demonstrating the lack of evidence i. Example: π sues . must show that π can’t prove their claim! There is an absence of evidence of injury! a. speed/inexpensive/efficiency 2. BUT. so that tradition should continue. I suffered a $70K injury. b. one party wins! ii. How do you show that there is an ABSENCE OF EVIDENCE? a. Then later says. What is the STANDARD of summary judgment? 1. Example: π initially says I suffered a $40K injury. No genuine issue as to any material fact and all of the material facts are in agreement. Adickes v. The BURDEN SHIFTS >> π has to show absence of evidence! i. which heightened the burden on π from “conceivable” to “plausible” [see above]. there is no legal cause of action even if all the facts were true.S. No witnesses – so  argues that π cannot win at trial. The moving party is entitled to summary judgment as a matter of law a. all the material facts are non-disputed. summary judgment comes after discovery when the π has had a chance to gather evidence. (ie: ’s story v. 4. What about ISSUES OF CREDIBILITY? a. That there is an ABSENCE OF EVIDENCE -. court here says that π’s general evidence of “he is not a drug user” does not defeat ’s specific evidence of Bias’ drug use. Now. died of drug OD. ii. The court states that proving so is the ’s burden >> this is a very difficult standard.H. alleges that the restaurant that denied to serve her conspired with the police officer who was allegedly there at the time. Is there an issue of material fact as to whether π’s injury was $40K or $70K? No – this does not defeat summary judgment. SUMMARY JUDGMENT [RULE 56] (After Discovery) i. Theme: This balance of justness/truth-seeking with efficiency is encompassed in Rule 1 and the very definition and scope of the Federal Rules. ii. Usually decided by jury 35 . So the court holds for π because the  has NOT foreclosed the possibility of state action. Summary judgment is speedy.  wants absence of evidence. Remember. In a motion for summary judgment. The rules should be construed to ensure just. so summary judgment was rare). has shown that π has absence of evidence >> π has no proof that Bias could have been insured. BUT.) So. saying that  hasn’t shown that! Also. so  cannot foreclose the case. ii. π does not need to show a lot of evidence. Parents had asked the agent to get a $1M insurance policy. signed NBA contract. all that  has to say is that π cannot prove that it was our asbestos! Court remands the case to see if there is an absence of evidence and to rule under this new standard. speedy. Kress & Co (Supreme Court. so she cannot win at trial. In a motion to dismiss. and that (2) no insurance company would have insured him because he was a drug user. BUT. π says  has no evidence of preclusion. If the lower court grants summary judgment – it is de novo review – the higher court is NOT bound by the lower court’s decision.  has to show absence of evidence -. and insurance companies saying no insurance company would insure him because he is a drug user. Note: How could a  show evidence of absence? The Christian v. Under Adickes. I will have evidence. so there is evidence of an absence of injury. 1970) (π had to prove state action for discrimination case.  argues that π has no evidence. Advantage International. and would prove it by stating that looking at the documents there is no evidence that π was exposed to ’s products. d. Note: Court also seems to say that because Bias died of a drug overdose. no evidence of state action. What must the party MOVING for summary judgment show? 1. and thus there is no issue of credibility. The court does NOT use the Adickes standard – that is too burdensome.  says the suit is barred by claim preclusion. Inc.) i. “absence of evidence is not evidence of absence [which is harder to prove]” (Rumsfeld quote on Iraq. Bias (see above) 3. iii. coach also says he would not use drug use. Governed by RULE 56(c) 2. story of ’s 20 witnesses) i.  had testimonies of other teammates stating that he is a drug user. a. no injury.  moves for summary judgment – π has no evidence that her husband was exposed to ’s asbestos. RULE 1: Scope and purpose of the rules i. Celotex (see above) ii. S. π counters by stating maybe by the time trial comes around. during pleading.

are involuntary dismissals governed by Rule 41(b).e. 2. but MANY states have enacted similar provisions. Complete discovery 4. File motions. Involuntary dismissals: Students sometimes do not recognize the tremendously broad scope of the involuntary dismissal rule. Introduction i. the affidavit MUST be based on personal knowledge! a. Most dismissals that result from a motion. Rule 16 only applies to the federal courts. copies of relevant documents] 1.. 1. Courts have tried a number of approaches to reduce the time and cost of litigation. So you can’t say “someone told me that…” v. But within the earlier of 120 days after any  has been served with the complaint. RULE 16(b)(2): a. XII. ii. b. They can voluntarily dismiss a. A pretrial conference will result in a pretrial order that guides the remainder of the case. Default o The default process has two basic stages: the entry of default and the default judgment o The court may hold a hearing before entering a default judgment to require plaintiff to offer proof on damages and perhaps on other issues. But.” iv.    . since the opposing party already filed a motion for summary judgment. o Rule 41(b) also treats most dismissals as adjudications on the merits. WHEN must the judge issue the order? 1.ii. which means that they prevent the party from filing the same claim or claims again. ii. they’ll either need the court’s permission or the other party to agree. 1. (B) PERMITTED contents i. Include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced 5. but π will want to move the case along because it does n ot want the case to be involuntarily dismissed. Amend the pleadings 3. Modify the timing of disclosures under Rules 26(a) and 26(e)(1). THEME: Efficiency? Moving the case along via Rule 16(b) a. Note: Most states don’t have an equivalent rule. WHAT must be in the order? 1. b. or other discovery to be undertaken [RULE 56(f)(2)]. “As soon as practicable”. One of the most common documents used in a summary judgment motion is the affidavit. Rule 56(c)(1)(B)(4) evidence used to support or rebut a motion for summary judgment must be of the type admissible during trial. Modify the extent of discovery 3. 2. the rule exempts certain types of dismissals and gives the dismissing judge the authority to exempt others. 3. Set dates for pretrial conferences and for trial 6. What if the non-moving party says I need more time for discovery? 1. it is important to consider all the different ways a case may end prior to trial. Judges MUST issue a SCHEDULING ORDER! [RULE 16(b)] i. The court decides summary judgment motions on the basis of various documents [i. The order must limit the time to: 1. Provide for disclosure or discovery of electronically stored information 4. How judges cope with their dockets and the implication of those steps for litigants. b.Exam Tips If an exam question deals with resolving a case in the pretrial stages. JUDICIAL MANAGEMENT OF LITIGATION a. The order may: 1. 90 days after any  has appeared. which is a written document that the affiant swears under penalty of perjury that the statements made are true. affidavits. Can a party MODIFY a schedule? 36 . Join other parties 2. BUT. it is entitled to notice prior to this hearing. depositions. However. If a defendant has appeared in any way. OR c. RULE 16(b)(3): a. because decisions must be made by a reasonable jury. 2. Include other appropriate matters iv. judges sometimes grant summary judgment in cases like the one above anyway because “no reasonable jury could have decided otherwise. RULE 56(e): A supporting or opposing affidavit must be made on personal knowledge… i. transcripts. However. (A) REQUIRED contents i. iii. It’s up to the parties. RULE 56(f): Say that I cannot present essential facts right now – the court may order a continuance to enable affidavits to be obtained. depositions to be taken.

ii. including summaries of other evidence i. (i) The name. v. In the pretrial order. No – it is an adversarial system. but then the 9th circuit reversed and said that π could have gotten more warning before the case was dismissed). π’s attorney nearly did nothing. Why are these required? a. Lack of jurisdiction b. Or failure to join a party under Rule 19 2. There is no manifest injustice here – π could have easily researched some more and found this code. π’s theory of the case is negligence. Why are the sanctions fair? i.  is ready for trial now – could have spent that time preparing for other cases. Yes >> RULE 16(b)(4): A schedule can be modified only for good cause. b. RULE 41(b): Involuntary Dismissal i. the court should issue an order reciting the action taken. AND with the judge’s consent . Improper venue c. judge set schedule. EXCEPT one for: a. and phone number of each witness i. If the court issues “any just orders”. RULE 16(e): The court may modify the order only to prevent manifest injustice. Case was dismissed. so it’s vague. The court can issue “any just orders” OR the ones listed in RULE 37(b)(2)(A)(i)-(iv): 1. Be sure though that the second time you bring the suit it won’t be barred by the statute of limitations. a. Any dismissal not under this rule. like attorneys fees. Note: In amending complaints. the deadline is 30 days before trial. If a π fails to comply with the rules or a court order. What if the parties cannot adhere to the schedule? a.. How binding is the SUBSTANCE of the order? 1. and π saw it and could go back and work off of it. and add a state code that says tha t  had to fix the roof. (ii) The designation of those witnesses whose testimony the party expects to present by deposition. or iii. 1. etc. If a party does NOT comply with the dates. and those it may call if the need arises b.”] Why this difference? 1. 2. What if the court does NOT set a deadline? 1. it may be sanctioned: a. 1. the  may move to dismiss the action.) i. b. above]. Voluntarily dismiss i. a. or form introducing designated matters in evidence. (ii) Prohibiting the disobedient party from supporting or opposing designated claims or defenses. or as the prevailing party claims. Yes – we need to find truth and justice. address. 3. and the point of discovery is to narrow the facts down because it’s right before trial. (vii) Treating as contempt of court the failure to obey an order except an order to submit to a physical or mental examination [see discovery. (iv) Staying further proceedings until the order is obeyed. (iii) Striking pleadings in whole or in part. the court allows modification on a much broader basis [Rule 15(a)(2): The leave to amend “shall be freely given when justice so requires. How binding are the DATES of scheduling? 1. should he tell π to include it? 1. 2. THEME: If we allow this disobedience to happen. Note: π here is arguably put on notice of the consequences o f missing a deadline because of sanctions written into the rules.  landlord doesn’t fix it. Here. RULE 37(b)(2)(A) 8. This order controls the course of the action unless the party asks for and the court grants modification. 37 . π wants to amend it at trial. Rule15(a)(2) governs amendments early in the game. 2. these include LESSER SANCTIONS. 3. others will do the same instead of finding the truth in this case! b.  provided the names of witnesses. (A) Appear at a scheduling or other pretrial conference. 5. iv. (iii) An identification of each document or other exhibit. π slips and injures herself from the water the leaks through the roof. Operates as an adjudication on the merits. vi. Fairbairn (π has a leaky roof. Saunders v. Separately identify those the party expects to present. etc. THEME: Balance between the adversarial system and the truth-seeking system. c. (C) Fails to obey a scheduling or other pretrial order. AND. It’s not like the code was enacted after the π filed the suit. evidence. said another case occupied his time.1. in his trial brief. RULE 26(a)(3)(A): Required pretrial disclosures about evidence that may be used at trial but ISN’T SOLELY FOR IMPEACHMENT [impeachment exception]: a. RULE 16(d): After any conference under this rule. During pleading. 4. the transcript of the pertinent parts of the deposition [if it is not taken stenographically] c. McKey v. 1. Also. b. a. you only need notice pleading. or that it is dismissed with prejudice. Separately identifying those items the party expects to offer and those it may offer if the need arises. Later. (i) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action. 2. RULE 16(f)(1): If a party fails to: i. RULE 26(a)(3)(B): Unless the court states otherwise. 3. TIMING! Rule 16(d) governs matters that are already in the later stages of trial. (v) Dismissing the action or proceeding in home or in part. (B) Is substantially unprepared to participate – or does not participate in good faith – in the conference. Union Pacific Railroad Company (π sued employer for back injury. it’s discovery. a. 6. Modify the schedule vii. What if the judge knew of this code. 7. ii. and then the judge would just be doing π’s work for him. (vi) Rendering a default judgment against the disobedient party.

b. General idea is that if it is monetary remedy. but it is legal 38 . and that the parties do the proper work in the proper way) 2. but it is a legal remedy. you don’t need a jury. Sometimes the evidence on paper looks stronger than the evidence presented at the trial. Interesting to note that the 7th Amendment does not create a right. can be maintained or defeated only with a favorable finding on that issue. ran over by the traincars and died. Note: This was reversed by Learned Hand in the Court of Appeals – this is NOT black-and-white! 2. then no jury. 1. by a preponderance of the evidence. (A) Resolve the issue against the party. allow the jury to decide issues of credibility. (1) “In SUITS AT COMMON LAW” 1. thus jury. the court MAY: a. (Celotex said standard for summary judgment = standard for directed verdict). and the court finds that a REASONABLE JURY would NOT have a legally sufficient basis to find for the party on that issue. iii. Pennsylvania Railroad v. In Reid v.) v. San Pedro RR the court found that a reasonable jury could not by a “preponderance of the evidence” find that the cow had entered the tracks through the fence and not the gate. (Basically the court wants to be sure that the information presented pre-trial all makes it into evidence through the proper system. Judge is uncomfortable taking away the parties “day in court” 3.  states there was no collision. BEFORE a jury gets it >> after π/ present their evidence. Alleges that the cars on the train collided which jolted him off the train. the parties got their process – the trial. but whether it was more likely than not. (B) Grant a motion for JUDGMENT AS A MATTER OF LAW against the party on a claim or defense that. give me time.) 1. 2. ii. Would this violate due process? a. Also. fell out of his car onto the tracks. Evidence during summery judgment was incomplete. ii.XIII. b. It had better witnesses! So it’s safer to wait in that case. No – there is NO issue of credibility here. iv. but judge decides whether the inferenc e (3rd clause) is reasonable to follow. governed by Rule 50. If the suit was in court of equity.  moves for directed verdict. so what makes summary judgment/directed verdict ok? 1. 1791: If a court could bring a suit in a common law court. Difference between CREDIBILITY and REASONABLE INFERENCE: i. can find for π. Chamberlain (π on railroad. there must have been z. 1. What gives you a right to a trial by jury? i. (The party said “I know I don’t have enough yet. its conflicting evidence. BUT. The Issue wasn’t whether the ’s story was plausible. Replevin – you ask for the actual item back. The 7th AMENDMENT 1. everyone in a position to see said there was no collision. then it is a court of law and a legal remedy. but instead preserves a right that existed before the Constitution was enacted. and b. it must prove that no reasonable jury. Remedies sought: i. then the party got jury. Exceptions to this general rule: 1. No. saw the railroad. Note: The result might be different if the cow was closer to the fence than the gate. If there are no facts in dispute. it is not reasonable. Ejection – it is not a money remedy. What is the difference between courts of COMMON LAW and EQUITY? a. Juries exist for the facts of a case. a  could file a motion for directed verdict AFTER π presents evidence! b. b. Note: Same standard as summary judgment. it just comes at a later stage! So it’s okay. I saw y. Chamberlain (see above)  could have filed a motion for directed verdict after π presented its evidence – the one testimony. court says no. After the party has been fully heard on an issue during a JURY TRIAL. Reasons for the Court NOT to Grant Summary Judgment but later Grant a Directed Verdict 1. not the money. i. When does the right to trial by jury apply? i. but given the evidence. A directed verdict happens AFTER trial. The 7th Amendment (pg 292) grants right to a jury trial in common law courts. b. 2. Why did  wait? i. Determining Trier of Fact and Trial – Jury or Judge? a. under the controlling law. 2. c. Court says that it is possible that π’s story is true. The standard for a directed verdict. Judges may DIRECT A VERDICT After trial but before it goes to jury i. π just fell off. RULE 50(a): Judgment as a Matter of Law [“judgment as a matter of law” = “directed verdict] 1. i. Thus. π argues let’s take it to the jury. A directed verdict is usually motioned for. What is the STANDARD for Directed Verdict? a. If  is asking for a directed verdict. but more evidence is coming. vi. After “a party has been fully heard on an issue during a jury trial” [RULE 50(a)(1)] a. π’s evidence: O ne person who was far away at an acute angle said he heard a loud crash. Pennsylvania Railroad v. and inferred that there was a collision.” Jury takes on the first two clauses. i. Ie: “I heard x. but can be granted sua sponte. is the same as for a judgment as a matter of law: “by a preponderance of the evidence” (same as “clear and convincing evidence” but the latter is usually reserved for appeals). WHEN can a party file a motion for directed verdict? 1. directed verdict is just like summary judgment. ’s evidence: employees on the car that allegedly hit π’s car said there was no collision. or if the size of the hole was too large/too small for a cow to fit. Note: Isn’t there an issue of credibility here? Shouldn’t it go to the jury? a. and the question is one of law. a.

Teamsters & Helpers. under “Merger of Law and Equity” 39 . Union representative is in control here. Local No. it can provide a right to jury. Terry (see above) (The first factor was equity. TWO-STEP ANALYSIS: a. b. which essentially strips the party the right to a jury trial. Example: A tramples B’s flower garden. Torcomian (3rd party running Amoco franchise. and then for something totally different in suit 2] 2. If the claim is a STATUTORY VIOLATION. Teamsters & Helpers. Example: X sues Y for A in suit 1. the jury determines the legal issues. There has been a MERGER OF LAW AND EQUITY? [You can now get both types of relief in one claim] 1. Court agrees with  that this is more like a breach of fiduciary duty – look at the underlying relationship. So what’s the point of step 1? Justice Brennan in his concurring opinion says we should cut step (1) out! BUT. it is the CONSTITUTION. the second was legal.e. Beacon Theatres. ii. Inc.3. so sues. Does the JURY do all the fact finding? Even the equitable issues? i. BUT. c. Seeking an injunction 2. so weighs in favor of the legal. Habeaus corpus. In the same claim. Sounds like the court is saying the jury should have decided the legal claims. the dissent sa ys no. B wants injunction to stop A. STEP 2 – the REMEDY SOUGHT – is MORE important! i. We can sever the equitable claims from the legal claims [not likely to happen because it would be a waste of judicial resources] ii. The first factor was equitable. c. i. If there is NO common issue of fact. See above. 391 v. Inc. Sued union representing them for allegedly breaching duty of fair representation. Note: The court vacates the judgment and remands “at least to the legal elements of π’s claim and ’s counterclaim. A statute CANNOT take away your right to jury! b. In attorney client relationship. b. 2. the jury would be bound by the judge’s decision. not a STATUTE. what do we do with claims that weren’t existent in 1791?] 1. EQUITY CLEAN-UP DOCTRINE: Underlying claim is really equitable. So. but there is SOME type of MONETARY relief? 1. If the judge decided first. how do we determine whether or not there should be a jury?] 1. Terry (Supreme Court. and the jury hears the LEGAL issue! a. which is legal.) 1. Contract seeking money damages 2. π does not want jury. (2) Look to the remedy sought i. If there are no facts in common. But. so it is more like breach of fiduciary duty.  argues that breach of duty of fair representation is comparable to a breach of fiduciary duty – i. Procedural devices: i. What ISSUES arise when trying to determine whether or not a case is to be tried by a jury? i. but this is legal. So π drops some remedies/claims and tries only to seek equitable remedies. v. ii. The Appellate Court says that the lower court erred by refusing to afford s a jury trial. asking for EQUITABLE relief and LEGAL relief does NOT destroy right to jury trial. it is an equitable claim. (2) Where the “value of controversy shall exceed $20” 1. a. iii. a. Chauffeurs. So. Amoco Oil Co. Property actions seeking replevin or ejectment 3. fired. Types of claims: i. JOINDER [More than one claim in a case. Amoco says no agreement with .” a. Terry (see above) (π want back-pay. Look to the underlying relationship 1. between trustees and beneficiaries – this is an equitable claim. Its remedies are both legal and equitable. and that the judge should have a role! b. so it’s monetary relief. Teamsters & Helpers. Personal injury seeking monetary damages 1. Class action – equitable.) b. Main claim is equitable. THEME: Preference for preserving the right to jury! iii. Beacon Theatres. 391 v. Westover (cited in Amoco Oil) ii. 1. BUT. Alleges violation of the National Labor Relations Act – statute is silent on whether or not a claim is entitled to a jury. look to see if the statute says whether or not the claim is entitled to a jury . (1) Compare today’s claim to a 1971 cause of action i. Breach of fiduciary duty – equitable. Claims Traditionally in “Common Law” Courts Claims Traditionally in “Courts of Equity” 1. Amoco Oil (see above) (The joinder here is the counterclaim). but court allows some incidental money damages in equity. 2. Property actions seeking foreclosure of a mortgage d. and the judge determines the equitable. and the court ultimately says that there should be a jury. the JURY DECIDES THE LEGAL ISSUE FIRST! The judge is then BOUND by the jury’s findings! 1. the jury decides the legal issue first. 2. Contract seeking special performance 3. Local No. Chauffeurs. How is this different from diversity jurisdiction’s “amount in controversy”? Here.) ii.  does. Local No. we need to do the comparison still! (Conservatives). 1990) (Employees of a trucking company. Chauffeurs. v. v. and then  counterclaims with both legal and equitable claims. $20 means $20 – don’t interpret it with 21st century inflation. the court hears the EQUITY issue. π says this is more like attorney malpractice claim. gave it to someone . and the judge is then bound by the jury’s finding! a. What about NEW claims? How do we know if they are COMMON LAW or EQUITY? [like a statutory violation. If there are facts in common. etc. and the court ultimately says that the case should go to jury). what do we do if we have overlapping factual issues? We have factual issues that are important/relevant to both the legal and equitable claims. Joining a non-jury claim to a jury claim does NOT destroy the legal right to a jury! a. a legal remedy. Westover (see above). So who decides the facts? a. What if the relief sought is equitable. also wants money for the flowers. If there are facts in common. client is in control. 391 v.

If the judge issued a directed verdict. If you ask for a directed verdict and it is denied. and the losing party appealed. The cause of action here is a simple breach of contract claim. a new trial. ii. 2. It is the SAME as summary judgment and directed verdict! Beyond a preponderance of the evidence. What if the party asks for a jury. 1. (2) FLAWED VERDICT: the verdict is unjustifiable a. The simpler the case that went to the jury is. but allowed it to go to jury. Party can specify issues it wants a jury for. The more complex the case. and also says no new trial. The pre-verdict Judgment as a Matter Law is the DIRECTED VERDICT 2. RULE 59(b): No later than 10 days after the entry of the judgment. ii. What are the JUSTIFICATIONS for granting a new trial? 1. we will respect the jury’s verdict. Then the judge may decide to issue you JNOV. no new trial. RULE 38(b)(1): The party has 10 days after the last pleading to do so a. MOTIONS do NOT equal PLEADINGS. If a party’s motion for a JNOV is denied. v. Bad input yields bad output. b. What does “against the great weight of the evidence” mean? i. This is like filing for automatic appeal. What is the purpose of this? 1. Schenley Industries (π is manager of ’s company. a. WHEN must a party file a motion for a new trial? 1. Court of Appeals reverses the JNOV. What if a party forgets to do so? 1.e.  then filed a motion of JNOV. Does the party have to have a jury for ALL issues? 1. If a judge reverses the jury verdict via JNOV.RULE 38(b) 1. What is the STANDARD for JNOV? 1. So π wins). The post-verdict Judgment as a Matter Law is JNOV. (1) FLAWED PROCEDURE: the process leading up to the verdict has been flawed. A party may also request a new trial “in the alternative” If the JNOV later gets reversed. Granting a JNOV makes the new trial moot (because the new trial was an alternative to the JNOV]. there is no need for a new trial because it already happened. a jury will hear ALL issues c. then it’s fine. Good input but still bad output. but that we are renewing a motion that was delayed. iii. This is to save time on appeal! 40 . Why must we renew a directed verdict and not apply for a JNOV? We end up with a JNOV. a. then the judge can issue a JNOV b. If the jury disagrees. [as long as it does so within 10 days after being served with the demand or within a shorter time ordered by the court] v. JUDGMENT NOTWITHSTANDING THE VERDICT [“JNOV”] i. Lind v. i. No new trial needed if JNOV is appealed. RULE 59(a)(1) – grounds for granting a new trial 2. a judge can issue a JNOV. 2. If the jury agrees with the judge. we say we’re not really re-examining. The Seventh Amendment states that “no fact tried by jury” can be re-examined – so. it may request a NEW TRIAL >> [RULE 59] ii. it’s waived! [RULE 38(d)] iv. A party may ask for BOTH a JNOV and a NEW TRIAL [RULE 59(b)] a. No [RULE 38(c)] a. the court must decide on BOTH [RULE 50(c)] i. ii. If you don’t raise the demand to jury property. 3. and the losing party appeals. f. b. inadmissible evidence was admitted. Add demand for jury trial in pleading [usually the complaint] -. A judge may grant a new trial when the jury verdict is AGAINST THE GREAT WEIGHT OF THE EVIDENCE. NEW TRIAL i. the more respect we are going to have for the jury. Because the standard of granting a new trial! (see below) iv. alleges that there was an oral agreement between π and  to raise π’s pay. If this is the case. JNOV: Judge taking the case from the jury by entering a judgment as a matter of law [RULE 50(b)] 1. a. If a party does NOT specify. he has a new trial as a second-best alternative. Jury found in favor of π. iii. What is the STANDARD of granting a new trial? 1. A party MUST ask for a DIRECTED VERDICT before asking for JNOV! [RULE 50(b)] 1. and then changes its mind? 1. the other party may serve a demand for a jury trial on any other or ALL factual issues that are triable by jury. i. the more likely it will go to a new trial. How does a party obtain a jury trial? [RULE 38] i. you can RENEW a motion for a directed verdict.  can also ask for jury in its answer – the rule says “any party” ii. If the party has demanded a jury trial on only some issues. Remember. This is done because in case a party does NOT get a judgment in his favor. jury needs to determine if the oral agreement is enforceable. Example: bad jury instructions. b. we would need a new trial.] g. and in the alternative. Judge thought about granting directed verdict. iii. So we do we need a new trial if there was a flawed verdict? i. Because its simple. Why would a party not get a directed verdict but get a JNOV? a. b. BUT. ii. i. RULE 38(d): A party can withdraw its demand for jury trial ONLY with the other party’s consent. [The difference in terminology between FRCP and here is to avoid Constitutional issues regarding 7th Amendment not to have court re-examine facts after the jury.

What if the judge commented PRIVATELY? 1. have the judge rule on the new trial motion. judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality m ight reasonably be questioned. a. and possibly have another appeal. 1. Said that this case was more complex than another case the judge had granted an injunction in. . b. the evidence that was presented t trial would be enough to sustain the verdict.a. Can a court prevent parties from publicly commenting on pending matters? 1.Step-by-Step Analysis Subject matter jurisdiction a. BUT. This requirement allows the court of appeals to deal with both. implying that π’s case was not strong. and a new trial would be unnecessary. Because the “great weight of the evidence” standard that applies to new t rials is easier to satisfy than the standard used for JNOV. h. A high profile case. b. 2. go through each provision. that’s how they rule! 2. iv. BUT. Diversity Was there proper notice? Was method of service constitutional? Personal Jurisdiction a. or dealt with it because she has life tenure and does not need to worry about her reputation. v. Example: Judge finds that π’s evidence is impermissible – will grant JNOV. Look at the statute [federal/state] . a judge who grants a JNOV will ordinarily grant the conditional new trial. ii. i. Note: The judge could have just waited until after the case was over to comment. What if the judge commented IN COURT? 1.50 Multiple Choice Questions . Appearance of impropriety! 1. Federal: Rule 4(k) – go through each provision to see if they work/don’t work. 5. 2. 4.” 2. 3. State: See relevant state statute. a. so it is not freely given. A gag order orders all parties and attorneys to refrain from commenting publicly on a case. The court says that the judge should have recused herself). Yes – issue a GAG ORDER a. even if its innocent. b. BUT. ii. Is there an issue with BIAS if a judge comments? 1.What you can bring: (1) rules (2) outline 41 . πs sought injunction. Why is it such a big deal that the judge said this publicly? If she said it in court it would have been fine. it is inefficient to remand. It includes “such a HIGH ANTAGONISM/FAVORITISM” towards one party. It is bad to have EX PARTE COMMUNICATION with only one party a. the attorneys were interviewed and the Judge pres iding over the case publicly commented on it. Judicial Recusal? i. this is NOT always the case. Federal question b. Comment might appear to be improper. Long-arm statute: i.§ 455 1. No – courts have bias towards one side. so this is NOT okay. In Re Boston’s Children First (πs filed a suit against Boston’s elementary school – claimed they had been deprived of preferred school assignments based on their race. if the court of appeals determines that the evidence IS permissible.1 Short Answer – [ minutes] . 1. This is okay! Court’s do this all the time – it’s one of the purposes of the court.[ minutes] 60% . iii. iii. a. What is “unfair bias”? i. Due Process Analysis >> “minimum contacts” Venue a. The judge must RECUSE himself -.FINAL EXAM 40% . We want to maintain faith in our justice system. this is usually done only in cases where the court worries that public comments may render the ability to obtain an impartial jury impossible/difficult. If the appellate court reverses the JMP. It’s more about UNFAIR BIAS. i. Judge cannot speak to one party without the presence of the other.2 Essay Questions – [ minutes] . “Any justice.