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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 voluntarily dismiss? ...........................................................................................................................................33 If 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 creditbe 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 dont 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 theres a case in court, doesnt mean that the law of that court applies! 1. State courts can apply laws of other states dont confuse law with court viii. Remember, if you cant 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 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) - ( 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 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 , 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) ( 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. tried to claim that he was citizen of France, but court says no, residency does N OT equal citizenship. Then tried to argue that he was a citizen of CA, but this was also rejected because didnt 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 corporations PPB: a. Corporations nerve center where everything is controlled b. Corporations 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 LLCs?) 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 judges 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) ( 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 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

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

c. With respect to Federal Question, 1331 applies to federal district courts, 1257 applies to Supreme Court i. Constitution itself has the phrase arising under Constitution (Article III, section 2) 1. Osborn v. Bank of the United States (U.S. 1824) interpreted arising under broadly the language in the Constitution (Article III) is broad. Only requires a federal ingredient. ii. 1331 has been read more narrowly, and is interpreted as being a well plead complaint rule for lower district courts 1. Article III does NOT confer subject matter jurisdiction on the lower federal courts! 2. Because Congress has the power to create lower federal courts, it has been held that it also has the authority to define their jurisdiction. 3. Why do we care? Because Congress can change it this is similar to the amount in controversy requirement and Strawbridges complete diversity requirement >> SMJ over federal question is created by statute, NOT constitutionally required. iii. Under 1257 the Supreme Court has the right to review the decisions of a States highest court if the issue is Repugnant to the Constitution v. 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, for lack of diversity or federal question jurisdiction

i. Personal jurisdiction CAN be waived. ii. Introduction Only about the . Once a begins arguing a case based on the merits, PJ has been waived. 1. Writ of execution: Authorizes the sheriff to seize any property belong to the , sell it, and give the money to the to enforce suit the purchaser of s property is given a sheriffs deed 2. Constructive: Means pretend/fictional 3. Attachment: The legal term for an officially sanctioned seizure of property 4. Full faith and credit clause: Article IV, Section 1 a state has to recognize judgments rendered in another state. 5. Interlocutory Appeals are appeals that occur prior to final judgment on a specific issue of the case (ie: personal jurisdiction) 6. USC 1738: Full-faith and credit - Federal courts have to recognize judgments of state courts iii. Obtaining personal jurisdiction? (Part I Old Rule: Territorial jurisdiction) 1. In personam jurisdiction (Tag/Transient jurisdiction are whats left): Court has jurisdiction over person, personally served, within the territory, even if they are a non-resident 2. In rem jurisdiction: Jurisdiction over property in territory if suit is about the property itself, requires constructive service. 3. Quasi-in rem jurisdiction (Doesnt Exist anymore): Using property (and constructive service) to get to the person property must be attached BEFORE judgment is entered, 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. Pennoyer v. Neff (U.S. 1877) - hired lawyer, and didnt pay lawyer so he was sued by the lawyer. Lawyer did constructive service by publication, never saw it, so default judgment for and land was seized. Pennoyer bought land (after judgment), and Neff sued in federal court to receive possession of land. Court said the property was NOT sold under the courts jurisdiction! The land was not attached before judgment was rendered i. Didnt address situations with corporations and residents/residents who are not in the state iv. Obtaining personal jurisdiction (Part II Shifting to Modern Rule; Territorial jurisdiction no longer makes sense) 1. Court moving from the idea of is it physically there to is it fair a. Milliken v. Meyer (U.S. 1940) -- was resident of WY but wasnt in WY. was personally served in CO, said it was following a state statue allowing WY residents to be served out of state. argues that statute violates due process; states only have territorial jurisdiction. used a collateral attack, Supreme Court said there WAS jurisdiction i. If is served a usual place of abode, that is sufficient, even if is not personally served. ii. Court said mere absence from the state does not terminate states authority over the person indicates a shift from Pennoyer. 1. Key: Traditional notions of fair play and substantial justice replace the notion of territorial boundaries. b. Hanson v. Denckla (U.S. 1958) (PA decedent made a trust with a DE corporation, then moved to PA and died will was disputed. Litigation brought both in DE and FL. Issue of whether or not FL has jurisdiction). FL does NOT have jurisdiction >> there were some contacts: was sending money to decedent in FL. BUT, did NOT solicit the business! Decedent made unilateral decision to move to FL. No purposeful availment! It is essential that purposefully avail itself of the state otherwise exercising PJ violates traditional notions of fair play. i. Minimum contacts means more than what McGee suggested. 1. Shift towards is it fair >> its not fair to subject to a states jurisdiction if it did not purposefully avail itself to that state c. SPECIFIC and GENERAL jurisdiction i. Specific jurisdiction: The claim itself arises from activities within a forum state. Requires minimum contacts or physical presence. 1. Minimum contacts the closer the claim is with the contacts to the state, the less substantial the contacts need to be. The further the claim is from the contacts with the state, the more substantial the contacts need to be. (Sliding scale) a. McGee v. International Life Insurance (U.S. 1957) Complete shift from Pennoyer; minimum contacts are enough to establish PJ. CA buys policy from TX company dies, doesnt want to pay beneficiary sues in CA. argues no CA jurisdiction because was the only CA customer. Court says there is SPECIFIC jurisdiction; the underlying claim (breach of contract) is directly related to the s contact with CA because contract is with a CA policyholder. i. (1) Presence doesnt really mean physical presence anymore >> minimum contacts is the new approach ii. (2) Minimum really means minimum >> here only had one customer in CA, but was still subjected to CAs jurisdiction. ii. 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. 1. Corporations: Continuous and systematic activity; GJ in state of incorporation and PPB. a. Corporations can be subject to the general jurisdiction in more than one state. Think McDonalds. 2. Individuals: Domicile constitutes general jurisdiction over an individual. 6

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

3. Under both approaches, the objection to jurisdiction must be raised immediately or it is lost . Doctrine Constitutional Source Statutory Source Effect Personal Jurisdiction Due Process Clause (14th Amendment) State and federal long-arm statutes, e.g., 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.g., 28 S.S.C 1331, 1332, etc.) Limits power of federal courts to certain kinds of cases (those involving federal claims or diverse parties, etc.)

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

i. Theory 1: Ripping DVDs causes injury in CA and website is viewable in CA. 1. ZIPPO test: used when dealing with the INTERNET & SPECIFIC JURISDIICTION a. Passive just posts information. Not enough to confer PJ on the website alone. b. Interactive some exchange with people in forum; must be investigated further c. Active clearly does business; repeatedly enters contracts with people in forum. Establishes PJ. 2. Awareness that code is viewable in state isnt enough, because then everyone could be hailed into court all over the country, even unsophisticated s. Too much PJ. Not enough to confer PJ just on the basis of the websites existence. ii. Theory 2: intended to cause harm in CA 1. Effects test: Look at effects of intended injury! a. Personal jurisdiction is appropriate if effects of s conduct is felt if he intended to harm there i. BUT, here, didnt really know that the effects of his harm would necessarily be felt in CA. Also, its possible that no one would use the code! He didnt really know for sure that someone would use it. b. NOTE though, that here, can bring his claim to TX or IN there might be jurisdiction here if had no where else to bring his claims

i. General jurisdiction for a CORPORATION: 1. A corporation can be sued for any C/A in its state of incorporation OR PPB. If s contacts with a forum state are so systematic and continuous, the court need not address the relationship between the C/A and the contacts with the forum state. a. Perkins v. Benguet Consolidated Mining Corp. - OH owns stock in a mining company that operates in Philippines. doesnt pay dividends, wants to sue in OH in state court. President of company went to OH during Japanese occupation of Philippines, office records in OH, salary checks, bank accounts in OH, transfer agent, had directors meetings, etc. No mining property itself in OH. C/A has nothing to do with OH. No SJ. BUT, court said that the activities were systematic and continuous so there is jurisdiction. General jurisdiction. i. War time emergency; not standard test. b. Helicopteros Nactionales de Columbia v. Hall - Columbian company, Helicopteros, sued in TX by relatives of people who died in a helicopter crash in Peru. Wrongful death suit. had contacts in TX: flight by president to TX to negotiate contracts, purchased 80% of helicopters from TX, sent pilots to train in TX, paid through a TX bank account. NO jurisdiction here. Ressler said that this is THE continuous and systematic case i. SJ C/A has nothing to do with TX. C/A was pilot error; minimum contacts does not work and never bro ught it up. ii. GJ Are there systematic and continuous contacts with forum state? Court says no. 1. Mere purchases, even occurring at regular intervals are not enough to confer general jurisdiction a. Policy Argument: No such thing as a local transaction anymore. Subjecting someone to jurisdiction would allow all of us to be subjected to jurisdiction wherever we purchased something. i. Why not sellers? The idea is that we dont want to discourage people form buying across state lines itd have huge effects on the economy. Dont penalize people for their purchases. c. Coastal Video Communications - a note case created back support product first, then created one but with video instructions. afraid of being sued for copyright infringement, so sought declatory judgment [before you release product, make sure its okay to. Brought suit in VA. sold products everywhere, general jurisdiction! So can sue in VA. But, both are internet companies, so we need to use the Zippo test to see if theres specific jurisdiction i. BUT, the C/A here is a declatory judgment for copyright infringement its if s product breached s copyright so s sales in forum state have nothing to do with COA! So NO SPECIFIC JURISDICTION!!!! ii. Look for general jurisdiction >> Here, there arent enough facts to see if there was systematic and continuous activity, so ordered discovery to find out. 1. Here, 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. d. Goodyear v. Brown NC teenager killed in bus accident in France. Tires designed overseas by GY subs that make tires for Europe and Asia. Parents bring suit in NC against 3 subs and parent company. Lower courts: No SJ because C/A had no relation to NC. GJ because small and continuous flow of affiliates reached NC through stream of commerce. Supreme Court says this is insufficient to establish PJ. i. New standard: Minimal sales are insufficient for GJ. 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. 1. At home is similar to an individuals domicile. Court disapproves sprawling view under which any substantial manufactur er or seller of goods would be amenable to suit, on any claim for relief wherever its products are distributed. a. Does not rule out that at home might be broader than state of incorporation and PPB. e. NO tag/transient jurisdiction for corporations (a.k.a. being physically in the state). i. Corporations cant physically be there ii. General jurisdiction for an INDIVIDUAL: 1. General jurisdiction over an individual where they are DOMICILED a. Burnham v. Superior Court , CA resident, and , NJ resident. They were in NJ, agreed when moved to CA, shed file for divorce in CA, preemptively files in NJ, but lawsuit dies. When goes to CA for business, sues him for divorce. PJ is necessary because wife is looking for more than just the status of the marriage ($). No specific jurisdiction because s presence isnt related to the underlying C/A (the divorce). No general jurisdiction >> no continuous and systematic activity and domiciled in NJ. No jurisdiction. i. BUT, can argue in personam jurisdiction! Pennoyer v. Neff 1. How do we distinguish Pennoyer and Shoe, a major post-Pennoyer case? a. International Shoe dealt with absent >> so it EXPANDED personal jurisdiction. Nothing in Shoe was about SUBTRACTING jurisdiction. All assertions of state court jurisdiction must be evaluated according to the standards set for the in Shoe. b. Shoe and minimum contacts only applies to ABSENT DEFENDANTS!!!!! i. Scalia: long-standing principle that if you are in the state, the state has PJ over you. 9

ii. Brennans Concurrence: If youre tricked into the jurisdiction, youre really involuntarily there, so no jurisdiction. The service of process was obtained by force or fraud. ii. Note: Divorce is an exception to Pennoyer! 1. Status of the marriage can be adjudicated without PJ. Here, the status of the marriage isnt the only thing at issue, its also how to split up the assets, etc. b. There is tag jurisdiction over individuals!!


i. State can have either general jurisdiction or specific jurisdiction over a corporation or individual: 1. General jurisdiction: a. Corporation i. Continuous and systematic; ii. Principle place of business, and; iii. State of incorporation 1. Corporations can be subjected to the general jurisdiction of more than one state b. Individuals i. Domicile ii. Continuous and systematic [?] iii. Tag jurisdiction 2. Specific jurisdiction a. Corporation i. Minimum contacts (see below for a detailed outline on specific jurisdiction) 1. International Shoe, Shaffer v. Heitner ii. Internet business? Use Zippo test b. Individual i. Minimum contacts 1. International Shoe, Shaffer v. Heitner c. Effects test i. Calder v. Jones


i. Introduction everything above is official power of the courts. 1. A may, either at the outset of a lawsuit or before it, consent to jurisdiction in a forum. 2. If a party consents to a courts jurisdiction, it is unnecessary to evaluate minimum contacts consent alone is sufficient to establish jurisdiction. ii. EXPRESS CONSENT (contractual consent) a. Parties can consent to choice of law. b. A party can appoint an agent for service of process. By appointing an agent, you expressly consent to service of process and PJ in a forum. i. National Equipment Rental v. Szukhents - Szukhents leased farm equipment, 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. Supreme Court said this was okay. 1. This is just another mechanism of consent. 2. Note: This clause was permitted, but it did NOT require that the suit itself be brought in NY. Thats a forum selection clause c. FORUM SELECTION clauses - parties specify that disputes can be heard only in a particular court. i. Parties can agree to choice of law (ie: Burger King) or choice of forum (ie: Carnival Cruise Lines) ii. Appointment of an agent in a forum is consent to personal jurisdiction in that agents forum. iii. Forum selection clauses can be enforced only if they are fundamentally fair. iv. Fairness is measured at the time the contract was MADE, not when the case is filed. v. Carnival Cruise Lines, Inc. v. Shute - Shute bought tickets on the ship, was injured on the ship, the ticket had a forum selection clause. The Supreme Court held that this FSC was enforceable. vi. Forum Fairness factors: a. Special interest for - wanted to centralize litigation in FL, didnt want to be sued everywhere. Limit foura where will be sued and lower costs for customers. b. Open to negotiation This factor concerns the s ability to negotiate the contract, not about a take it or leave it aspect, i.e. dont argue that could have just not gone on the cruise, so they had lots of negotiation power. c. Notice FSC was on ticket. d. Motive/Reason if it is to discourage lawsuits, (bad faith) court will not allow FSC. If it is to dispel confusion and keep costs low, it is allowed. The effect though is that it does discourage lawsuits. d. COGNOVIT clauses - automatic judgment (The win goes to the party that wanted to include the clause originally.) i. can set aside judgment >> not good for because it SHIFTS the burden. Some courts say this is illegal, some say must really benefit from clause. 1. If agreed to cognovits, and then sets aside judgment, HE becomes , and the previous becomes the >> shifts burden 2. This is a form of consent. 10

ii. D.H. Overmyer Co. v. Frick Co >> notes case >> said that cognovits clauses were okay, 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. e. ARBITRATION clauses - contract says the dispute will go to a private adjudicator i. Alternative dispute resolution [ADR]: Dispute goes to a private adjudicator ii. The Rules of Procedure is the default, but parties can contract around procedure and agree to their own . iii. Courts say that this is okay 1. Note: There is an issue here >> ADR is private, public never knows whats going on. ADR sometimes addresses public wrongs, and cant set precedent in ADR for these public wrongs. (Stevens in Carnival Cruise). 2. IMPLIED/IMPLICIT CONSENT Consent based on the States power. Based on minimum contacts etc.

i. Introduction 1. Notice is the other primary requirement for exercising personal jurisdiction. PJ is separate and distinct from notice. Both MUST be met in order for a court to have power over . 2. Definition of NOTICE: A gives notice of a pending action when she serves the summons and a copy of the complaint on the . ii. Both CONTACTS and NOTICE are required >> Due process requires both! 1. Wuchter v. Pizzutii - Statute said that Sec. of State of NJ is agent for drivers going through NJ, but the Sec. of State is NOT required to give drivers notice. Supreme Court said this is NOT okay. Appointing an agent is NOT enough, you need to give notice! Separates PJ from notice. Since statute did not require notice, it was unconstitutional. 2. BUT, does NOT need to be ACTUAL notice >> just reasonably calculated iii. Service of Process must be REASONABLY CALCULATED under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane 1. Mullane v. Central Hanover Bank & Trust Co. - NY banking law allowed various trusts to pool assets. One of the conditions was that every 3 years there had to be a judicial settlement of accounts (essentially an audit). The law allowed notice by publication. But, some of the beneficiaries did not exist at the time the trust was formed. The court said publication for the non-existent ones was okay because it was not substantially less likely than alternatives to inform. Notice was mailed to the known beneficiaries. The court says notice is sufficient by regular mail, which is usually not okay, because those who didnt get notice will have their interests protected by the other beneficiaries who received notice. Collective interest plays a large role here. 2. NOTICE TEST: 2 prongs; reasonably calculated (Page 144 of textbook): a. Must reasonably convey the required information, and afford the parties an opportunity to present their objections (Statutory) b. Reasonably calculated the form chosen is not substantially less likely to inform than other customary substitutes (Due Process Clause) 3. Where notice is not guaranteed, the method chosen must not be substantially less likely to inform beneficiaries. a. Jones v. Flowers (Page 148, notes case) State authorities sent 2 certified mail notices to a house, but owner does not live there. House is sold; owner sues to get the house back. There was a Due Process violation first certified letter was sent back, and state had other methods of finding him! Certified mail is insufficient when returned to sender. Must take practical steps. i. Note: Whats an argument that certified mail is okay with Due Process? It was owners responsibility to let people know where hes moved, AND, notice doesnt actually have to be notice >> the letter was reasonably calculated. ii. Court said it was a DP violation certified mail didnt work the first time, so they should have done something else. 4. 2 pronged analysis for NOTICE: from Mullane a. Rule 4 must be satisfied; method is important. Look to state statutes. i. Mullane it satisfied the statute but was NOT constitutional. b. Constitutional requirement for notice: 1) reasonably calculated to inform 2) not substantially less likely than other means 5. PJ is not ok without proper notice. 6. Today, courts have said that service of process = jurisdiction. If statute authorizes service of process, then national personal jurisdiction is met. Minimum contacts [Due Process!] a. Bell South & Merriman (see below in long-arm statutes) iv. RULE 4 governs service in FEDERAL court 1. Rule 4(e): Serving an INDIVIDUAL in the U.S >> what are the appropriate methods for doing so? a. (1) Follow STATE law of whatever state were in [state can be where you are serving or where the suit is] b. (2) Personal service [anyone above 18 years old AND is NOT a party to the suit (Rule 4(c)(2))] c. (3) Leave copy at individuals dwelling with a person of suitable age and discretion residing therein d. (4) Deliver papers to agent. 2. Rule 4(h): Serving CORPORATIONS or other entities a. If a is served IN the U.S., Rule 4(h)(1) applies i. The available methods under Rule 4(h)(1) parallel the methods for service on individuals under Rule 4(e). b. If a is served OUTSIDE the U.S., Rule 4(h)(2) applies 3. Rule 4(g): Serving CHILD or INCOMPETENT person [someone who for some reason has a diminished capacity for understanding whats happening] a. (1) Look at STATE law, BUT, it has to be the state law in the state the service is made, NOT where the cause of action is 4. Rule 4(i): Serving the U.S. itself: a. Look at the rule itself 5. VERY specific rules, watch out for ands and ors 11

a. Mwani v. 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. We dont know where Bin Laden is, he could be in the US, but here its okay because its not substantially less likely than any other method.) b.

i. A can ask to WAIVE service of process >> it is an ALTERNATIVE to actual service 1. Rule 4(d)!!! a. Under this rule, the has a DUTY TO AVOID unnecessary expenses. b. (So should do this if she wants to sue an individual in the U.S. at a minimum cost). 2. can waive service of the summons >> waiver form is FORM 5, page 172 of rule book. a. This form needs to be sent if wants to serve and have him waive the service of the summons. ii. Why should waive service of process? 1. Rule 4(d)(2): Court imposes cost of service on a who refuses to waive service without a good cause [a penalty] a. Example of a good cause to refuse to waive service? Would it be that there is no jurisdiction over the ? 2. Rule 4(d): gets 30 days to answer the waiver more time of agrees waive [a benefit] rules usually require 20 days. iii. What if wants to contest jurisdiction? 1. He can still waive it a. Rule 4(d)(5): Waiving service of summons does NOT necessarily mean youre waiving right to contest jurisdiction. iv. Benefits v. Pitfalls: 1. Benefits to : (1) Cheaper, (2) cant defend on improper service 2. Downfalls to : (1) Statute of limitations may run (Rule 4(d)(4)) 3. Benefits to : (1) Extra time to answer complaint 4. Downfalls to : (1) If does not waive for a good reason will incur the cost of personal service

IV. Long-Arm Statutes a. Introduction

i. Same two-step analysis as notice >> (1) statute? (2) constitutional? ii. A state may decide it does NOT want personal jurisdiction over certain cases even though it constitutionally has it 1. Waste state resources, they can be sued elsewhere, dont want to deal or interpret other states law. 2. Without long arm statutes every decision would become a constitutional issue. iii. Not about extending jurisdiction, its about restricting PERSONAL jurisdiction that the state constitutionally has. iv. A state CANNOT expand jurisdiction beyond the Constitution >> so, by definition, 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. When are State long-arm statutes enforceable?

i. Two-step analysis: 1. Is there a statute that authorizes it? a. Gibbons v. Brown (Car accident in CA, Gibbons sues Brown in first suit, in second suit Browns wife sues Gibbons. In second suit, there was no jurisdiction over Gibbons. The long arm statute said that if it was a substantial and not isolated activity then there is jurisdiction, but court says that this is not satisfied.) This is a good example of a case that stops after the first step, never reaches constitutional analysis. b. Carrington v. Schutts (, KS citizen, wants to sue , WI citizen in KS for child support. Served in WI, KS statute allowed her to do this >> no issue with notice. BUT, court says there is NO personal jurisdiction. Long arm statute says if you commit a tortious act in the state, then youre subjected to personal jurisdiction. But, here it was not a tor t >> consensual sex is NOT a tort. There is no proof that is the father. i. Note: The tort occurs where the INJURY takes place, NOT where the economic harm takes place. c. Gee v. Reingold ( retained , a TN lawyer lost suit because didnt do anything [default judgment] and so he sued Court finds no jurisdiction under the states long-arm statute.) 2. Does the statute comport with Due Process Clause of the 14th Amendment? a. Merriman v. Crompton (KS resident suing tire manufacturer for engaging in price fixing some corporations filed a certain form, which has written consent that actions may be commenced against it by service on the secretary of state >> theres a long arm statute b ut there is no notice requirement >> this would not be okay under Wuchter! But, court says that service of process = personal jurisdiction. So step 1 is okay >> now we do constitutional analysis. For the companies who filed that form there is due process, since it was express consent. Corporations who didnt file >> there was no express consent, but was there implied consent >> do systematic and continuous a nalysis! Court finds no general, but does find specific jurisdiction. So, jurisdiction is granted via long-arm statute. And it satisfies due process) i. RECAP: Court looks beyond long-arm statute here to look for general jurisdiction it does for some s, and for some it doesnt. 1. Says that general jurisdiction comports with DP 2. Then looks at long-arm statute for specific jurisdiction over other s 3. Then says that specific jurisdiction is okay with DP 3. BUT, a COUNTERCLAIM can still remain >> if you sue in a state, you can be subjected to personal jurisdiction on a counterclaim even if the original suit ends! a. Saenger (page 156, notes case). 12

ii. What about FEDERAL long-arm statutes? 1. Federal long-arm statute is RULE 4(k)! Same analysis! a. Mwani v. Bin Laden (see above). 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, its not contacts with D.C. specifically, its contacts with the nation as a whole. i. Here, its contacts with the U.S. as a whole why? Because were looking at Due Process through the Fifth Amendment! (not the 14th, which applies to states). s contacts were fatwas published in the US, power cord of s cell phone was shipped to VA, scheduling of interview with organized in the US, interviewed on CNN which was transmitted to the US! So contacts are sufficient. ii. THEN, the court does fairness factors >> we do fairness factors if contracts sufficiency are NOT sure (because contacts in itself is a notion of fairness. Here the court says it is fair (foreseeability, purposeful availment). iii. 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, but it could be a potential issue. b. Peay v. BellSouth Medical Assistance Plan (s daughter needed healthcare, went to doctor in UT -- insurance company didnt pay 100% for the treatment sued in federal court (federal question, ERISA). 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, says its enough and then does fairness factors and says yes to personal jurisdiction. i. Note: We still dont know whether national contacts are enough because in this case 4(k)(2) didnt apply. c. Omni Capital 1987 Supreme Court case federal statute there did NOT provide for personal jurisdiction vis a vis service. iii. It is harder to DEFEAT personal jurisdiction than it is to CONFER it (like we said in Burger King). iv. REMEMBER, go through ALL provisions of the long-arm statute to see if one of them fits the case!! v. PERSONAL JURISDICTION ANALYSIS: 1. Long-arm statute? a. Long-arm statute for general jurisdiction? i. Yes: Do due process analysis 1. Does it/does it not comport with DP ii. No: Is there a long arm statute for specific jurisdiction? 1. Yes: Due process analysis 2. No: No jurisdiction. 2. General jurisdiction? 3. Personal jurisdiction?

V. Venue a. Introduction
i. Venue is the place the legislature requires a particular action to be brought. ii. Venue considers the convenience to the parties. Venue is a purely statutory concept; there are no constitutional requirements. 1. Concept of venue is not required by the Constitution 2. Its about which court a particular case may be filed in in a particular court system. iii. Just because venue is proper doesnt mean the case can be tried there. Personal Jurisdiction trumps venue b/c it is a Constitutional issue. iv. 1404 is used to change venue when venue is proper but not convenient v. 1406 is used to change venue when venue was improper in the original court

b. STATE venue
i. All 50 states have their own venue statutes ii. Venue statutes usually include: 1. Where the resides 2. Where the action arose.

i. 28 U.S.C 1391: Primary federal venue statute 1. (a)(1): Diversity In cases where SMJ is based SOLELY on DIVERSITY, venue is in play in any of the following districts: a. (a)(1): A district in which the resides, if all s reside in the same state; b. (a)(2): Any district in which a substantial part of the events or omissions giving rise to the claim occurred; c. (a)(3): If there is no other option, any district in which any is subject to personal jurisdiction at the time the action is commenced. i. This is a catchall in case neither of the other two apply 2. (b)(1): NON-DIVERSITY >> venue in federal question, combined and supplemental jurisdiction cases in cases where jurisdiction is NOT based solely on diversity, venue is proper in any of the following districts: a. Same as (a)! (see above). b. Note: Because 1391(a) and (b) are almost identical, the same interpretive rules generally apply to both. 3. 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. a. For corporations, we take each judicial district as if it were its own state. i. QIC v. Williams (Diversity case suing for copyright claim, breach of contract, and trade secrets. moved to dismiss for improper venue & improper jurisdiction. Personal jurisdiction over two of the s, not over the 3rd, so the 3rd one is gone for venue, look at the cause of action! For the copyright claim, 1391(b) applies because its a federal question >> it says except as otherwise provided by law. So, 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. What about the tort (trade secrets) claim? Venue is improper, the tort did NOT occur in the district! 13

b. For purposes of venue, treat each district as its own state >> i.e. SDNY is NOT the same as EDNY >> they are both appropriate venues because both are in NY state. 4. (d): Provides that an ALIEN may be sued in any district. a. BUT, the court must also have personal jurisdiction over the alien b. Dee-K v. Hevafil (, purchasers of s product, allege s were engaging in price fixing and restraining trade. The Clayton Act applies here >> lays venue where is found or where it transacts business. 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. Note, that the court did the entire personal jurisdiction analysis BEFORE determining if venue was proper. To determine if venue is okay for US s, so we do the entire analysis all over again with the SMJ, proper notice, etc. (see box at end of outline). Here, 1391(b)(3) may apply >> where may be found is where it is subject to personal jurisdiction court says we dont have enough information regarding s contacts to determine if it is subject to personal jurisdiction, so orders discovery.)


i. Introduction 1. Even if we have personal jurisdiction, notice, and venue, we still might not want to have it because of CONVENIENCE! 2. Forum non is a COURT-CREATED doctrine that allows a court to dismiss an action even though venue is proper. 3. Forum non cases: a. Federal Foreign b. State Foreign c. State State ii. When can a party move a case under forum non conveniens? 1. Gilbert/Gulf Oil factors: Use these factors to determine whether forum non should be granted a. Private factors: Factors related to the individual litigants i. Where the underlying events occurred ii. Where the witness and physical evidence are located iii. The comparative overall costs of litigating in the two places iv. Whether it would be possible to compel witnesses to testify in the forum chosen by the v. Language issues vi. Whether a judgment by the chosen court would be enforceable in the place where s assets are located b. Public factors: Relate to the court system i. Having local issues settled locally; ii. Jury duty burden; iii. Relief of Court congestion; iv. Having a diversity trial in a forum that is @ home w/ the law v. Conflicts of law 1. Piper v. Reyno (Supreme Court case Plane crash in Scotland, plane manufacturer and propeller manufacturer are in US. Court applies the private and public factors here, grants forum non and sends case to Scotland) For the private factors, the Court stated that the wreckage and other witnesses where in Scotland making it the more convenient place. For the public factors, the Court stated that Scots law would govern and that Scotland had the predominant concern with the dispute. 2. There is a presumption for the s choice of forum! a. BUT, with foreign s, that presumption is weakened. b. Why? Because foreign s will forum shop (choose a forum that has most favorable law) i. Guidi v. Inter-Contentinal Hotels Corp. (Page 170, note 7) s are US citizens, shot in Egypt, shot hotel owner who was based in NY >> form non. Evernthing happened in Egypt, BUT the case belonged in the US! s choice of forum if he is US citizen is favored! Case stayed in U.S. ii. Gonzales v. Chryslyer Corp. (Page 171, note 7(b)) Mexican 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, 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, in Gonzales it was a Mexican citizen >> presumption of s forum choice in Guidi 3. Forum non analysis looks at: a. Gulf Oil factors b. Presumption iii. A court can make a FORUM NON ruling even though it does NOT have PERSONAL JURISDICTION! 1. Sinochem v. Malaysia International Shipping (Supreme Court 2007 In China, sued for backdating bill of lading, and then sues in second suit for misrepresenting vessels quality and shipment. Court says that we need more discovery to determine if there is personal jurisdiction [minimum contacts] the district court doesnt do personal jurisdiction analysis because its dismissed under forum non, and Supreme Court says its okay!) a. Why is this okay? Forum non is NOT a dismissal on the MERITS >> so there is no claim preclusion! b. SAVINGS STATUTE >> When a fails in a case other than on the merits, the may commence a new action within a year of the first case or within the statute of limitation, whichever comes later. c. A court can dismiss on forum non grounds even if it doesnt have personal jurisdiction because theres really no penalty! d. When a court dismisses for Forum Non w/o deciding personal jurisdiction, it is unclear whether they can set conditions in the new forum.

i. Rule 1404(a): For convenience purposes mostly [when venue is proper] 14

1. Under this rule, the law that is used is the TRANSFERORS law >> case was properly in the forum, change is only for convenience, so original forums law is used! a. Smith v. Colonial Penn (Breach of contract case, wants to transfer to a different division of the Southern District of TX >> TRANSFER APPLIES WITHIN A DISTRICT AS WELL!. argues no airport in that division, court says no. Court says s choice of forum is favored.) ii. Rule 1406(a): Used when venue was improperly invoked 1. Under this rule, the law used is NOT the transferors law! Case was NOT prop erty in the original forum, so that law cannot apply! 2. Also used when personal jurisdiction is lacking as well! a. Example where venue is good, but no jurisdiction >> Volkswagen!! Accident in OK, so venue would be okay, but no personal jurisdiction >> 1406(a)! b. Note: Piper also discusses this the s moved under 1404(a) and 1406(a) before bringing up forum non. 3. So we need to know WHY were changing venue! a. Why? Because of the law we are supposed to use! iii. No subject matter jurisdiction? 1. 1631: Case can be moved >> if you file in improper court because of no SMJ, it will transfer to the proper court, and statute of limitations will be as if it was filed in the other court. iv. TRANSFER v. FORUM NON 1. Forum non is a dismissal, to a foreign court or to a different state. 2. Transfer is within districts, etc.

VI. Joinder of Claims and Parties a. Introduction

i. There are two types of joinder: 1. Joinder of claims - Governed by RULE 18 2. Joinder of parties Governed by RULE 20-21 3. Courts may add/drop/sever parties in a claim for the sake of the case Rules 42(b) & 21.

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 in the other claim]

i. Introduction: 1. Policy: Convenience and efficiency 2. Rule 18: A party asserting: a. A claim b. A counterclaim i. Defenses/Answers are shields they bar recovery from ii. (Counter/Cross) Claims are swords they allow recovery from the c. May join as many claims against . i. Note: States may use different terminology d. It does not say you MUST, but there are certain cases where you SHOULD >> if you dont you may be bared from bringing the other claim (i.e., claim preclusion) 3. Rule 42(b): A court MAY separate claims for convenience >> can separate trials 4. Rule 21: Deals mainly with misjoinder of claims, but court can sever any claim against a party. ii. Must bring a COUNTERCLAIM? 1. must bring a COMPULSORY counterclaim! a. RULE 13(a): Must state as counterclaim if it arises out of the same transaction/occurrence as the original suit. i. Plant v. Blazer ( alleges violated Truth in Lending Act, files a counterclaim stating that did not pay the debt Court says it is a compulsory counterclaim. Says it arises out of the same set of operative facts. 1. Sets 4 alternate tests for same transaction or occurrence: a. (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? b. (2) Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule? c. (3) Will substantially the same evidence support or refute the s claim as well as s claim? d. (4) Is there any logical relation between the claim and counterclaim? [ majority rule] i. A yes to any of these indicates that the claim is compulsory! ii. Great Lakes Rubber Corp. v. Herbert Cooper Co. (Page 747, notes case). (1st lawsuit unfair competition, in federal court because of alleged diversity. counterclaims an antitrust claim >> s claim la ter thrown out for lack of SMJ counterclaim is left, said there is federal jurisdiction because of antitrust claim. Then, refilled antitrust claim against >> files it as a counterclaim. Court allows it because its compulsory) 1. These claims arise out of original claim & dont involve 3rd parties where there is no jurisdiction b. If you dont bring a compulsory counterclaim now, you cannot bring it later! (Use it or lose it!) c. Compulsory counterclaims allow claims into a court which may not otherwise be appropriate (ie: Torts in Federal court) This is called supplemental jurisdiction 15

2. Even if it does not arise out of the same transaction, it MAY still be brought as a counterclaim a. RULE 13(b) b. Note: Rule 18 would not make any sense without Rule 13(b)

c. Joinder of PARTIES
i. Introduction: 1. Basic joinder of parties cases: a. 1 , multiple s b. Multiple s, one c. sues , 1 sues 2 d. sues 1, 1 joins 2 and counterclaims ii. By s 1. Rule 20(a)(1): Rule for joining s: a. Need Cause Of Action to arise out of the same transaction or assert right to relief jointly (unlike joinder of claims) b. Any question of law or fact common to all s arise in the action i. Mosley v. GM (s suing for discriminatory employment, does not want joinder >> going to say it does not satisfy Rule 20(a)(1). Joinder is okay here >> its a POLICY of discrimination they were working at different plans, but its a COMPANYWIDE transaction. Uses logically related test). 2. If parties join claims and it is not permitted, they may be sanctioned >> Rule 11(b)(2) & Rule 11(c). 3. Rule 21: Court says you should bring a party in 4. Rule 42: 2 separate suits are brought, then court consolidates it. iii. By s 1. Rule 20(a)(2): Same standard as joining s a. Price v. CTB (1 , 2 s suing builder >> chicken coop case. Builder sues nail manufacturer in an indemnification suit idea of derivative liability >> if Im guilty, so is he. Court says its okay). 2. How do we know if IMPLEADER is appropriate? a. Rule 14: 3rd party practice i. (a)(1): A party may be liable to it for all or part of the claim against it. 1. Judge determines if the impleader is okay >> look at case law!! ii. (2)(c): who is brought in under the impleader can brine a defense to that the original (a.k.a. the third party ) may have against >> like statute of limitations 1. Why allow this? Because its derivative liability! Plenty of incentive for 2 to see 1 win the case and lose. 3. What are other ways to get rid of impleader? a. Court can use its discretion [usually for issues of efficiency/complexity] b. 1 wins in suit against iv. Remember, joinder is just one part of a multifaceted question!! You still need personal jurisdiction, etc!!!!

i. Once you have property joined a party or claim, the next question is whether there is jurisdiction to do so ii. When is there supplemental jurisdiction over a claim? 1. 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. 28 USC 1367 i. (a) Authority for supplemental jurisdiction >> its case or controversy. 1. Joinders standards of transaction or occurrence are more narrow! Joinders rules more narrow than supplemental jurisdiction ii. (b) Diversity exception >> even if claims are the same part of case/controversy, if it destroys diversity, no supplemental jurisdiction. 1. Amount in controversy NOT needed for supplemental jurisdiction (but it still needs to arise from the same case or controversy) a. Diversity is to avoid court bias, amount in controversy was really an efficiency matter, so here it is okay. iii. (c) Discretionary factors 1. The claim raises a novel or complex issue of state law 2. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction 3. The district court has dismissed all claims over which it has original jurisdiction 4. Exceptional circumstances, there are other compelling reasons for declining jurisdiction b. In Re Ameriquest ( suing bank for overstating mortgage, 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. We need supplemental jurisdiction for these claims >> were in federal court because of federal question. Court says that there is supplemental jurisdiction in order to determine if mortgage was too high, we need to determine whether the appraisal was too high >> common operative fact. c. Szendrey-Ramous v. First Bancorp ( fired for reporting employers illegal conduct in PR court. Sues under Title VII and under state PR law. Court says no supplemental jurisdiction first it must determine whether the PR state claims are part of the same case/controversy, then look to see if there is a diversity issue. There is none, so then looks at discretionary factors. Court declines to extend supplementary jurisdiction under the discretionary factors! There are novel/complex issues of law and state claim predominates.) i. Note: could bring both Title VII and state claim in state court because of states general jurisdiction. 2. If we have a COMPULSORY COUNTERCLAIM, then there will be supplemental jurisdiction a. You have to file a compulsory counterclaim or lose it, and it occurs in the same transaction or occurrence. If we have a mandatory claim, then it must have supplemental jurisdiction! b. If court dismisses it using discretion, you can bring it elsewhere! 16

i. Introduction 1. Usually s choice of forum gets a presumption, but s have power to second guess s who choose a state court that could have been brought in a federal court. a. Note: s autonomy/choice a theme in civil procedure? 2. can move it >> it is NOT for ! cannot remove to federal court! 3. Summary of the process: a. Removal occurs from state court to federal court by the when the federal court has original jurisdiction of the claim. 1441 b. Removal does NOT require permission (does not need to file a motion), rather just gives notice that its happening. 1446 c. If the is unhappy with removal they can motion to bring it back. this decision is NOT appealable. 1447 ii. When can a case be removed? 1. If a case could have been brought into FEDERAL court, and didnt bring it there, the can move it! a. 1441: If it could have been in federal court in the first place, it can be removed by there. i. We look at the well-plead complaint for removal. 1. If has a state claim, then has a federal counterclaim and say that then it is okay for federal court, we take away s autonomy! 2. If a case can be heard in federal court because of diversity, when does diversity need to exist? a. Diversity must exist in the STATE court case both when the case was filed and at the time of removal. b. Therefore, if a adds another nondiverse party after the complaint was filed but before removal, removal is impossible. Simi larly, a cannot remove just because the court dismisses the claims of all nondiverse parties! i. Two exceptions: 1. This does not apply to POSTFILING ACTS BY A THAT CREATE DIVERSITY >> for example, if voluntarily dismisses his claims against all nondiverse s in the state court action, the case can be removed if it meets the other requirements for removal! 2. If in a case in which the parties are not diverse is improperly removed but the district court fails to remand, any judgment rendered by the district court is valid provided that diversity DID exist at the time the judgment was rendered. a. Caterpillar v. Lewis (Supreme Court, 1996 KY state court, inured while using s bulldozer. No completely diversity, has to be in state court. Then later another joins settles with the first , so now theres only one , and diversity. So removed to federal court. District Court did not remand case to state court. There is no constitutional issue here, just a statutory problem >> the Constitution does not require complete diversity, Strawbridge does! b. Capron v. Van Noorden (Page 218, note 3). Court dismissed the case because there was never SMJ! improperly evoked diversity jurisdiction, you cannot waive SMJ. c. Citizenship is determined at the time of filing! i. Sidah (see above the Greek citizen in MD case). c. ALL s must agree to remove 3. 1445: Forbids removal in certain categories of cases, even if the requirements of 1441 are satisfied . 4. The case must be removed as a whole 5. What if the case is removed to federal court, but its the wrong venue? a. For removal purposes, we do not look at venue >> venue does not matter for removal. iii. How do we remove? 1. 1446: File notice of removal in states district court, pursuant to Rule 11 [sanctions, need good reasons], containing a statemen t for grounds of removal. Then notify the other party. a. Then its done! Youre in federal court b. BUT, can object to removal >> case can get REMANDED to state court. i. If it is remanded to state court, cannot object >> 1447(d) stays in state court! 2. See page 213, notes 1 & 2 for hypos, 3/10 & 3/11 notes for answers

VII. Former Adjudication/ Claim & Issue Preclusion (Civil Double Jeopardy) a. Introduction
i. Two parts of former adjudication: 1. Claim preclusion a. A.k.a res judicata or estoppel by judgment b. Claim preclusion forbids a party from litigating a claim that was, or could and should have been raised, in former litigation. c. Policy reasons: i. Efficiency ii. Consistency 2. Issue preclusion a. A.k.a. collateral estoppel or estoppel by verdict b. Issue preclusion comes into play when a claim is not barred from subsequent litigation, but some issue involved in that claim that was actually previously litigated. ii. Claim/issue preclusion came before the rule book so must is taken care of by common law, even though Rule 18 says may b. CLAIM preclusion >> claim preclusion is COMMON law i. For Claim Preclusion to exist the following 4 thing MUST have happened: 1. Claim/cause of action is the same in 1st and 2nd suit a. Narrow test >> Same core of operative facts (leads to less claim preclusion) b. Broad test >> Suits arise out of the same transaction (leads to more claim preclusion). Majority rule. 17

i. Frier v. City of Vandalia ( illegally parked, got car towed. Sued city for replevin, wants the cars back. State court ruled for . Then filed in federal court, alleging violation of DP.) 1. First suit in state court, 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, look at the underlying law the court is applying [substantive law]. Here, the applicable law leads to claim preclusion!! Follows broad test ii. Rush v. City of Maple Heights ( on motorcycle, hits pothole and is injured. First suit sues city for negligence for bike repairs, gets money. Then in a second suit sues for personal injuries. Claim is precluded here. Vasu v. Kohlers said that damage to personal property is not the same as damage to self but the court overrules that and says that here, should have brought her personal injury claims in the first suit. Said that where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single of cause of action arises.) 1. Note: might argue that this isnt fair as she didnt get her day in court for her personal injuries. BUT, court says no, you did have a chance in the first suit you brought for property damage its all about judicial efficiency >> THEME? GETTING THE TRUTH v. JUDICIAL EFFICIENCY? iii. Illinois Central Gulf Railroad v. Parks (s collide with train, injured, sued in state court. Wife sued for personal injuries, husband sued a derivative suit for loss of consortium >> husband got nothing but wife recovered. Then, in second suit, husband sued RR for his own injuries. Court used narrow test >> evidence in suit one is that his loss of consortium derived from wifes injuries. Evidenc e in suit 2 is that he had a personal injury, so no claim preclusion). Note though that the broad test probably would have precluded the claim because the accident is the same transaction.) c. Restatement standard 24 (page 674): i. Factors related in time/space/origin/motivation ii. Do the facts create convenient trial unit iii. Whether treatment as a unit conforms to the parties expectations/business understands or usage. d. If a cannot be brought in the first place, no preclusion even if the elements are met 2. Final judgment a. Settlement is considered a FINAL JUDGMENT! b. Appeal In most states appeals are considered final judgments unless the appeal vacates the 1st decision. 3. On the merits a. RULE 41(b): Anything operates as an adjudication on the merits, EXCEPT: i. Lack of jurisdiction [SMJ and personal jurisdiction]; ii. Improper venue; iii. Failure to join under Rule 19 1. If suit is dismissed because of lack of jurisdiction, NO claim preclusion because its NOT an adjudication on the merits! b. Gargallo v. Merrill Lynch (Gargallo owed Merrill $, ML sued Gargallo in state court Gargallo filed counterclaim alleging that ML violated federal laws. Gargallo doesnt comply with MLs discovery requests court ordered him to but he still doesnt so court dismisses the counterclaim with prejudice. Gargallo then brings the claim to federal court >> to preclude the claim, were supposed to look at the law of the first court, which here was state court that state says that there is no claim preclusion it was NOT decided on the merits!) i. Note: ML, the , could have removed the counterclaim! In the counterclaim, ML is the ! c. Most courts: If judgment is based on breaching the courts order, then its judgment is on the merits. 4. Parties are the same a. Gargallo v. Merrill Lynch (See above). In the counterclaim that Gargallo filed in the STATE court, Gargallo is and ML is -- and in the federal court when Gargallo files suit, he is and ML is , so there are the same parties!) ii. RULE 60(b)(5): If court makes mistake saying its precluded, its not.

c. ISSUE preclusion
i. When is an ISSUE precluded? 1. Same issue in case 1 as in case 2 a. Rush (see above). Issue in both cases was s negligence. b. Issue here arises when two different standards arise. i. Example: OJ Simpson case >> civil suit was NOT precluded by criminal suit. Why? Burden of proof is MUCH higher in criminal court (beyond a reasonable doubt vs. preponderance of the evidence). 1. If OJ was guilty in criminal court, it would carry over to civil court because there it was a lower burden. 2. Issue is actually litigated and determined a. Illinois Central Gulf Railroad v. Parks (see above). Because there was no claim preclusion, the will try to get issue preclusion. BUT, here, the is trying to say that the husband was contributorily negligent. This may be important in the issue preclusion analysis because in suit 1, maybe husband got nothing because he was contributorily negligent! If so, then the issue is precluded. BUT, it could also be because loss of consortium wasnt really here! Regarding these two options, the court says that we dont know which is true, so there is NO issue preclusion! We dont know if the issue was actually litigated or determined! This is what this requirement means! i. Why is there such a high standard for this requirement? 1. Due Process! We dont know if had full and fair opportunity to be heard! b. Default judgment >> NOT actually litigated or determined because the merits are NOT judged upon yet. 3. Final judgment a. Same as claim preclusion 4. Decision on issue is necessary to judgment i. For example: 1st Suit 2nd Suit A sues B B sues A - Jury finds As negligence was > 0 - Bs negligence = no issue preclusion b/c his negligence wasnt - Jury finds Bs negligence was > 0 necessary to decide the case b/c it was As negligence that decided - A loses b/c in this state contributory negligence is a the case 18

complete bar to recovery.

- As negligence = yes issue preclusion b/c his negligence was necessary to decide the 1st case.

5. Should there be the same parties/do the parties have to be the same? a. Old rule: 3rd parties could not assert issue preclusion b. New rule: A non-party (to the 1st case) can assert issue preclusion (both offensive and defensive) against the losing party. Neither can be used against a winning party. c. Parklane Hosiery v. Shore ( alleges sent false proxy statements to shareholders >> federal question because its dealing with SEC. SEC wins in lower court. Shareholders then sue >> suit 2. will say it is not the same parties so no issue preclusion. Issue pre cluded here. Court said that this could have joined in the first action, and had every incentive to litigate.) Note though, that s could not have joined in first suit because it was SEC action. i. Defensive issue preclusion: A sues B, B was drunk, A wins. Then B sues C, C says issue preclusion, you were contributorily negligent. 1. Examples of where 3rd party enters and same party requirement is NOT needed to preclude the issue. ii. Offensive issue preclusion: C sues B, C trying to use Bs drunkenness to win. 1. Why wouldnt we want to allow offensive issue preclusion? a. Increases litigation b. Party has incentive to wait not join the action just wait for suit c. Unfair, because what if all parties keep suing one by one and they lose, and on the 25 th , the wins the 26th can use offensive preclusion and win >> not fair to s 1 through 24. d. Parties do NOT have to stay the same for issue preclusion as long as it is not unfair. i. Examples of when it is unfair: 1. 3rd party just waits for the suit 2. If party had incentive to litigate. - 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, analyze both. 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. o When dealing with counterclaims, recall that in most cases you will apply Rule 13 rather than the more complicated common law compulsory counterclaim rule. As long as there was an answer filed in the first case, Rule 13 trumps. When dealing with issue preclusion, first identify all the issues that could logically arise in each of the two cases. Second, identify which issues are relevant to both cases. You should discuss full faith and credit in your answer whenever the two courts are in different jurisdictions. Although it may be obvious that the second court has to enforce the first judgment, include this discussion. o Even if the facts cry out for a different result, recall that a state cannot refuse to enforce another states judgment because it disagrees with the underlying claim.

VIII. Erie Doctrine a. What We Really Need to Know:

i. ii. When in Federal Court sitting in diversity the court applies state substantive law and federal procedural law Case History: Swift v. Tyson (1841) said that when in federal court based on diversity the judge need only listen to state statutes under 28 USC 1652, not common law, thus when no state statute exists judge should apply the best law (judges choice) - What was Swift trying to do? Prevent forum shopping and avoid inconsistencies by making great law - What did Swift actually do? Encourage forum shopping and caused huge inconsistencies in rulings. Erie RR v. Tonpkins (1938) reversed Swift and said that Federal courts sitting in diversity must use state statutes and state common law. Rules of Decision Act (USC 28 1652) applies to statutes and common law. - What is the difference between procedural & substantive law? Remember the paper color hypo? Thats it! - 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. v. York (1945) applied the outcome-determinative test to decide procedure v. substance. If the outcome would change if Federal law was used over state law then its substantive (and vice-versa). York said if its outcome-determinative use state law. Byrd v. Blue Ridge (1958) brought up the question of who decides if Byrd was a statutory employee, judge or jury? Outcome-determinative doesnt 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. Hanna v. Plumer (1965) A federal court sitting in diversity was unsure whether to use state (personal service) or FRCP (left w/ adult) rules of service. Though the issue is outcome-determinative the court looked back to the purposes behind Erie: preventing forum shopping and inequitable administration of laws. 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. Introduction
i. The whole idea behind Erie is which law to apply in FEDERAL COURT [on a DIVERSITY state claim] 19

1. Federal question cases will just apply federal law. ii. In Swift v. Tyson, there was a case in federal court based on diversity. The Judge said that the court did not have to apply the state law. 1. Rules of Decision Act >> Now 1652 a. 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, then the federal court must follow it. But, here there was no such statute, so the judge just did want he wanted to researched al the laws to figure out what the best law is.

c. What laws must the FEDERAL court apply when ruling in a DIVERSITY case?
i. We must apply STATE common law! 1. Erie Railraod v. Tompkins ( hit by train, issue of which law to use >> sued in SDNY, but it happened in PA.) Overrules Swift! Said Swift presented several issues: a. States werent influenced by the federal law, so Swifts idea of a federal general law was NOT working. b. Forum shopping >> Brown & Yellow Taxi Cab >> reincorporated in TN to create diversity, get in federal court to evoke federal general law because the states law was unfavorable >> example of forum shopping c. Non-uniformity no uniformity in what was going on d. Unconstitutional Congress does not have constitutional power to declare SUBSTANTIVE law in the states 2. There is no federal common law!

d. What if state and federal RULES conflict? Do you use state or federal PROCEDURAL rules?
i. A federal court should be allowed to set its own PROCEDURAL rules [but NOT substantive] ii. What if they have different statute of limitations? Is SOL procedural or substantive? 1. Instead of procedural v. substantive, look to see if it is OUTCOME DETERMINATIVE. a. Guaranty Trust Co. v. York ( sued a bond trustee in federal diversity action, alleging misrepresentation and breach of trust. NY law applies here its in federal court. The state SOL says its too late, but federal SOL says its okay.) The Court says its not procedural v. substantive, but look to see if it is outcome determinative! Here, it is, so use federal SOL! b. Byrd v. Blue Ridge Rural Electric Cooperative (construction worker was hurt on job, sued in federal court because of diversity. It has to be determined whether or not hes a statutory employee if he is, all he can get is workers compensation. State says that judge determines if is statutory, but federal law says the jury does. So the question is whether judge/jury is outcome determinative. We dont know, so then we look to state law [we want to use state law]. But we have a countervailing federal interest to hold the trial by jury >> protect 7th Amendment. Court says to use federal law here.) If the state law is bound up with the rights of the parties, then use state law! Here, it wasnt. i. Byrd analysis: 1. Is it outcome determinative? 2. Is state law bound up with rights and interests of the parties? 3. Countervailing federal interests? 2. 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, page 89, says that this is a new test). a. Hanna v. Plumer (Personal injuries case, in federal court because of diversity. Rule 4 said you can leave service with someone who is of suitable age, state law says no, you need personal service. SOL expires under the state. This is outcome determinative! Court says we are trying to protect from forum shopping, but there isnt forum shopping here no one is going to forum shop proper service. Also, its not really unfair >> so the two concerns of Erie arent really at play here.) Court says use federal law. Here, the SOL/service is NOT substantive, so follow fed >> emphasis again on substantive v. procedure b. Enabling Act >> 2072 i. (a) Supreme Court has power to prescribe rules of practice and procedure. ii. (b) But they cant interfere with state substantive rights. - Exam Tips Spotting an Erie issue: o Erie is an issue only in federal court. 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. o One clue for spotting an Erie issue is when the question involves a suit in federal court, but for some reason, specifies what the state law rule is on a particular matter. o If a problem gives you a state law but there is no corresponding federal rule that you can think of, there is still an Erie problem. In this case, the real issue is whether the federal court must apply the state law. Beware of the false conflict: o Once you have found an Erie issue, take a second look at the state and federal rules on the subject. Make sure the rules actually conflict. o If the application of a state/federal rule does NOT make a difference, there is no conflict, and an Erie analysis is technically unnecessary. However, unless the case falls squarely within one of the Courts earlier decisions or the lack of any conflict is absolutely clear, be very hesitant before basing your entire answer on a finding of no conflict. Federal rules crafted under the Rules Enabling Act [REA]: o If the case involves a FRCP or other rule enacted under the REA, 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, ask 20

yourself whether the rule is concerned with what goes on during the litigation or what when on outside the litigation. Then consider the impact of the rule if it changes legal parameters of the claim or defense, or makes it significantly easier for one party to win, the federal rule is invalid.

IX. Pleading a. Introduction

i. There are 3 themes at odds in the nuts and bolts portion of civil procedure: 1. Speed v. Quality 2. How a lawsuit should be managed the judge or the parties? 3. Purpose of litigation find out the truth v. dispute settlement. ii. How do we begin a suit? 1. It starts with a DISPUTE 2. Get dispute in writing. a. Before, it was a common law writ >> very formalistic b. Changed to code pleading but you couldnt plead an alternative! [i.e., could only prove breach of contract, not breach of contract and something else.] c. 1938 the Rules were promulgated, now we have RULE PLEADING! iii. The COMPLAINT memorializes the complaint 1. Written by , given to and the court anyone who wants to see it can access it. 2. The question then is how much do we put into the complaint? iv. For pleading purposes, a counterclaim is the same as a complaint!

b. How much we need to put into the complaint?

i. RULE 8(a): Tells us what must be in the complaint 3 elements: 1. Jurisdictional statement 2. Short and plain statement of claim a. Rule 10(b) allows you to incorporate paragraphs b. Rule 12(b)(6) motion >> attacks sufficiency of complaint claims that you have no short and plain statement even if everything claimed was true, no relief granted at law. i. Haddle v. Garrison (Supreme Court) (, an at will employee, employer fired him to prevent testifying against them. sues employer, issue is if there is a claim on which relief can be granted. claiming that short and plain statement requirement is not satisfied you havent stated a claim because at will employee doesnt have the same rights as regular employee a 12(b)(6) motion. Supreme Court says that even if is at will employee, he can be injured, its sufficient for Rule 8(a)) 1. See page 340 for examples of each element: a. Jurisdictional statement is 5 b. Short and plain statement of claim is 17 c. Relief sought is 21,22,23 c. Heightened pleading standards >> s need to plead enough facts to state a claim to relief that is PLAUSIBLE on its face [not just conceivable] i. Conley v. Gibson (said it cannot appear beyond doubt no set of facts to prove relief.) ii. Bell Atlantic v. Twombly (Supreme Court, 2007) ( sued alleging anti-trust laws, infers that the companies agreed not to compete because they did not compete. BUT, it could have been possible that they didnt compete because it could have been in their best interest not to. Conley standard may allow these allegations but discovery needs to be next, which here will be complicated and expensive. s argue that Conley is too loose complaint will always go through unless factually impossible. Complicated discovery will render the court system inefficient this will hurt those with legitimate claims! So court retires the Conley standard!! New standard >> s need to plead enough facts to state a claim to relief that is PLAUSIBLE on its face! does NOT meet this here, so claim is dismissed). 1. Conleys NOTICE requirement survives! a. NOTICE PLEADING: [how much detail you need to provide] i. Fair notice of the claim and what it is ii. And the grounds on which it rests. 2. States use FACT PLEADING, which will require much more. 3. Federal government uses NOTICE PLEADING. 4. Note: Twombly is limited to anti-trust cases, but Iqbal (see below) expands it! iii. Iqbal (Supreme Court, 2009) [TWEN case] (Iqbal imprisoned, a post-9/11 detainee. Is abused, sues Attorney General, Josh Ashcroft, and FBI Director. claims that the policy of targeting Arab men is violation of the 1 st and 5th Amendments. He points to the fact that he was punched/kicked by guards, etc. BUT, bear facts are NOT enough now under Twombly. Its not enough here! He could have had other evidence like email/documentation, something more than This happened to me, and Im Arab, so thus it is the policy.) d. RULE 9: Imposes a higher standard of short and plain statement for certain issues: i. Fraud and mistake 1. To establish fraud, you need 3 elements: a. Intentional misrepresentation b. Reliance on misrepresentation c. Injury 2. When pleading fraud, need to specify: a. Time of alleged fraud b. Place of alleged fraud 21

c. Nature of alleged fraud i. Stradford v. Zurich Insurance Co. ( dentist sues insurance company he doesnt pay the payments but soon after its reinstated he claims flood/water damage and recovered $100K, then he revised claim and said there was $1M damages, insurance company says no so he sues. counterclaims alleging fraud. The court said that the fraud counterclaim was insufficient because it failed to specify the content of the allegedly fraudulent statement. Injury was it suffered $150,000 in damages, could be liable for $1M. Acted on reliance because it paid out on s claim, here, the time/nature of fraud was missing! i.e., that flood was a lie, t hat it was exaggerated, or that it happened outside of policy date/terms. So it does NOT meet the requirements of Rule 9(b)!) d. Why would there me more specificity required for fraud? [Policy] i. Fraud comes with an entitlement of punitive damages. ii. Damaging to reputation, public can see these court documents. ii. Conditions precedent iii. Official document or act iv. Judgment v. Time and Place vi. Special Damages vii. Admiralty or Maritime claim 3. Relief sought. ii. What is the difference between summary judgment and motion to dismiss [Rule 12(b)(6)]? 1. Rule 12(b)(6): If everything claimed was true, there is no relief at law. 2. Summary judgment: Involves the facts given the evidence outside the suit itself, there was no issue

c. Who has the burden of which elements?

i. has burden of proving affirmative defenses 1. Rule 8(c): Has a NON-EXHAUSTIVE list of affirmative defenses that must be pleaded in response. a. Jones v. Block (Supreme Court, 2007). ( sues in FEDERAL court a civil rights violation. There is a Prison Litigation Reform Act [PLRA] which says prisoners have to exhaust all prison remedies BEFORE bringing it into court. Issue is WHO has to show the court that the prisoner exhausted administrative remedies court says it is an AFFIRMATIVE defense so has to bring it up, not . Court says that there is strong evidence that the usual practice of Rule 8(c) should be followed.)

d. What are the ethical limitations of pleading?

i. RULE 11 Sanctions 1. Walker v. Northwest Corp. ( alleging breach of fiduciary duty in the jurisdictional statement claims it can be heard in federal district court because of diversity. But, there is an issue of complete diversity [ Strawbridge]. tells he should withdraw claim because of diversity issues ignores it - moves to have case dismissed and for sanctions! Rule 11(b)(2) >> misrepresentation. There is no claim in the complaint that states that Strawbridge should be overruled. So it violates 11(b)(2). Lawyer pays the attorneys fees because its his fault, not the clients, but he later says that the sanction was too much. Court says it is NOT an abuse of discretion because it deters .) a. The purpose of Rule 11 is to act as a deterrent. b. Note: Why doesnt Haddle violate Rule 11? Hes questioning the law itself. There was some potential dispute there; here there is no dispute about diversity jurisdiction. 2. Christian v. Mattel ( created a cheerleading doll, sues for copyright infringement. But on s actual doll it has a copyright date that precedes s doll, so copyright infringement claim makes no sense. s contact tells , but doesnt listen throws the dolls. violated Rule 11(b)(3) no evidentiary support; it would have been easy to determine no copyright infringement. Attorney sanctioned appeals, and states that the OTHER things he did were NOT sanctionable under Rule 11(d) any bad behavior that occurred during discovery not sanctionable. responds by stating that 1927 applies if attorney causes excessive costs, then that attorney may be personally liable. So even if Rule 11 doesnt apply, 1927 will >> Court of Appeals remands back to District Court to speifcy what the $ sanctions are for.) 3. When a court says there has been questionable conduct, two questions arise: a. WHAT is the sanction going to be? b. WHO gets it? ii. WHO can be sanctioned? 1. RULE 11(c)(1): a. Attorney b. Law firm i. Wright v. Wilson, Elser, Moskowitz, Edelman & Dicker [Page 381, notes case] There is a SAFE HARBOR PROVISION >> 21 days to fix the bad thing you messed up; so its far to penalize law firm for a lawyers poor work. c. Parties i. 11(c)(5)(A): no monetary sanctions for a represented party violating 11(b)(2) so couldnt sanction in Walker iii. WHAT can be sanctioned? 1. Rule 11(c)(4): a. Includes non-monetary directives [i.e., CLEs, a letter of apology, community service] b. You give the COURT money because: i. Court wants it ii. If you give money to the other side, motions for Rule II will be incentivized. iv. Rule 11 only applies to PLEADINGS >> any bad behavior that occurred during discovery is NOT sanctionable 1. Christian v. Mattel (see above) v. 1927 >> if attorney causes excessive costs, then that attorney may be personally liable. 1. Christian v. Mattel (see above) e. Pleading The Answer >> Answer is the SECOND part of pleading! [first is the complaint] 22

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

i. Statutes of limitations issue even if we allow amendment, its futile because statute of limitations has already run. 2. Note: Here, the argues he made a good faith mistake he relied on 3 insurance companies that said the slide was his. Argues that it would be prejudicial/unfair >> again we see the theme of justice v. efficiency. 3. A party can amend its pleading during, or even after, trial, with the courts permission . [RULE 15(b)] iii. RELATION BACK OF AMENDMENTS [RULE 15(c)] 1. Relation back is important when a party wants to add new claims after the statute of limitations has expired. If the original pleading was timely, and the amended pleading adding the new claims relates back, the new claims will NOT be barred by the statute of limitations. 2. When do amendments relate back? a. RULE 15(c): i. (a) When the statute of limitations itself allows relation back [it expressly permits it] ii. (b) When it arose out of the same transaction/occurrence a. Moore v. Baker ( has surgery, ends up disabled, sues doctor. Sues for info rmed consent decides to amend complaint to add a negligence claim. BUT, the statute of limitations for the negligence claim ran out. So we look at Rule 15 to see if it relates back 15(c)(1)(B): Same conduct/occurrence. It is NOT the same transaction informed consent is BEFORE the surgery, negligence is DURING the surgery; and in the original complaint, said was reasonable. No relation back.) b. Bonerb v. Richard J. Caron Foundation ( is in rehab, injures himself during rehab, said is negligent. wants to amend and add counseling malpractice claim but the statute of limitations for that has run. Rule 15(c)(1)(B) court says that it is the same transaction. All of this activity falls under the umbrella of counseling.) i. When determining whether allowing the amendment is fair, see if the original claim puts on notice. If 1st complaint has a legal relation to the 2nd complaint, then it puts on notice of the 2nd claim! ii. was NOT on notice in Moore >> original complaint was more exotic than the 2nd, so probably thought wouldnt bring the more common 2nd claim. The opposite happened in Bonerb. iii. 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, and in Bonerb the 1st case was about the basketball court, and the 2nd was about counseling. iv. 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. honesty/resolution of the issue? iii. (c) If it is all the same conduct/transaction/occurrence and you want to change the name/naming of the parties, it is okay if: 1. (i) the party you want to bring in knows or should have known it is the proper party; and 2. (ii) Knew/should have known that the action would have been brought but for the mistake - Exam Tips Be sure to keep the difference between pleadings and motions distinct in your mind. o Pleadings are the general documents that set out all the parties claims and most of their defenses. o Motions are more specific requests to the court. They typically deal with procedural requests. Look out for questions involving the heightened pleading standards set out in Rule 9, such as claims for fraud, mistake, and special damages. When dealing with Rule 11 sanctions, do not forget the 21-day safe-harbor provision, during which the party may withdraw the offending presentation. Recall that any monetary penalties for Rule 11 violations are paid to the court, not to the other party.

X. DISCOVERY [RULE 26] a. Introduction:

i. Most lawsuits end at the pretrial stage between pleading and trial ii. Discovery ends lawsuits for two reasons: 1. It produces information about the merits of the lawsuit and allows parties to make informed judgments about the strength of their and their opponents position. 2. Discovery is expensive and time-consuming, so it might enable one of the parties to wear the other down, or both sides to wear each other down. iii. In notice pleading [Conley, see above in pleading], the party gave general notice of what the complaint is about. This is enough in the initial stages. 1. BUT, in discovery, all the details/information come out. iv. The purpose of discovery is to ensure that there are no surprises at trial.

b. There are TWO phases of discovery:

i. INITIAL DISCLOSURE [RULE 26(a)(1)] 1. Required disclosure! Not requested, given automatically ii. GENERAL DISCOVERY [RULE 26(b)] 1. Needs to be requested

c. What is discoverable?
i. Any matter that is: 1. Not privileged; and 2. Relevant to any partys claim or defense a. RULE 26(b)(1) ii. A matter may be discoverable even if it is not admissible in trial. [Rules of evidence govern what is and what is not admissible] 24

1. If you cant bring it to trial, why can it be discoverable? a. It may lead to other evidence that is admissible! b. Rules of discovery are greater than rules of evidence!! iii. [Note: What about metadata? See Aguilar v. Immigration & Customs Enforcement Division on page 88 of my notes; not discussed in class].

d. What is deemed as relevant to any partys claim or defense? [and thereby satisfying Rule 26(b)(1)]
i. Information is relevant as long as it may help a party prepare for his case. It need not necessarily be evidence that the party uses at trial. [Definition provided by Emanuel on page 154] 1. Davis v. Precoat Metals ( suing for Title VII violation discrimination based on race and national origin created a hostile working environment. s want documents regarding others who have complained of race discrimination [not gender, etc.] arguing that it is not relevant >> its not s complaint, its someone elses. Court says it is relevant is arguing that there is a hostile working environment because of race; if others of the same race say there is a hostile working environment than s claim is more likely, and s discovery requ est is narrowly tailored to race. It could be used to demonstrate that s alleged basis for taking action against was a mere pretext). a. Note: here might strategically want the evidence because it could create a buzz about s public image; and may also want to create a buzz of an environment full of unhappy employees. 2. Chavez [mentioned in Davis; page 418]: wanted information regarding employees at another plant it was not granted, it was too broad. 3. Sidari [mentioned in Davis; page 418]: s wanted information outside of race/national origin, so it was too broad and not granted. 4. Steffan v. Cheney ( discharged from the navy because he was openly gay. He resigned because he was going to get fired. Sues, says that the navys policy of discharging people based on their sexual status was unconstitutional. s wanted information from as to whether or not he engaged in homosexual conduct. s state that (1) they could have fired for his conduct anyway and (2) s conduct will prove his status. BUT, says that (1) conduct is irrelevant because whats being challenged here is s ability to fire based on STATUS, not conduct, and (2) already admitted his status so we dont need conduct to prove status. s discovery request not granted). a. Hypo: A & B get into a car accident, A sues for negligence, wants Bs bank account information to see if she has money. Not relev ant! Nothing to do with negligence, it is not relevant to the claim or defense! b. For more hypos, see page 420, note 4, and 4/5 notes for answers.

e. Spoliation
i. Spoliation refers to: 1. The destruction OR material alternation of evidence; or 2. The failure to preserve property for anothers use as evidence 3. In pending OR reasonably foreseeable litigation. a. Silvestri v. General Motors Corporation ( drunk driving, got into accident, sues stating the airbag did not property deploy so he suffered aggravated injuries. did not allow to inspect the car, s lawyer had 2 experts inspect it who said they should get to look at it. files suit 3 years later, did not give chance to inspect the car and did NOT preserve it. was denied the opportunity to take physical measurements to see if the airbag was the real issue [crush model], and had head injury but couldnt determine if it resulted from the airbag or from the accident. It was not fair, so dismisses the case). i. Why was it fair to dismiss the case? 1. Extraordinary prejudice to 2. Preserves court systems integrity. ii. 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.

f. What are the TYPES of discovery?

i. INTERROGATORIES [RULE 33] 1. Rule 33(a)(2): Scope of interrogatories! 2. Rule 33(a)(1): a. Only applies to parties! i. Note: If you want to interrogate a non-party, you can always: 1. Join them as parties 2. Subpoena them under Rule 45(a)(1) >> commands a party to testify, issued by the court! a. If it is ordered, then the party can be forced to do all the listed things. b. Need courts permission if you are asking more than 25 questions. i. Sub-questions [i.e., 1(a), 1(b)] each count as one question; so cant get around 25 question maximum. 1. See page 430, notes 1 and 4 for hypos, and 4/5 notes for answers. 3. What if serves a contention seeking interrogatory on ? [RULE 33(a)(2)] a. Example: and get into an accident; suing on negligence; asking what law did I violate and what about my driving was reckless in an interrogatory. Does have to answer? i. has to answer what rule did I violate. ii. must also answer what about the s driving was reckless. 1. It might look like interpretation of law/mental impressions 2. BUT, 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. Here we are asking for (1) interpretation of law; and (2) contentions of fact! So must be answered! b. Contentions of fact are NOT the same as mental impressions. 4. Interrogatories will sometimes have document requests within them a. Example: Did you take Xs testimony? Produce copies of Xs testimony. (See Hickman v. Taylor, below, for an example). 25

5. Interrogatories are usually much cheaper a. Disadvantages: i. Usually answered by the lawyer so are well-crafted answers ii. Cant ask follow-up questions for evasive answers. iii. Limited to 25 questions; need courts permission for more. iv. Can only be sent to a party [non-party witnesses can be deposed] ii. DEPOSITIONS [RULE 30] 1. A deposition is an oral examination of a witness under oath recorded by court stenographers; can and are usually introduced during trial. 2. Who may be disposed? a. May be used against nonparties [the person who answers the question is called the deponent] b. Experts can be deposed [see next section on expert witnesses] RULE 26(b)(4) 3. What are the limits on depositions? a. Without seeking permission, the total number of depositions taken by each side may NOT exceed 10 b. They cannot last longer than 7 hours c. 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. How are they initiated? a. A party initiates a deposition simply by giving reasonable notice to all other parties. The notice specifies the time and location of the deposition, as well as the name of the deponent. 5. What is the procedure of a deposition? a. A deposition may be held anywhere, although it is usually conducted in the offices of an attorney representing a party. i. It may be conducted by remote means, which includes telephone or video conference. [RULE 30(b)(4)] b. Unless the parties stipulate otherwise [which they usually do], the deposition is conducted before an officer of the court. c. The deponent is placed under oath. d. The party requesting the deposition then asks questions of the deponent. Other parties may cross-examine the deponent. e. The questions and answers are transcribed by a court reporter OR by electronic means. f. The deponent or any party may object to the content/form of a question. i. Objections must be made concisely and in a nonargumentative and nonsuggestive manner. g. 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, embarrasses, or oppresses the deponent or a party. [see section on limits on discovery] h. Rule 30(e): If the deponent or a party requests, they may review the transcript. i. If they want to make any changes, then may sign a statement indicating the requested changes and reason for them. 6. What if court allows deposition, and then sees its transcript and says it is irrelevant? a. It may seal them. 7. Do deponents HAVE to answer the questions? a. Yes! You MUST answer [RULE 30(c)(2)] i. If you object to a question to id after. b. Exceptions [when you DONT have to answer]: i. To preserve a privilege ii. To enforce a limitation ordered by the court iii. To present a motion under RULE 30(d)(3) >> that rule concerns the conduct of the deposition. 8. Advantages: a. Lawyer can ask a series of questions that forces witness to take a position on the matters at issue b. Can follow up with further questions if the witness is evasive, or if the witness testimony opens up new avenues of inquiry. c. Not limited to 25 questions [like interrogatories] 9. Disadvantages: a. Very expensive b. Rules place limits on depositions [see above] iii. DOCUMENT DISCOVERY [RULE 34] 1. Production of all documents [including things like tapes, etc.] and ALL tangible things a. Can request things related to the incident i. See page 433, note 1 for hypos, 4/5 notes for answers. b. An issue with Rule 34 arises when trying to figure out who bears the cost of discovery. i. 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. 2. When is it available? a. Can only be used against parties even if the party is not in actual possession of the item, he must make it available for inspection if it is in the possession of someone under that partys control. i. You can use Rule 45 and subpoena non-parties requiring them to produce and permit inspection of tangible items. 3. What is the procedure? a. A party seeking inspection of tangible items under Rule 34 serves a request upon the party in possession or control of the argument i. The request must describe the items to be inspected and specify a reasonable time and place for the inspection to occur. b. The other party then files a response within 30 days, indicating whether the inspection will be allowed, or if applicable, any grounds for objection. iv. MENTAL/PHYSICAL EXAMINATIONS [RULE 35] 1. Makes it possible to force a party to submit to a physical or mental examination a. Unlike other discovery requests, a party seeking a physical and mental exam just show good cause and obtain a court order. 26

2. When is a physical or mental exam available? a. It may be ordered only for a party or person in custody or under the legal control of a party. b. Must show good cause movant must show that the information cannot be obtained by other means. 3. 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. ADMISSIONS [RULE 36] 1. What may be requested? a. A party may request anything within the scope of discovery, including opinions of fact or the application of law to fact. b. A party may also ask another party to confirm that a particular document is genuine. 2. What is the process? a. A party seeks an admission by serving a request on the other party. There is NO limit on the # of requests that may be served. b. RESPONSE: The party served with the request may i. Admit that the matter is true; ii. Deny the truth of the matter, IF the party can deny it in good faith; 1. A denial just fairly respond to the substance of the matter [ Rule 36(a)]. 2. If a party intends to deny only part of a statement, he must specify in detail which parts are admitted and which are denied. a. This is the same standard that applies to the answer to a complaint. iii. State in detailed reasons why the party cannot truthfully admit or deny the request; or iv. Object to the request. c. A party who does not deny a request to admit, or who sets forth an ineffective denial, is deemed to have admitted the matter requested. d. Admissions are NOT transferrable >> i.e., 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. 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; and issue preclusion has final adjudication. 3. Request for admissions share 4 characteristics with interrogatories: a. Usable only against parties b. In writing c. Relatively cheap d. Of limited use in most litigation. 4. Why have admissions? a. Gets things parties mutually admit to out on the table to save time.

g. Procedure of Discovery
i. What information is REQUIRED to be disclosed? a. Rule 26(a)(1)(A): Lists thing that the parties automatically have to disclose [ initial disclosure] i. (1)(A)(i): Name and contact information of person likely to have discoverable information; unless it is used to impeach [a.k.a. show that the party is lying] ii. (1)(A)(ii): A copy or description of documents that might have information; unless its used for impeachment. iii. (1)(A)(iii): Computation of damages how you reached figure of the amount of damages sought. iv. (1)(A)(iv): Insurance information 1. Insurance information may not be necessarily relevant, but its discoverable. Why? a. Efficiency! Discourages fruitless litigation. If does not have insurance, cant recover, so people probably wont bring suits. i. We see the theme of efficiency over truth here! v. All of this stuff is basic stuff >> even if they werent required, theyd be asked for anyway, so theyre required bec ause they save time! 1. Theme: Efficiency. vi. See page 433, note 1 for hypos, 4/5 notes for answers. ii. What is the SEQUENCE of discovery? Discovery typically begins shortly after the pleadings are filed and may continue until shortly before the trial. Usually occurs in a particular order [see the following bullet points for the order] 1. 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. a. If no settlement is reached, the parties are required to prepare a discovery plan for the case. i. Discovery plan: Covers the subjects on which discovery is to be had, the timing and form of mandatory disclosures and discovery, any agreement that the parties may reach that either limits discovery or relaxes limits prescribed by the rules, and any orders that the court should issue to facilitate the discovery process. b. Unless the parties agree or a court orders otherwise, a party mat NOT engage in formal discovery until AFTER the discovery conference! [RULE 26(d)(1)] 2. SCHEDULING: [RULE 16(b)] The court comes in after parties come up with the plan. They submit it to the court; court creates a schedule [Do X by this date, Y by this date]. a. (16)(b)(3): Basic gist of what schedule does schedules everything up to trial. iii. What if you SHOULD have disclosed the information but you dont? 1. Rule 37(c)(1): The information becomes NON-USABLE, AND you can be sanctioned.

h. Are EXPERT OPINIONS/TESTIMONIES discoverable? [RULE 26(a)(2), RULE 26(b)(4)]

i. Introduction: 1. Testifying experts v. Consulting experts (non-testifying) 2. Youre going to want to bring the good experts to trial, and not the bad ones you wont want to give the bad experts to the other side because theyd benefit from it, even if they may be speaking the truth/have relevant information. a. THEME: Adversary system v. truth-seeking system! 27


iii. iv.





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

- 7 Step Analysis to Consider when Dealing with Experts 1. What does the party want? Haskell: s mental condition Chiquita: State of ship 2. Subject? Haskell: Doctors files Chiquita: Experts report 3. Is it relevant? Haskell: Yes Chiquita: Yes 4. Is the person an expert? Haskell: Yes Chiquita: Yes 5. Plan to use at trial? Haskell: No Chiquita: No 6. Other means to get the information? Haskell: No Chiquita: Maybe [is the ship still in the same shape at the time of incident?] 7. Exceptional circumstances? Haskell: Yes Chiquita: No

i. Is E-DISCOVERY discoverable?
i. Yes 1. Aguilar v. Immigration & Customs Enforcement Division (Latino s claim that subjected them to unlawful searches of their homes in violation of the 4th amendment. Metadata is discoverable provided that it is relevant to the case.) a. 3 Types of Metadata: i. Substantive metadata reflects modifications to a document. ii. System metadata reflects information created by the use or by the organizations informatio n management system. 1. Most system metadata lacks evidentiary value because it is not relevant. 2. BUT, it is relevant if the authenticity of a document is questioned of ir establishing who received what information and when. iii. Embedded metadata consists of text, numbers, content, data, 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. 1. Is often crucial to understanding an electronic document. ii. Advantages/Disadvantages: [as identified by the Sedona conference)/ 1. 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. Disadvantages: Hard to redact, and requesting party mat not have the software necessary to open the document

j. In some situations What are the LIMITATIONS on discovery?

i. Introduction 1. In some situations, a court may limit discovery even of RELEVANT non-privileged information >> policy-based limitations. ii. Discovery cannot annoy, embarrass, oppress, or impose an undue burden or expense on a person/party 1. If so, a party may seek a PROTECTIVE ORDER a. RULE 26(c): Allows a court to enter a protective order limiting discovery when needed to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense. i. 26(c)(1): The means of getting a protective order ii. A protective order can forbid: 1. Discovery altogether [RULE 26(c)(1)(A)] 2. Limit the timing or scope of discovery, including barring discovery concerning certain subjects. [ RULE 26(c)(1)(D)] b. RULE 26(c)(1): Allows a party OR any person to try to get a protective order! i. Why would it allow a party to bring this if a non-partys annoyance/embarrassment/etc. is at issue? 1. More efficient A party already has a lawyer, discovery is many times sought from non-parties without lawyers, so it is more efficient to allow a party to do this. a. Example: Stalnaker v. Kmart (see below). Kmart is asking for the protective order even though is seeking to depose non-party individuals. 2. Unnecessary intrusions into private matters are common reasons for a protective order. a. Stalnaker v. Kmart Corp. ( claiming sexual harassment by another employee, is an employee of - created hostile environment. wants to depose 4 non-party female employees at the office. claims it is relevant because it establishes context of hostile working environment, argues that it is not relevant because the is not complaining about the 4 women, they are not a part of her case also because the 4 women engaged in voluntary sexual relations, so it is inconsistent with idea of hostile working environment. Issue because there is a privacy concern it may be relevant, but that may not be enough to override privacy concerns. The court ultimately says that the 4 womens relationship with the other employee is relevant, but limits it anything that does NOT have to deal with him is irrelevant. Limits the deposition to sexual relations with the other employee, to the extent that it shows that he tried to solicit/encourage/etc a sexual relationship. Also, it says it is potentially embarrassing, so says the information cannot be disclosed to anyone else.) i. Court here uses Rule 26(c)(1)(D) and 26(c)(1)(F) ii. Note: Strategically, why would want this? [aside from its relevance]. Creates bad employee morale, gets bad reputation, may lead others to bring suits. 29

iii. THEME? Balance between getting the information/truth v. privacy? iii. Work-Product [RULE 26(b)(3)] 1. Work Product Exception to Discovery: Covers documents and tangible things prepared in anticipation of litigation. a. These items may only be obtained upon a showing of need. i. Hickman v. Taylor (Supreme Court, 1947)(crew member died on tow boat, decedent suing. , the boat company, hires a lawyer lawyer interviews 3 survivors, has their written statements. Also interviews other witnesses orally, takes notes of these interviews . wants these written statements and lawyers notes of oral interviews. This is relevant info, but is it privileged? No no special relationships; attorney/client is not applicable here because the lawyer interviewed witnesses/survivors. Then, the discovery rules were simple and ordered that the lawyer disclose he doesnt and the Supreme Court gets around this by using policy. Says he does NOT have to disclose. Says that could have the survivor testimonies if theres a good reason why he cant get them otherwise like they are unavailable or it is too difficult to reach them. But that is not the case here. As for the oral statements, the court says that they are not discoverable under ordinary circumstances. Unlike written statements, these had the lawyers mental impressions. Also, if the lawyer handed them over, lawyer ends up being a fact witness relying on his remembrance/notes as to what is true). b. Purposes of the work product rule: i. Prevents one side from piggybacking on the work of another side. By encouraging each side to prepare its own case, the rule helps to ensure that the adversary system works as intended. ii. In the case of work prepared by attorneys, the rule helps to minimize the number of situations in which the attorney will be called as a witness. Testimony by a partys attorney is a particularly problematic issue in litigation. 1. Hickman v. Taylor (see above). 2. Note: We see a theme here court as an adversarial system v. court as a truth-seeking system. a. s attorney would not want to give the information because why should he do all the s work? would say that the point of system is to get the facts and truth out! It doesnt matter who did what >> adversarial system v. finding the truth! i. Note: If s argument were accepted, there would be no incentives for parties to put in a lot of work, 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. c. The Court has codified some of these principles in Hickman in the WORK PRODUCT RULE >> RULE 26(b)(3) i. Rule 26(b)(3)(A): Fact work product rule ii. Rule 26(b)(3)(B): Opinion work product rule 1. If you need to disclose facts under the fact work product rule, mental impressions must be protected [i.e., if you write notes on a transcript and the transcript is discoverable, then the notes must be redacted.] iii. Rule 26(b)(3)(C): Party statements 1. A party/person can get a copy of his/her own statement! a. [Its only fair that you get a copy of your own signed statement] 2. Privileged information is NOT discoverable. a. Privileged information: Based on relationships between the parties some relationships we may want to protect [like doctor/patient, attorney/client]. i. BUT, if you bring it into the suit, you waive the privilege! 1. Example: You cant say Dr. X says I have XYZ and then not allow opposing party to see information by saying its protected by the doctor/patient privilege. b. Attorneys own mental processes and notes are also privileged.

k. Ensuring COMPLIANCE with discovery

i. How do we ensure compliance in discovery? 1. SANCTIONS >> RULE 37 a. Rule 11 sanctions do NOT apply to discovery. 2. What does Rule 37 sanction? a. Failure to participate in discovery plan b. Make a discovery request/response/object to discovery without a proper basis c. Failure to attend a deposition by the requesting party [ requests deposition, then doesnt go]. d. Failure to attend deposition by the responding party e. Failure to respond to interrogatory f. Failure to respond to document request g. Failure to answer question deposition/interrogatory/document request h. Failure to obey a court order [i.e., motion to compel] i. Failure to disclose required disclosures without being asked j. Failure to admit what is later proved. i. Main idea: The worse the behavior, the worse the sanction. ii. NO sanctions for failure to admit to a physical/mental examination. 1. BUT, there may be other repercussions for example, attacks , and complains of back injury but doesnt allow a physical examination may imply that nothing is wrong with . 3. LIMITATIONS on discovery >> RULE 26 a. Court MUST limit discovery if: i. (i) The discovery sought is unreasonably cumulative/duplicative, or can be obtained from some other source that is more convenient, less expensive, or less burdensome; ii. (ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; iii. (iii)The burden or expense of the proposed discovery outweighs its likely benefit 1. RULE 26(b)(2)(C)(i)-(iii) a. Aguilar (see above) (Sought meta-data after e-discovery, if the court allowed it, it would be too much money, undue harassment.) 30


i. has three options in response to s complaint: 1. Answer 2. Ignore/do nothing 3. Motion (i.e., motion to dismiss).

b. What if does nothing? Leads to default judgment!

1. In default judgment, is essentially admitting to doing it it has that effect! 2. This is similar to Rule 8(b)(6) in the PLEADING stage >> if an allegation is NOT denied/properly answered, it is admitted. a. Default judgment is the same idea on a larger scale. 3. BUT, is NOT getting his day in court! a. If we only care about the truth, then we wouldnt like default judgment because it is NOT based on the merits. b. If we only care about the process, we like default judgment because it is efficient and tells others to follow the rules or face the consequences. i. In our system it is a BALANCE >> THEME!

c. DEFAULT JUDGMENTS >> RULE 55 (Before Trial, After Discovery)

i. What triggers a default judgment? >> RULE 55(a) 1. When a party against whom judgment for affirmative relief is sought has failed to: a. Plead; or b. Otherwise defend [i.e., a motion] i. Motions are NOT pleadings [see amending complaints!] 2. The clerk MUST enter default judgment. ii. When can enter the default judgment? >> RULE 12(a)(1)(A)(i) & (ii) 1. 20 days; or 2. 60 days if waives services iii. What if the 20 or 60 days pass? What does do? 1. tells clerk by affidavit or otherwise [RULE 55(a)] 2. The clerk then notes the entry of default on the docket. But this does NOT equal an actual judgment. a. What is the difference between entry of default and a default judgment? i. Entry of default: Just says didnt do anything ii. Default judgment: Can be enforced. iv. A clerk can give a default judgment, but ONLY when: [RULE 55(b)(1)] 1. s claim is for a SUM CERTAIN [i.e., a specific contract] or a sum that can be made certain by computation; a. Why this requirement? Dont want to give the clerk any discretion regarding the sum because by defaulting the is admitting the sum. b. Clerk is NOT adjudicating. 2. is NOT a minor or incompetent; 3. Default judgment entered against for not appearing a. Literally must do nothing. If has some informal contact with , clerk cant enter default judgment [i.e., emails saying I intend to defend myself, then does nothing]. v. If a clerk cant do it because one of the above requirements is NOT met, then the court can do it >> RULE 55(b)(2) 1. The court can conduct a hearing or make referrals when: [RULE 55(b)(2)] a. (A) Conducting an accounting; b. (B) Determining the amount of damages; i. can present evidence regarding the amount of damages. 1. My question: But what about the other hearings, could present evidence? If so, wouldnt that almost be like a trial on the merits? c. (C) Establishing the truth of any allegation by evidence; or i. If court doesnt believe this is weird because if the same exact situation had happened but there was a sum certain, the clerk could enter a default judgment and not look into the truthfulness of s allegations, even if they seemed shady d. (D) Investigating any other manner. vi. If a default judgment is entered against a , what can do? 1. RULE 55(c): The court can: a. Set aside an ENTRY OF DEFAULT for good cause; AND i. Only applies to cause of entry! b. Set aside a DEFAULT JUDGMENT under RULE 60(b) i. RULE 60(b): A court may relieve a party from a final judgment/order/proceeding for the following reasons: 1. (1) Mistake, inadvertence, surprise, or excusable neglect; a. This one comes up most frequently b. How might do nothing and it might be a mistake or excusable neglect? i. If out of state, agent of service didnt notify him ii. got really sick; couldnt show up iii. Improper service/notice 2. (2) Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 3. (3) Fraud, misrepresentation, or misconduct by an opposing party; 4. (4) The judgment is void; 31

5. (5) The judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 6. (6) Any other reason that justifies relief. ii. What is the timeframe for a Rule 60(b) motion? [RULE 60(c)] 1. Within a reasonable time 2. Or if it is for reasons (1), (2), or (3) above, then it must be made no more than one year after the entry of the judgment. c. Peralta v. Heights Medical Center (Supreme Court, 1988) (, Medical Center, is the guarantor of s debt. served after the 90 day required time frame imposed by state statute. does nothing after he gets notice, so default judgment entered. tries to get it enforced, and attaches the land gets notice of land seizing [you might NOT get notice of underlying suit but get notice of land seize, see Jones v. Floweres, above]. states that the notice was not okay, 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. The lower court agrees with . argues he would have done other things if he got notice, like settled with , sold his land for a better price, or impleaded the employee whose debt he was guaranteeing. Supreme Court reverses lower courts decision, says we need notice.) i. Why do we need notice? 1. Practical reasons -- could have done other things 2. Due process! Idealism of the system a. Hypo: What if state statute says that in order to set aside a default judgment, you need (1) a meritorious defense, or (2) some practical advantage? It is likely that the court would still not like it because of notice/due process. ii. 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 s complaint]. He could also have included the improper service as an affirmative defense in his answer [another option when responding to s complaint]. 1. RULE 12(h): If you dont include the affirmative defense in an answer OR file a motion, you waive the defenses listed in Rule 12(b)! iii. Note: This case demonstrates that courts, while prepared to enter into default judgments, greatly prefer to see the parites engage on the merits of the dispute 1. Theme: Truth-seeking system! Also, the lower court agrees with here >> choosing efficiency! But the Supreme Court overrules it! Chooses due process/truth-seeking! iv. Theme: Courts balancing truth seeking in an adversary system v. sending a message to others that they must comply with the rules. 1. RULE 60(b) is balancing: a. To see if s delay was willfull b. To see if is prejudiced by s delay c. To see if has a meritorious defense. 2. Is it a really big deal to 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. What if the attorney messes up and causes the default judgment? 1. is stuck with the default judgment, but can sue the attorney for malpractice. viii. Does NOT only apply to s 1. Default judgment applies to all parties against whom a claim is filed. 2. Thus a who fails to defend a counterclaim can have a default entered against her on the counterclaim.


i. Introduction 1. Involuntary dismissal: is NOT prosecuting his/her action in a timely fashion. 2. Involuntary dismissal is analogous to statute of limitations a. You have to timely bring the case [SOL] b. You have to timely prosecute [involuntary dismissal] 3. Why do we have SOL? a. Stale evidence b. People shouldnt live in fear of being sued. i. No SOL on murder because its so heinous. 4. You can have an involuntary dismissal within the statute of limitations -a. Example: SOL is 5 years, doesnt do anything for 3 years. 5. Involuntary dismissal does to a what a default judgment does to a -- it forces them to pursue the lawsuit to some resolution a. Theme: Court efficiency? ii. What triggers involuntary dismissal? [RULE 41(b)]: 1. If the fails to prosecute; OR 2. To comply with these rules or a court order, 3. A may move to dismiss the action or any claim against it. a. A failure to prosecute [a.k.a., a delay] triggers it! i. Default judgment: s delay; didnt respond in time ii. Involuntary dismissal: s delay; didnt prosecute in time. b. Like default judgment, the s attorney may be at fault, but the is stuck with the involuntary dismissal. BUT, is not lef t without recourse can sue the attorney for malpractice. iii. Is an involuntary dismissal an ADJUDICATION ON THE MERITS? [RULE 41(b)] 1. Yes, UNLESS the dismissal is for: a. Lack of jurisdiction b. Improper venue c. Failure to join a party under Rule 19 iv. Does a need to move for an involuntary dismissal? 32

1. No Court can enter involuntary dismissal on its own! a. Why allow the court to do so? i. Efficiency! Its burdening the docket; resource allocation [ theme!] v. What is the timeframe for an involuntary dismissal? 1. No bright line rule for how long must NOT act for in order to have suit involuntarily dismissed. a. Depends on the circumstances b. Court has discretion! 2. The longer the does nothing, the more likely it is that the court will issue an involuntary dismissal. a. Theme: Efficiency v. truth-seeking system.

e. VOLUNTARY DISMISSAL [RULE 41(a)] f. Introduction

1. Why might want to voluntary dismiss his own action? a. Need more time to get evidence b. Worried about sanctions i. Example: Mattel case s attorney should have voluntarily dismissed the case, there was no cause of action since it was impossible that infringed on s copyright the attorney was sanctioned. 2. If youre going to get sanctioned anyway, why voluntarily dismiss? a. Safe harbor period: Party has 20 days to remedy objectionable behavior; so could fix this before getting sanctioned i. Example: Mattel s attorney could have voluntarily dismissed within 20 days.

g. How can voluntarily dismiss?

1. Without a court order/the courts permission: [RULE 41(a)(1)(A)(i)-(ii)] a. can voluntarily dismiss WITHOUT a court order if: i. (i) It does so before the opposing party serves either an answer or a motion for summary judgment; or 1. Texaco v. Pennzoil (notes case, see page 97 of my notes) ( brings a case in DE against , moves for preliminary injunction, court denies it and uses language suggesting that would lose on the merits. So, before responds, voluntarily dismisses and re-files in TX. Later wins in TX >> the most expensive failure to answer.] ii. (ii) All parties agree to do so. 1. Usually results in a settlement agreement. 2. By a court order [RULE 41(a)(2)] a. Except as provided in Rule 41(a)(1) [see above], an action may be dismissed at the s request ONLY by a court order, on terms that the court considers proper. i. A court can use broad discretion when allowing a voluntarily dismissal 1. Theme: Is the court given broad discretion to promote efficiency? ii. A court enters only if does NOT voluntarily dismiss before answers/moves for summary judgment OR parties dont agree to do so. 1. Note: Perhaps we can compare this to when the clerk can(not) enter a default judgment court intervention is not always necessary/required.

h. If voluntarily dismisses, can he file the same suit again? [RULE 41(a)(1)(B)]
1. can voluntarily dismiss his case only once a. The first dismissal is without prejudice can refile it, provided that the statute of limitations doesnt expire. b. RULE 41(a)(1)(B): A dismissal is without prejudice UNLESS the notice or stipulation provides otherwise. i. Why would two parties agree to dismiss a case with prejudice? 1. Incorporation of dismissing with prejudice in the settlement agreement! This is an important bargaining tool for a. Example: While settling, the can say Ill voluntarily dismiss this case with prejudice if XYZ. If you dont want to do XYZ for me , then Ill dismiss the case without prejudice/wont voluntarily dismiss it at all. 2. What if wants to voluntarily dismiss to gather more evidence? a. It is unlikely that will agree to a dismissal for such purposes. c. Why allow to voluntarily dismiss once? i. Preserve idea of s autonomy 1. Theme? We also see this in venue/forum the s choice of forum is preferred. May also relate to the issue of who bears the cost of a voluntary dismissal [see below] initially chose time and place of suit and now has changed his mind, so should bear the co sts. ii. Accommodate unforeseen circumstances [i.e., death in the family, got sick] iii. Encourages settlement! 1. If can voluntarily dismiss once, then he doesnt feel like he must litigate because hell never get to do it again if he voluntarily dismisses so it may lead to settle. 2. If voluntarily dismisses his case a second time, it is an adjudication on the merits.

i. Who bears the COST if a case is voluntarily dismissed?

1. Many courts require that pays s attorney fees as a condition of granting s moti on to voluntarily dismiss the case a. Why? initially chose the time and place of the suit and has caused at least the expense of retaining a lawyer and answering the complaint. Now has changed his mind; thus should bear the cost.

i. FORM of a settlement agreement: 1. 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

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


1. Rely principally on contract 2. Parties have great freedom to write their own procedural rules 3. Like settlement, ADR has both positive and negative public policy issues attached (the same as for settlement) 34

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

ii. However, because decisions must be made by a reasonable jury, judges sometimes grant summary judgment in cases like the one above anyway because no reasonable jury could have decided otherwise. iv. The court decides summary judgment motions on the basis of various documents [i.e., affidavits, depositions, transcripts, copies of relevant documents] 1. 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. 2. One of the most common documents used in a summary judgment motion is the affidavit, which is a written document that the affiant swears under penalty of perjury that the statements made are true. 3. BUT, the affidavit MUST be based on personal knowledge! a. RULE 56(e): A supporting or opposing affidavit must be made on personal knowledge i. So you cant say someone told me that v. What if the non-moving party says I need more time for discovery? 1. They can voluntarily dismiss a. But, theyll either need the courts permission or the other party to agree, since the opposing party already filed a motion for summary judgment. 2. 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, or other discovery to be undertaken [RULE 56(f)(2)].

- Exam Tips If an exam question deals with resolving a case in the pretrial stages, it is important to consider all the different ways a case may end prior to trial. 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. If a defendant has appeared in any way, it is entitled to notice prior to this hearing. Involuntary dismissals: Students sometimes do not recognize the tremendously broad scope of the involuntary dismissal rule. Most dismissals that result from a motion, are involuntary dismissals governed by Rule 41(b). o Rule 41(b) also treats most dismissals as adjudications on the merits, which means that they prevent the party from filing the same claim or claims again. However, the rule exempts certain types of dismissals and gives the dismissing judge the authority to exempt others.


i. How judges cope with their dockets and the implication of those steps for litigants. ii. Courts have tried a number of approaches to reduce the time and cost of litigation. 1. THEME: Efficiency? Moving the case along via Rule 16(b) a. Note: Most states dont have an equivalent rule. Its up to the parties, but will want to move the case along because it does n ot want the case to be involuntarily dismissed.

b. Judges MUST issue a SCHEDULING ORDER! [RULE 16(b)]

i. A pretrial conference will result in a pretrial order that guides the remainder of the case. 1. Rule 16 only applies to the federal courts, but MANY states have enacted similar provisions. ii. WHEN must the judge issue the order? 1. RULE 16(b)(2): a. As soon as practicable; b. But within the earlier of 120 days after any has been served with the complaint; OR c. 90 days after any has appeared. iii. WHAT must be in the order? 1. RULE 16(b)(3): a. (A) REQUIRED contents i. The order must limit the time to: 1. Join other parties 2. Amend the pleadings 3. Complete discovery 4. File motions. b. (B) PERMITTED contents i. The order may: 1. Modify the timing of disclosures under Rules 26(a) and 26(e)(1); 2. Modify the extent of discovery 3. Provide for disclosure or discovery of electronically stored information 4. Include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced 5. Set dates for pretrial conferences and for trial 6. Include other appropriate matters iv. Can a party MODIFY a schedule? 36

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

XIII. Determining Trier of Fact and Trial Jury or Judge? a. Judges may DIRECT A VERDICT After trial but before it goes to jury

i. A directed verdict happens AFTER trial; BEFORE a jury gets it >> after / present their evidence. 1. Would this violate due process? a. No, the parties got their process the trial. b. Also, directed verdict is just like summary judgment; it just comes at a later stage! So its okay. ii. RULE 50(a): Judgment as a Matter of Law [judgment as a matter of law = directed verdict] 1. After the party has been fully heard on an issue during a JURY TRIAL, and the court finds that a REASONABLE JURY would NOT have a legally sufficient basis to find for the party on that issue, the court MAY: a. (A) Resolve the issue against the party; and b. (B) Grant a motion for JUDGMENT AS A MATTER OF LAW against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. i. Note: Same standard as summary judgment. 2. What is the STANDARD for Directed Verdict? a. The standard for a directed verdict, governed by Rule 50, 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). (Celotex said standard for summary judgment = standard for directed verdict). i. In Reid 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. The Issue wasnt whether the s story was plausible, but whether it was more likely than not. 1. Note: The result might be different if the cow was closer to the fence than the gate, or if the size of the hole was too large/too small for a cow to fit. b. If is asking for a directed verdict, it must prove that no reasonable jury, by a preponderance of the evidence, can find for . i. Pennsylvania Railroad v. Chamberlain ( on railroad, fell out of his car onto the tracks, ran over by the traincars and died. Alleges that the cars on the train collided which jolted him off the train. states there was no collision, just fell off. s evidence: employees on the car that allegedly hit s car said there was no collision, everyone in a position to see said there was no collision. s evidence: O ne person who was far away at an acute angle said he heard a loud crash, saw the railroad, and inferred that there was a collision. moves for directed verdict. Court says that it is possible that s story is true, but given the evidence, it is not reasonable. argues lets take it to the jury, its conflicting evidence, allow the jury to decide issues of credibility. BUT, court says no.) 1. Note: This was reversed by Learned Hand in the Court of Appeals this is NOT black-and-white! 2. Note: Isnt there an issue of credibility here? Shouldnt it go to the jury? a. No there is NO issue of credibility here. b. Difference between CREDIBILITY and REASONABLE INFERENCE: i. Ie: I heard x, I saw y, there must have been z. Jury takes on the first two clauses, but judge decides whether the inferenc e (3rd clause) is reasonable to follow. iii. WHEN can a party file a motion for directed verdict? 1. After a party has been fully heard on an issue during a jury trial [RULE 50(a)(1)] a. Thus, a could file a motion for directed verdict AFTER presents evidence! b. Pennsylvania Railroad v. Chamberlain (see above) could have filed a motion for directed verdict after presented its evidence the one testimony. Why did wait? i. It had better witnesses! So its safer to wait in that case. iv. Reasons for the Court NOT to Grant Summary Judgment but later Grant a Directed Verdict 1. Sometimes the evidence on paper looks stronger than the evidence presented at the trial. (Basically the court wants to be sure that the information presented pre-trial all makes it into evidence through the proper system, and that the parties do the proper work in the proper way) 2. Judge is uncomfortable taking away the parties day in court 3. Evidence during summery judgment was incomplete. (The party said I know I dont have enough yet, but more evidence is coming, give me time.) v. A directed verdict is usually motioned for, but can be granted sua sponte. vi. The 7th Amendment (pg 292) grants right to a jury trial in common law courts, so what makes summary judgment/directed verdict ok? 1. Juries exist for the facts of a case. If there are no facts in dispute, and the question is one of law, you dont need a jury.

b. What gives you a right to a trial by jury?

i. The 7th AMENDMENT 1. Interesting to note that the 7th Amendment does not create a right, but instead preserves a right that existed before the Constitution was enacted.

c. When does the right to trial by jury apply?

i. (1) In SUITS AT COMMON LAW 1. 1791: If a court could bring a suit in a common law court, then the party got jury. a. If the suit was in court of equity, then no jury. 2. What is the difference between courts of COMMON LAW and EQUITY? a. Remedies sought: i. General idea is that if it is monetary remedy, then it is a court of law and a legal remedy, thus jury. ii. Exceptions to this general rule: 1. Replevin you ask for the actual item back, not the money, but it is a legal remedy. 2. Ejection it is not a money remedy, but it is legal 38

3. Habeaus corpus. b. Types of claims: i. Breach of fiduciary duty equitable. c. Procedural devices: i. Class action equitable. ii. (2) Where the value of controversy shall exceed $20 1. How is this different from diversity jurisdictions amount in controversy? Here, it is the CONSTITUTION, not a STATUTE. So, $20 means $20 dont interpret it with 21st century inflation, etc. Claims Traditionally in Common Law Courts Claims Traditionally in Courts of Equity 1. Personal injury seeking monetary damages 1. Seeking an injunction 2. Contract seeking money damages 2. Contract seeking special performance 3. Property actions seeking replevin or ejectment 3. Property actions seeking foreclosure of a mortgage

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


e. How does a party obtain a jury trial? [RULE 38]

i. Add demand for jury trial in pleading [usually the complaint] -- RULE 38(b) 1. can also ask for jury in its answer the rule says any party ii. What if a party forgets to do so? 1. RULE 38(b)(1): The party has 10 days after the last pleading to do so a. Remember, MOTIONS do NOT equal PLEADINGS. iii. If you dont raise the demand to jury property, its waived! [RULE 38(d)] iv. Does the party have to have a jury for ALL issues? 1. No [RULE 38(c)] a. Party can specify issues it wants a jury for. b. If a party does NOT specify, a jury will hear ALL issues c. If the party has demanded a jury trial on only some issues, the other party may serve a demand for a jury trial on any other or ALL factual issues that are triable by jury. [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. What if the party asks for a jury, and then changes its mind? 1. RULE 38(d): A party can withdraw its demand for jury trial ONLY with the other partys consent.


i. JNOV: Judge taking the case from the jury by entering a judgment as a matter of law [RULE 50(b)] 1. The pre-verdict Judgment as a Matter Law is the DIRECTED VERDICT 2. The post-verdict Judgment as a Matter Law is JNOV. ii. What is the STANDARD for JNOV? 1. It is the SAME as summary judgment and directed verdict! Beyond a preponderance of the evidence. 2. Why would a party not get a directed verdict but get a JNOV? a. Judge thought about granting directed verdict, but allowed it to go to jury. i. If the jury agrees with the judge, then its fine. ii. If the jury disagrees, then the judge can issue a JNOV b. No new trial needed if JNOV is appealed. i. If a judge reverses the jury verdict via JNOV, and the losing party appeals, there is no need for a new trial because it already happened. ii. If the judge issued a directed verdict, and the losing party appealed, we would need a new trial. iii. A party MUST ask for a DIRECTED VERDICT before asking for JNOV! [RULE 50(b)] 1. If you ask for a directed verdict and it is denied, you can RENEW a motion for a directed verdict. Then the judge may decide to issue you JNOV. a. Why must we renew a directed verdict and not apply for a JNOV? We end up with a JNOV. i. The Seventh Amendment states that no fact tried by jury can be re-examined so, we say were not really re-examining, but that we are renewing a motion that was delayed. [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.]

i. If a partys motion for a JNOV is denied, it may request a NEW TRIAL >> [RULE 59] ii. A party may also request a new trial in the alternative If the JNOV later gets reversed. This is like filing for automatic appeal. iii. What are the JUSTIFICATIONS for granting a new trial? 1. RULE 59(a)(1) grounds for granting a new trial 2. (1) FLAWED PROCEDURE: the process leading up to the verdict has been flawed. a. Example: bad jury instructions, inadmissible evidence was admitted. b. Bad input yields bad output. 3. (2) FLAWED VERDICT: the verdict is unjustifiable a. Good input but still bad output. b. If this is the case, a judge can issue a JNOV. So we do we need a new trial if there was a flawed verdict? i. Because the standard of granting a new trial! (see below) iv. What is the STANDARD of granting a new trial? 1. A judge may grant a new trial when the jury verdict is AGAINST THE GREAT WEIGHT OF THE EVIDENCE. a. What does against the great weight of the evidence mean? i. The simpler the case that went to the jury is, the more respect we are going to have for the jury. The more complex the case, the more likely it will go to a new trial. 1. Lind v. Schenley Industries ( is manager of s company, alleges that there was an oral agreement between and to raise s pay. Jury found in favor of , then filed a motion of JNOV, and in the alternative, a new trial. Court of Appeals reverses the JNOV, and also says no new trial. The cause of action here is a simple breach of contract claim; jury needs to determine if the oral agreement is enforceable. Because its simple, no new trial, we will respect the jurys verdict. So wins). v. WHEN must a party file a motion for a new trial? 1. RULE 59(b): No later than 10 days after the entry of the judgment. 2. A party may ask for BOTH a JNOV and a NEW TRIAL [RULE 59(b)] a. This is done because in case a party does NOT get a judgment in his favor, he has a new trial as a second-best alternative. b. BUT, the court must decide on BOTH [RULE 50(c)] i. Granting a JNOV makes the new trial moot (because the new trial was an alternative to the JNOV], ii. What is the purpose of this? 1. This is to save time on appeal! 40

a. If the appellate court reverses the JMP, it is inefficient to remand, have the judge rule on the new trial motion, and possibly have another appeal. b. This requirement allows the court of appeals to deal with both. iii. Because the great weight of the evidence standard that applies to new t rials is easier to satisfy than the standard used for JNOV, a judge who grants a JNOV will ordinarily grant the conditional new trial. 1. BUT, this is NOT always the case. a. Example: Judge finds that s evidence is impermissible will grant JNOV. BUT, if the court of appeals determines that the evidence IS permissible, the evidence that was presented t trial would be enough to sustain the verdict, and a new trial would be unnecessary.

h. Judicial Recusal?
i. The judge must RECUSE himself -- 455 1. Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality m ight reasonably be questioned. 2. In Re Bostons Children First (s filed a suit against Bostons elementary school claimed they had been deprived of preferred school assignments based on their race, s sought injunction. A high profile case, the attorneys were interviewed and the Judge pres iding over the case publicly commented on it. Said that this case was more complex than another case the judge had granted an injunction in, implying that s case was not strong. The court says that the judge should have recused herself). a. Why is it such a big deal that the judge said this publicly? If she said it in court it would have been fine. i. Appearance of impropriety! 1. Comment might appear to be improper, even if its innocent. 2. We want to maintain faith in our justice system, so this is NOT okay. b. Note: The judge could have just waited until after the case was over to comment, or dealt with it because she has life tenure and does not need to worry about her reputation. ii. What if the judge commented PRIVATELY? 1. It is bad to have EX PARTE COMMUNICATION with only one party a. Judge cannot speak to one party without the presence of the other. iii. What if the judge commented IN COURT? 1. This is okay! Courts do this all the time its one of the purposes of the court. iv. Is there an issue with BIAS if a judge comments? 1. No courts have bias towards one side, thats how they rule! 2. Its more about UNFAIR BIAS. a. What is unfair bias? i. It includes such a HIGH ANTAGONISM/FAVORITISM towards one party. v. Can a court prevent parties from publicly commenting on pending matters? 1. Yes issue a GAG ORDER a. A gag order orders all parties and attorneys to refrain from commenting publicly on a case. i. BUT, 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, so it is not freely given.


2. 3. 4.


- Step-by-Step Analysis Subject matter jurisdiction a. Federal question b. Diversity Was there proper notice? Was method of service constitutional? Personal Jurisdiction a. Long-arm statute: i. Federal: Rule 4(k) go through each provision to see if they work/dont work. ii. State: See relevant state statute; go through each provision. b. Due Process Analysis >> minimum contacts Venue a. Look at the statute [federal/state]

- FINAL EXAM 40% - 50 Multiple Choice Questions - [ minutes] 60% - 2 Essay Questions [ minutes] - 1 Short Answer [ minutes] - What you can bring: (1) rules (2) outline