Civil Procedure

12/15/2013 2:08:00 AM

Personal Jurisdiction in what states can the plaintiff sue the defendant? GEOGRAPHY! Same in state and federal
court court must have some power over something in the case

Court can have power over two things for PJ purposes

o

Defendant herself

Defendants property

PJ is In Personam (IP), In Rem (IR), Quasi In Rem (QIR)

o

IP = court power over defendant because of his/her contact with the forum state

IR/QIR = court power over defendants property, not defendant his/herself.

IN PERSONAM

Prefer IP use property if no IP as jurisdictional basis

o

How do we know if court has power over this? Check due process clause, which establishes
boundaries, tells how far the court goes re: jurisdiction for all 3 types of PJ

Due process circle how far can it go? Our case needs to be within the circle. If outside of the
circle, judgment = void, not entitled to full faith and credit by courts.

Just because w/in the circle, doesnt mean you have PJ follow step 2 need statute granting
personal jurisdiction in each case.
States decide how much of the circle to give to courts.

Step 1: look for a statute does a statute allow for PJ? If no, NO JURIS even w/in

circle

If yes, step 2: analyze constitutionality of the jurisdiction

Two types: specific jurisdiction vs. general jurisdiction

General = defendant can be sued in forum for a cliam from anywhere in the world

Specific: defendant can be sued for claim that arises in the forum state. Needs something to
do with something done within the forum: relatedness to something done in the forum.

Constitutional limit: due process circle. Go through old cases, because the law today is a combination
of them. on your exam, dont write out the history, just what is the law today.

Pennoyer v. Neff

traditional basis of personal jurisdiction:

o

Defendant served w/ process IN FORUM presence needs to be present at the moment of process

Defendants agent served in forum

Defendant = domiciled in forum general jurisdiction

Consent to jurisdiction

Under Pennoyer, tough to get IP juris only way to serve process is within the forum. Big problem as society
becomes more mobile.

Hess v. Polosky, 1927: PA citizen travels to MA and gets into a car crash. P wants to sue D in MA

however, juris is upheld under non-resident motorist act,. Juris is OK under act because by driving a car in the
state, you are consenting to appointing a state official to be your agent for service if in a car wreck.

Now all states basically have this.

Expands consent to implied consent, broadens agent to giving you an agent. Drive across state line =
appoint st agent for service and consent to service.

International Shoe Here, new formula Juris if D has such minimum contacts w/ the forum so juris doesnt offend
traditional notions of fair play & substantial justice.

3 important htings:
o

1945: clear serve process outside of forum

test seems to have two parts: contact & fairness

does not overrule pennoyer gives minimum contacts test as ALTERNATIVE TO pennoyer. Its a test IF
defendant isnt present when served.

McGee, 1957: upholds jurisdiction in CA over TX insurance company, based on one contact of insurance sold to CA state.

One contact is okay!

TX company solicited business in CA, reached out to the person to enter a contract in CA.

CA also has interest in justice for people living in their state

Expands juris!

Hanson v. Deckla: cut back on PJ.

Under intl shoe, contact must result form defendants purposeful availment relative

Defendants voluntary act defendant must reach out to forum, avail self in one way.

Here, hanson didnt do this: Fl had no jurisdiction voer the DQ bank. Even though dealt with FL resident, only
because the FL resident MOVED to FL: because she removed herself, FL not purposefully availed.

WW Volks: 1980: NY family moving to AZ. Buy car in NY, doesnt make it to AZ b/c in OK car crash, sue in OK

USSC says no juris in OK over NY retailer or distributor: NY only in tristate area, no juris in OK b/c no
purposeful availment just because car is in OK isnt enough, D didnt send the car there , it was brought
there. No jurisdiction

Surprising b/c foreseeable that a car could go to OK, but court says foreseeability is relevant, but not enough:
instead, must be foreseeable that D can get sued in that forum, here, not foreseeable. Feels circular.

Burger King Corp. v. Ruszewicz, 1985. FL BK sues in Miami, franchise. Court says juris in FL over Michigan guys

Court makes clear that two parts to international shoe: contact & fairness

Must have relevant contact before fairness becomes a factor at all may be super fair! But need relative
contact first.

Here, D reached out to FL to start a franchis, but says its not fair to get sued in FL. Ct says difficult burden on
D, D must show forum so v. inconvenient that at a severe disadvantage in litigation. Relative wealth is
irrevelant. Difficult ot beat jurisdiction based on unfair.

Asahi: stream of commerce case.

SoC: component valves in state A, sell to company in st B only. Co takes them, builds and markets final
product in state C, D, and E. valve blows up, is there relevant conduct or purposeful availment in CED? Here,
4-4 split
o

Brennan theory: contact if put product into stream of commerce and can reasonably anticipate will
get to states C,D, and E, because know that company B will sell there/ do that. Sense because value
guy can make more money from CDE sales.

OConnor theory: need more than that need brennan PLUS intent to serve states c, d, and e. show
that D had intent to serve the states, ie. Advertise there, consumer service, etc. w/o that additional
intent to serve markets, cant do it

McIntyre: worse split. English company makes shering machines, sells only to oH. OH co sells to US sttes one gets to NJ,
P injures self on machine in NJ, sues English company. Court splits, but agrees no jurisdiction in NJ. Why?

Kennedy: uses oconnor test no juris b/c company only reached OH, no intent to servce in NJ

Bryers: (2 ppl) no sides b/c on facts, doesnt meet either

Ginsberg: uphold jurisdiction, brennan theory if target USA, sue in any stae.

LAW STILL IN FLUX!

Burnham, 1990 : NJ citizen sued in C re: claim in NJ only works if California has general jurisdiction. D served w/ process
in CA: Q does traditional basis of Pennoyer (service in forum) good enough to get PJ, or do we need to look to intl shoe?
Does shoe exist alongside pennoyer? Justices split 4-4

Scalia; presence when served = good by itself, pennoyer is good law. Historical pedigree

Brennan: dont care: need to meet intl shoe for every case

SPLIT: not law

GENERAL V. SPECIFIC JURISDICTION:

General IPJ D sued in forum on claim rose worldwide. Until recently, not as firm.

Helicopteros + perkins general jurisdiction cases. If continuous and systematic ties w/ forum, juris can be
established

Goodyear: questions the above two cases. USSC unaninmously talk about general jurisdiction. Court continues test is
good, but GY, court goes beyond: not enough to have the tie, need to show that defendant is at home in the forum. For
person, place of domicile for business, where formed AND principle place of business.

Issue: does it go beyond? Nourt suggests GJ cant be based on purchases and sales. Needs so physical
presence. Until GY, people assumed companies can be sued in all 50 states, now not sure.

PERSONAL JURISDICTION TEST

1. Long-Arm Statute Analysis does the states long-arm statute authorize personal jurisdiction under these facts? Long
arm: see if store uses one. Always trying to get non-resident with specific jurisdiction

Rhode Island/CA model authorizes cts to exercise juris to the constitutional limit no further statutory
analysis required!

Enumerated act model specifically articulates factual circumstances where cts can exercise PJ
o

If yes, perform statutory analysis do the facts presented fall within one of the categories articulated
in the long arm statute?

If yes, continue analysis

If no, then PJ cant be exercised over the party. Analysis ends here!

Statutory inquiry all before = constitution, you need a statute (ie. Long arm) to allow IP
juris. All states have statutes that go w/ traditional values.

2. Constitutionality Analysis due process

Check whether traditional basis of jurisdiction is here, ala pennoyer. (was D an individual real person served w/ process
w/in the state?) If yes, discuss burnham split (below). Say traditional basis is okay, no international shoe required, but do
shoe analysis anyway b/c there is no current majority.

Scalia; presence when served = good by itself, pennoyer is good law. Historical pedigree

Brennan: dont care: need to meet intl shoe for every case

If no traditional basis, check for exceptions to jurisdictional analysis

o

Consent did D expressly consent to juris in the state through an applicable forum selection clause ?
see Carnival Cruise

State Citizens is the party challenging PJ an individual real person who is a citizen of the forum? NOT
FOR CORPS!!!!!!!!

Non-Resident P is the party challenging PJ the original P in the action? If so, that party has already
established juris by consent

Estoppel is D estopped form challenging juris for some reason?

If no traditional basis + none of above, need to talk international shoe

Must be relevant contact between D and forum state.

whether general or specific jurisdiction: issue of relatedness. Ask: does Ps claim arise from defendants conduct with the
forum?

If No, if continuous & systematic and unrelated, only OK if we have GENERAL IP jurisdiction. To get that,
defendant needs continuous systematic ties with the forum, substantial contacts: Goodyear - needs to be at
home in the forum, but selling there wont cut it. Helicopteros, didnt work either.

If yes, maybe specific juris like McGee. 2 factors to analyze:

purposeful availment D availed itself of the privileges of conducting activities within the forum state , thus
invoking the benefits and protections of its laws - hanson
o

Look to Asahi for split:

Brennan theory: contact if put product into stream of commerce and can reasonably anticipate will
get to states C,D, and E, because know that company B will sell there/ do that. Sense because value
guy can make more money from CDE sales.

OConnor theory: need more than that need brennan PLUS intent to serve states c, d, and e. show
that D had intent to serve the states, ie. Advertise there, consumer service, etc. w/o that additional
intent to serve markets, cant do it

Confined in 2 ways:
1. Stream of commerce ends at point of last sale & doesnt include consumers/users taking it
someplace else
2. Foreseeability is not enough D must target the market & if merely awareness, must be with
objective overt measures

need foreseeability: foreseeable not that product gets there, but that defendant can get sued there.
o

Contractual Contact does D have a contractual relationship with a forum resident? If so, use
contracts-plus analysis (ie. Consideration of the place of negotiation, execution, and performance of
the contract) to consider whether the contract solicitation, negotiation, and course of conduct
support finding of purposeful availment see burger king corp v. Rudzewicz and McGee.

If Single & isolated and unrelated no PJ here

Is jurisdiction fair? Fairness factors:

o

Burden on D to show gravely inconvenient. Burger King case: super difficult to meet

Five fairness factors:

Inconvenience for defendant and witnesses

Forum states interest: st may have interest for its people, create forum (mcgee) (review)

Ps interests: maybe P injured and cant travel: see facts

Legal system interest in efficiency

Shared substantive policies: some substantive interest? Calco, 1978: no juris b/c family
harmony

If its an in-rem action, look to Shaffer this case indicated that such actions will generally meet the minimum
contacts standard these are isolated but directly related contacts that warrant jurisdiction.

If its a QIR action, look to Shaffer again must still analyze the in-state property as you would any other
contacts. Property ownership is considered an isolated contact for jurisdictional purposes.

IN REM + QUASI IN REM

jurisdiction over Ds property

maybe long arm doesnt apply, so look to property in forum. Can be anything!

IR = suit = who actually owns the property?

QIR = dispute = nothing to do with the ownership of property: knows D owns, claim is unrelated

Pennoyer: Mitchell v. Neff:

o

P = contract claim v. D, who owed P legal $$. Used Ds property as QIR to get legal fees.

Would have worked, but it didnt why? Power holding: to be constitutional, the property must be
attached at the outset of the case.

Here, attached later on.

For IR and QIR, okay as long as property attached at the outset of the case

TODAY: you need a statute allowing the attachment. An attachment statute is different from long
arm. Same in most states, court can attach property that defendant owns/claims to own

Constitutional test: pennoyer = attach property at outset of case. Is that still good law? No

Shaffer: seizing property at outset isnt enough: must show D, not property, mets international shoe
test herself. Constitutional test now the same w/ IP, IR, and QIR. Footnotes: implies even though __,
some caes IR re: land, whose property exists show min contacts. REVIEW.

NOTICE

Notice = service of process: governed by RULE 4. Need to tell D about the case!
i. Process consists of summons and copy of the complaint. Summons = from court signed by clerk,
complaint copy too!
ii. Service can be made by any non-party who is at least 18 years old. Liberal: in some states, needs to be
an officer
iii. How serve individual? See 4(e)(2): 3 choices!
1. Personal service
2. Substituted service: very picky must be at defendants usual abode. common sense where
D is now. **

3. Serve someone of suitable age and discretion who resides there

4. May serve Ds agent. Maybe appointed by statute or law
5. Rule 4(e)(2) allows us to use state law methods for serving process. Two states: state where
federal court sits, or state law where service is effected. Ohio = methods above or by ohio
law. **REVIEW state methods
iv.

service of process on a business - Rule 4(h)(1) serve officer or general/managing agent of business.
1. Officer = obvious. Not just any employee, but one who can give papers. Rule 4(e)(1) applies
here too: if state law in effect or special law, use too

v. Waiver of service under rule 4(d) by mail, not service by mail, but waiver of service by mail: fed rules
dont allow, but rule 4(e)(1) may. Rule 4(d) waiver. Mail to defendant process and two copies of
waiver form. Send self-addressed envelope. 30 days later, D sign and mails it back. D waived formal
service. If D fails to do it, and no reason, have serviced w/ process and D pay for cost of service

Constitutional Standard

Mullane: 1950, Notice must be reasonably calculated under all circumstances to apprise party of proceeding
constitutional test. Rule 4 methods are all a-OK, even if D doesnt get actual notice. Constitutional standard doesnt
demand actual notice
Doozenberry v. US: 2002. Court reaffirms that constitutional standard doesnt demand actual notice. Due process is
reasonably calculated
Jones v. Flowers: 2006: if P = aware of lack of actual notice, might have to try another method

NOTICE TEST:
Notice was adequate notice given to D? was notice reasonably calculated under all circ to appraise interested parties of
pendency of action and afford them an opp. To present their objections?

Adequate info does the notice convey suff information to notify the party of how and by when it should
respond?
o

If yes, continue. If not, notice is inadequate

Timeliness does the notice allow reasonable time to appear?

If yes, continue. If not, notice is inadequate

Method was the most reasonable means available employed?

If not, it should be employed see jones v. flowers

Yes if there is a superior method exists but too expensive, time consuming, or burdensome,
then it need not be employed over more practical methods under mullane - notice given =
adequate

Opportunity to be heard does the pre-deprivation hearing comport w/ constitutionality? 3 pronged test of
Connecticut v. Doehr:
o

Property interest at stake what is the nature of the private interest that will be affected by the
deprivation?

Risk of erroneous deprivation what is the risk that the defendant will be wrongfully deprived of its
property?

Showing what type of showing must p make? More P has to show to support claim, lower risk
of erroneous deprivation.

Bond is there a bond re? a bond req will tend to ensure that only P w/ plausible claims will
seek property higher bond, higher chance its not BS

Judge - is the decision made by a judge or a non-judicial court official ie. Clerk? When judge
involved, better chance D will not be wrongfully deprived of property

Ps interests what is the interest of the party seeking the prejudgment remedy and, if relevant, any
ancillary inters of the gov?

SUBJECT MATTER JURISDICTION (PJ = P can sue D in XYZ states)

Q: what court do we go to in XYZ state? State court or federal court?

o

Remember: PJ over parties, SMJ over cases and claims

Federal courts have limited SMJJ: you cant go to a federal court if you cant meet
1. Diversity of citizenship
2. Federal question

State court, can hear any case: general subject matter jurisdiction (NOT GEN PJ) someone from Austin
v. a bolivian person re: smth in Mongolia? Go for it!

Only exception: if federal question, the case must be held in federal court

Diversity of Jurisdiction: DivC

o

See 1332 (a) (1) case between citizens of different states and amount needs to exceed $75k.

Citizens of different states

Complete diversity rule: always start here! No diversity if any P is a citizen of the

same state as any D. however, P can be same as P, D same as d

Citizenship of human: test US citizen = citizen of the state where domiciled. ONE
domicile at a time if human being: only citizen of one state.

You can change domicile by physical presence: set foot in other state

Intent to make it your home

WWV: intent to make AZ domicile, but NY is domicile. Even though intent to make AZ
domicile, didnt set foot there.

Citizenship of Corporation: no domicile! Defined by 1332 (1): corp is a

citizen of
o

1) states where incorporated (can be multiple states but not common)

AND

2) the state of principle state of business corp can have multiple

states of citizenship

State of incorporation, prof says: principle business? (PPB) ussc, 2010, HERTS
case: PPB is a place where manages direct control and coordinate corporate
activities. All corporations have one nerve center = HW. If corporation
incorporated in DW, PPB = IL, huge factory in CA, ONLY citizen of DW and IL

Citizen of unincorporated businesses, ie. Partnerships, LLCs,. every business

is a corp or not a corp.

For unincorporated businesses citizen in state where members are citizens, ie. Law firm,
citizens of 15 states: firm = citizens w/ 15 states.

Amount in Controversy: cant just satisfy 1, need to also meet this.

Amount must EXCEED $75k

Aggregations: where must add multiple claims to get over $75k

RULE: aggregate Ps claims if 1 P and 1 D. CANNOT aggregate if multiple parties on

either side!

If P sues D1 (50k) and D2 (40k), NOT ok.

Works if:

Multiple claims by one P against 1 D

Multiple Ps asserting undivided interest

Claims alleging JSL against multiple Ds are valued based on entire amount
claimed

w/ joint claims, use TOTAL VALUE of claim. # parties = irrelevant.

If joint tortfeasors, ie. 1 P, 3 D, 751K, it is ok, aggregations dont apply. Look for word
joint to know if joint claim.

Federal Q Juris - does action satisfy section 1331 or one of the other statutes conferring fed q?

Essential federal element - does the claim contain an essential fed element such that it arises under fed law?
o

Creation test is the claim created by or brought pursuant to fed law?

If so, arises under fed law

Substantial Federal Interest Test if the claim is a state law claim, does the Ps right to relief depend
upon application or interpretation of federal law? If so, is the federal interest implicated substantial?

If so claim contains essential federal element, so long as federal jurisdiction here wouldnt
disturb any congressionally approved balance of federal and state judicial responsibilities
Grable

If not, claim lacks essential fed element, FQ doesnt exist

Well Pleaded Complaint does the essential federal element appear on the face of the plaintiffs well
pleaded complaint? Louisville & Nashville R.R. Co. v. Mottley. If so, fed q is appropriate
o

Mottley > an anticipated defense is not part of a well pleaded complaint

Centrality of federal issue to the claims being asserted

o

Congress may fail to create a private right of action Congress did create a private right of action
even if legislation failed to say so.

Holmes test: suit arises under law that creates the cause of action (T.B. Harms)

Merrell Dow judges here modified Holmes test to say if the case warrants an interpretation of
Federal law, federal jurisdiction should be applied.

SUPPLEMENTAL JURISDICTION section 1367

Additional claims in the case - every single claim in fed court needs SMJ.

SJ doesnt get case into court, gets non-fedq non div claims into court.

Mind Workers v. Gibbs labor disputes in coal mine P v D. 2 claims in case.

Claim #1 federal labor law fed q, ok!

Claim # 2 state law

Gibbs complaints are one real world dispute assess all claims!

One invokes FQ justice, gets CASE into federal court

Claim #2? Doesnt invoke fed q, based on state law. Also, no diversity. By itself, shouldnt go to
federal court but USSC said it can go if part of the same case or controversy as claim #1.

Claim #2 is ok if it shares common nucleus of operative fact. Under Gibbs, they did! Same real
world event transaction or occurrence.

SUPPLEMENTAL JURISDICTION TEST

When non-FQ, non div, does 1367(a) grant supplemental jurisdiction over this claim?
o

Yes, IF it meets Gibbs! This section is Gibbs common nucleus of operative fact

Does 1367(b) take away SJ here?

o

1367(b) applies only in diversity cases, NEVER in federal question cases

takes away SJ ONLY over CERTAIN claims by P, not by d. read 1367b!

SJ is not permissible over claims brought by persons made parties under 14, 19, 20, or 24.

REMOVAL Section 1441

D transfers case from st to fed ct. technically, its removal. Removal = one way street: ONLY state to fed,
NOT the other way around.

Removable if case meets federal SMJ based on Ps original complaint (1441a)

o

Exception: cant remove a diversity case f any D is a citizen of the forum (1441b)

Federal ct. can remand case to state court (if D made procedural mistake or no SMJ) 1447c

P can stop removal in 3 ways

Join a D whose citizenship prevents removal

Sue for exactly $75k or less

Choose not to assert a fed Q claim

Remand if case doesnt belong in fed ct, fed ct will remand/send back to state court to remove: D files
notice of removal: dont have to get permission, just do it.
o

Its removable if case meets federal SMJ, ie. Case meets div or fq.

EXCEPTION: (diversity cases ONLY) NO removal if any D is a citizen of the forum!

In-state defendant rule. Hypo: SC P sues D1 (NY) and D2 (GA) in GA st ct. st law clame can they
remove? No even though diverse, cant b/c D2 is from GA. If same facts but fed Q, could be removed

Must remove within 30 days, within service of process

All D who have been served must join notice of removal. **law of unanimity only remove if all D are on
board !!
o

30 days starts again for newly served Ds

VENUE

Big Q whats the difference? SMJ tells us we can go to federal court, venue tells us exactly WHICH federal
court we can go to. Country divided into federal districts. Venue puts cases into the proper district

Ds choices: P is filing case from the get go on federal court. 1391(b), 1 + 2. 2 basic choices:
o

Lay venue in any district where ALL Ds reside not anything BUT reside.

Sub-rule: if all Ds reside in different districts of same state, may sue them in district where
any ONE of them resides. What does resides mean? Codified for all litigants: human resides in
district where domiciles. Business resides in all districts where subject to PJ

Still go onto next step regardless.

Other choice: lay venue in any district where substantial part of claim rose. 1391a2 and 1391b2 If
property, then venue is proper in district where a substantial part of the property is located.

If none of these work, ie. They suggest NO venue AT ALL, go to 2 fallback provisions for 1391

If diversity, venue is proper wherever any D can be subject to PJ

Non-diversity, venue is proper in any district where any D may be found

Transfer of venue from one court to another in the same judicial system. Transfer from one fed district ct to
another. Federal district court in MN to HW, its okay.
o

Original federal court called transferor, new one is transferee

2 transfer statutes: 1404, 1406

similar: in BOTH of these, transferee MUST be a proper venue and have PJ over D. must be
INDEPENDANTLY true. Great way to test PJ and transfer

Hoffman Case only transfer to proper venue in PJ over D. jan 2012 court can order 1404
transfer to ANY district, if all parties agree.

Differences btwn 1404 and 1406

1404: transferor is the proper venue. From proper venue to proper venue. Can transfer in
interest of convenience to parties and witnesses, even if proper venue. Other place makes
more sense. Public and private factors to swtich common sense. Witnesses, evidence, etc.

1406 transferor = improper venue. From improper venue to proper venue. Transfer in
interest of justice, or dismiss.

A D can move for dismissal of action under 12b3 however, the ct can use 1406 to dismiss the
case or transfer it to a district w/ pproper venue.

Forum non conveniens FNC

o

Where court dismisses because much more appropriate court somewhere else: center of gravity =
somewhere else. Some courts will stay because better court has a different judicial system, cannot
transfer if different/inferior judicial system. If state court in AZ, transfer to st ct on Utah? Different
judicial systems! Usually appears when better court is foreign country, so dismiss. 2 rules:

Must be an adequate alternative forum available for the case? applicability of less favorable
law will not undermine this less favorable law in an alternate forum is no impediment to
recognition of the forum as a viable alternative. - Pier

There must be a showing that interests of convenience to the parties and certain public
interests argue in favor of the alternative forum despite Ps original choice. including location
of events giving rise to dispute, witnesses and evidence, applicable law, and ability to compel
others to participate in action as witness/parties

Different from 1404 and 1406 because a venue transfer is appropriate when practical factors suggest
another more convenient forum and that forum is within the same judicial system.

Piper Aircraft 1980s plane crash in Scotland, all Scottish, plane made in US PA. USSC said should be dismissed
because center of gravity is in Scotland. Harsh. How to decide? Same public and private factors in 1404 transfer. Casebook
piper case, footnote 6: common sense!

Other court must be adequate actually available. P argue foreign court isnt good because less money, but
pioer said just because less money doesnt make it inadequate, just as long as there is some remedy, its ok.

ERIE DOCTRINE

In federal court, under diversity jurisdiction should judge follow state law?

Answer: in diversity case, court must apply state substantive law.

o

Why? b/c erie said that result because rules of decision act (RDA) S 1652. Also, compelled by
constitution of the US 10th amendment states keep all rights not given to fed

Problem - what does substantial mean?

Shady Grove: re-articulation of justice warrans majority opinion. Although its been affirmed in this
case, we see that the mechanisms of gasporini and stuart v. rico are alive and well meaning that
Harlan is still alive.

Check if FRCP is under rules enabling act - Congress delegated supreme court to make up procedural rules, so
it must have to do w/ something procedural. If it touches something substantial, want to stay in state to avoid
forum shopping.
o

to be valid under REA, rule must again be procedural in that it pertains to the enforcement of legal
rights, rather than their establishment, and the rule may not abridge, enlarge, or modify any
substantive right.

CHECKLIST:
1. If US Constitution follow US Constitution includes judicial interpretations of the constitution
2. Hannah prong FRCP or Statute (fed directive) on point? Wins if valid, valid if arguably procedural

If FRCP or Statute Federal Directive on Point? To analyze if its on point, ask if its arguably procedural. Is the
federal statute broad enough to cover the issue before us can the federal directive address this issue? Is the
rule intended to govern the issue before us?
o

No not applying to issue before court, does not conflict with state legal rule go to state law. Not
likely.

Yes rule/statute designed to apply, it conflicts

If FRCP ONLY does it comply with the rules enabling act (REA)? Check if the FRCP is arguably procedural:
Does the FRCP abridge, enlarge, or modify substantive rights?

If procedural and doesnt abridge rights above, complies w/ REA, valid

If not, its not

If FRCP or Statute is the FRCP or Statute constitutional does it regulate the judicial process of enforcing
rights and duties recognized by substantive law and for justly administering remedy and redress for disregard
or infraction of them?

Note: arguably procedural is capable of being classified as either substantive or procedural. If it

truly regulates procedure, see whether the rule regulates judicial process for enforcing rights and
duties.

If substantive, use state law

If not, or if it can be both, constitutionality test is satisfied and the rule may be applied.

incidental impact on substantive rights dont make the rule invalid you can argue if its
incidental - want to maintain federal integrity. Could still hit substantive, but its not
abridging or enlarging or modifying the substantive right.

If little r rule (federal judge made rules) or uncodified federal practice do the erie hustle!
Dodododododododo

3. Erie Analysis
a. Substance v. Procedure test can the issue be readily labeled as substantive, & thus beyond scope of fed cts
to regulate w/in states? Do conflicting rules prescribe substantive duties & obligations, such as those
embodied in the law of torts or K, as opposed to the mere form and mode of enforcing those duties and
obligations?
o

Yes fed common law rule cant be applied, do state law

No go onto next Qs

b. Modified OUTCOME DETERMINATIVE: (OD) if competing state & fed legal rule arent readily susceptible to
classification as either substantive or procedural
o

Forum Shopping Encouraged? Would fed rule impact Ps decision re: whether to file suit in federal
or st court?

Yes substantive. Go to next Q and then byrd to see if countervailing fed policies that warrant
app. Of fed legal rule despite promotion of forum shopping

No move on

Guaranty Trust case. Claim asserted barred by statute of limitations, but federal
judge wants to ignore it. USSC said its outcome determinative, because if apply state
law, case dismissed, if ignore, case goes forward. substantial

Inequitable administration of the laws likely? Would application of the federal legal rule result in
substantial variations btwn outcomes in st and fed courts? if fed judge ignores this state law, will it
cause parties to flock to federal court? If yes, its not good, so follow state law.

Yes substantial. Go to byrd for same reason above

No fed rule

bring up Harlan dissent from Hannah v. Plumer here for Professor Stone primary Q is whether state law
must govern when the issue is one that is substantially affect those primary decisions respecting human
conduct.
o

Warren & Harlan both want the federal rules of civ pro big R rules be protected and to prevail.
Both recognize fed courts have the right given by congress to promulgate their own procedures.

BUT: where disagree:

WARRAN says treat the FRCPs like a statute dont double check them, if FRCP, apply

HARLAN dont always apply FRCP- sometimes legislature could have been thinking in
abstract, could have thought was procedural, but didnt realize its absolutely getting
at something substantive. How can rule makers conceive of every possible scenario?
Could be fallible, should keep that in mind.

Gasporini: shows justice warran as a majority opinion. However, used Harlan to get out from
underneath FRCP. Warran said always apply FRCP, but Harlan says sometimes dont apply - in
gasporini and stuart v. richo, didnt apply the on-point FRCP found way around it by
resorting to contorted readings of the FRCP Acting as if in accordance w/ justice warran, but
actually doing is getting at what Harlan said to do , b/c applying state law when there was an
FRCP.

c. BYRD BALANCE THE INTERESTS: Byrd case. Outcome determinativeness must be evaluated against the
substantive policy interests furthered by the respective state and fed practices Weigh interests of state v.
fed. Can facts, state interest not equal weight, because if had no reason for rule, federal interest is in
allocating power between judge and jury. Dont need to follow state law if no interest in applying it. How do
you balance?
o

State substantive policy furthered is the state practice bound up w/ the definition of the rights and
obligations of the parties such that the practice furthers some substantive state policy?

Yes check if countervailing fed policy that would warrant application of the federal practice.
Continue analysis

No if no, presence f fed policy that will be furthered by the application of a federal rule will
allow ct to ignore state practice. Check for fed policy interest below

Countervailing federal interest does the federal legal rule promote an important federal
substantive policy interest that outweighs the significance of the policy underlying the legal rule?

Yes if important substantive policy interests that are furthered by the federal legal rule that
are more important thn the state interests at stake, the federal legal rule should be followed.

No if only slight fed substantive policy interests at stake as compared w/ substantive policies
furthered by state practice, state legal rule should be followed.

Overall, take outcome determinative test, evaluate it against substantive policy interest furthered by
the practices of state and fed courts. Maybe X encourages forums hopping, or doesnt, or maybe
substantial variations whatever it is, does that hit against the substantive policy that federal court or
state court wants to further in the law? Because all laws have policy behind it. Always see if
countervailing federal interest see byrd and jury system. Want to preserve federal 7th amendment
application, federal character, etc.

Pleadings: docs file in court: claim, defense.

A) complaint pleading by plaintiff filing starts the case in court.
a. Rule 8A what must be there? Must have:
i. Statement of SMJ why? Federal court has limited SMJ
ii. Short & plain statement of claim
iii. Demand for relief tell judge what you want.

All three must be there, or get dismissed. Big deal is number 2 all about twombly & iqbal twiqbal. Changed
things a lot. Review stones theory!

Twiqbal together results in 3 rules:

o

Court ignores conclusions of law and looks ONLY at alleged facts

Facts must support plausible claim

Ct uses experience and common sense to assess plausibility

Number 3 is very subjective. Each judge brings own common sense, may vary. Rule 8 nowhere talks about
facts or plausibility.

Another thing: some things must be alleged with greater detail: rule 9(b) if alleging fraud in complaint, must
do so with particularity: gotta give chapter inverse how why where when what etc. re: fraud.

B) Ds response D, sued, served, look to rule 12 tells D must respond within 21 days of service of process, but must
respond or in default. Rule 12 gives choice:

Respond in 20 days either by motion or by answer all in rule 12.

Difference? Motion not pleading, but a request for court order: will have dozens of motions here, motions
under rule 12. Some pretty special: 12e more definite statement (this motion is pretty rare, if complaint is
gibberish.) or 12f, motion to strike strike out parts of pleadings.

Much more important is 12b which is the motion to dismiss. What are they? Motion isnt pleading. Answer IS
pleading all defenses in rule 12b can be raised either by motion or by answer. Will give rise to testable
issues!
o

Rule 12b defenses

SMJ get case dismissed because no SMJ

PJ get case dismissed because no PJ

Venue venue here is wrong

If insufficient process rare, usually when summons and copy of complaint, problem with the
document

Insufficient service of process here, documents are ok, but not served right

Failure to state a claim

Failure to join indispensible parties (party under rule 19)

Wy does it matter? 12g and h together imposes strict rules re: waiver. Tough. Three rules from 12g
and h

12b 2, 3,4,and 5 must be put in FIRST rule 12 response. Under rule 12, motion or answer!
Whichever first, if not use 12b2345, they are waived!

12b6 and 7 can be raised for first time any time through trial. Dont hav to be put in first
response.

HYPO: D raises 12b6 or 7 on appeal too late! Needs to be sometime through trial.

12b1 (SMJ) can be raised sometime in case even in appeal not waivable!

Hypo: P sues, D moves to dismiss for insufficient service for process (12b5).court denies
motion now what? D files answer, asserts no PJ. That defense is waived because 12b2 gotta
raise it in the first rule 12 response. Here, tis gone.

When raised, make it CLEAR that there is no PJ no contacts at all but now there is
b/c its waived

Answers: pleading 2 things you must do

You must respond to the complaint go word by word. Only 3 responses possible by the
defendant

Admit stuff

Deny allegations

Dont know lack of sufficient information

Rule 8b5 if say you dont know, must be something not in your control. If D
alleges X, but you dont know, only can do it if not in your control.

Failure to deny is admission on any allegation, except damages!!! Whatever allegation is, if not
denied, admitted.

Hypo: P says D was drunk and hit her with his car. D says there is no proof, but did not deny
actual intoxication by doing so, he admitted being intoxicated. Dont argue back, deny.

Raise affirmative defenses

o

8c1 lists a bunch. Big ones SOL, statute of frauds, etc.

difference between affirmed and denial denial is deny it, affirmed is different, injecting new fact or
raising something new. If right, P shouldnt win no matter what P says. Must plead or risk waiver!

JOINDER
Very important determines the scope of litigation. Goes with SMJ
A. Claim joinder by P

Rule 18A says P can join ANY claims she has once decide number of claims, must assess SMJ - do they all
have it?

B. Claim joinder by D

D is suing someone here as a counter claim or a cross claim

Does the claim arise out of the same t/o as claim asserted against D is there a logical relationship btwn the
claims? Will requiring separate trials result in duplicative multiple litigation?
o

If yes, Counter claim: rule 13a & 13b claim against an opposing party against someone who has
sued you, by D, against P. file /assert counter claims in answer

Compulsory counter claim

13a1 arises from the same transaction & occurrence as Ps claim. MUST ASSERT
CLAIM IN APPENDING CASE, OR ELSE CLAIM IS WAIVED.

Permissive counter claim

13b does not arise from the same t/o as Ps claim by permissive, mean may assert
here, but dont have to.

The kicker: remember SMJ: all done so far is figure out if the claim can be done procedurally,
but still need to assess SMJ for EVERY claim: if neither work, do supplemental jurisdiction

Hypo: P from NY sues D from FL for $100,000 for a state law claim. Diversity case. Suppose D
has a compulsory counter claim is it ok? Procedurally okay because from the same t/o but
now need to look to SMJ know the counter claim is for $90k. by itself will invoke diversity,
but we must tell prof that > $75k. dont discuss SJ here because we already have SMJ here

Hypo: P (NY) sue D(FL) for $100k. compulsory counterclaim is only $45k. What do?

Claim procedurally okay compulsory counterclaim is from the same t/o, so you must

assert it here

However, SMJ tell prof that the counterclaim is not diverse because although
citizenship is okay, its not greater than $75k. cannot add to the original clame,
because no aggregation here. Try SJ instead!

Does 1367a grant it? Yes, if it meets gibbs common nucleus of operative fact.
Compulsory counter claims always do because they are from the same t/o,
even narrower than the nucleus standard

Does 1367b take it away here? Applies in diversity cases uh oh! But 1367b
only kills SJ when the P is bringing the counterclaim and this is a claim by D,
so the claim is ok for SJ!

This is classic, but a good % of students dont go through every step:

Say Why it is procedurally okay

SMJ demonstrate diversity or FQ

Then SJ dont write that until shown no SMJ! At SJ, do 1367a and b.

If claim is against non-aggressor if claim to be joined is not made by D against P, who is claim being made
against?
o

Cross-claim

Rule 13g against a co-party, NOT opposing party. Only if multiple Ps or Ds and must arise
from same T/O as underlying case. Even though thats true, its NEVER compulsory no such
thing as compulsory cross-claim.

Hypo: 3 way car crash, a, b, c. all claims above $75k, no federal law sitting in diversity. A is
the P (MS) suing B & C, both from NY. If you represent C, what claims can you file? Gotta say:
C MUST file compulsory counter claim v. A why? Because the opposing party, it arises

from the same t/o. if you dont file it now, waive filing it later

SMJ? Yes! Because invokes diversity and is over $75k

C MAY file cross-claim versus B against a co-party, from same t/o.

Procedurally, its fine.

Whats wrong with it? No diversity NY & NY!

Check SJ does 1367a grant SMJ? Yes from same T/O, meets Gibbs test.
1367b? applies in diversity cases, but takes SJ only away from claims by P, so
D is okay

If not, claim cant be asserted as cross claim unless claimant has already successfully asserted
cross claim against co party, in which case additional claim can be joined under rule 18a.

If against a rule 14 TPD

A TPP can join under rule 18a

If claimant is P, and if out of same T/O, then may be asserted under 14a3. If not,
cant, unless already asserted claim against TPD, in which case addl claim cab be
joined under 18a

If by TPD against P, and out of same t/o, claim may be asserted under rule 14a2d. if not,
again, rule 18a business

If by a rule 19 or 24 party, depends on status to lawsuit once joined.

If intervenes under rule 24 become co-party w/ P claims will be seen as crossclaims

under 13g

C. Proper Parties

Permissive Party Joinder - rule 20a ppl who may be joined P tool
o

20a - Is P asserting against D a right to relief arising from same T/O? if yes, P can join D in single
action under 20a.

Joining co-parties - 20a1 who may be joined as co-plaintiffs. 2 or more may join together as co-P if
their claims

arise out of same T/O

raise at least one common Q law or fact

Joining Co-D -20a2 who may be joined as co-D (same as above)

Joinder of non parties see impleader

o
o

Strategies selective use of 20a

Why would P ever fail to join all Ps and Ds under 20 A?

Jurisdictional limits

No PJ over a D

Joinder of all parties gets rid of diversity

P prefer to have all potential Ds joined

Less expensive/burdensome to sue at once

Issue preclusion D in another suit can use issue preclusion against P on a

negative finding

Blame shifting to co-Ds

D may convince jury harm wsa not his fault party not present at fault

P prefer not to have all potential Co-Ps joined

Allows recovery from D

Adding a co-P will divert juries attention from her case

Doesnt have to share recovery.

Hypo: 3 of us go to a cab, can gets in wreck, we all get hurt. May we all sue together? Yes, under rule
20a1 may, if claims arise from same t/o, and raise at least one common question. May be co-P.

Co-D can ad cab company and cab driver as co-d? rule 20a2, exactly same test. Now, have to
see if case gets into federal court under diversity or fed q.

D. Compulsory party joinder - Necessary & indispensible parties

Rule 19 who should be or must be joined. Set up the issue: will have P, D, and non party A (absentee),
court will reach out and force A into the case sometimes because the absentee is necessary.
o

Is A necessary or required? Yes, if meets test in 19a1 3 tests, necessary if meet any one of the
three tests

Without the absentee, court cannot accord complete relief among the parties: focus on
efficiency. If A not in the case, will be a mess

19a1b1 absentees interest may be harmed if she isnt joined. Focus on the absentee herself
if not joined, might get hurt bring her in to avoid it.

19a1b2 absentees interest may subject D to multiple/inconsistent obligations focus on D.

hypo: P owns stock, Y owns stock. Agreed to buy it jointly in both names. P sues xyz corp to get Ys 1k
shares cancelled, reissued in joint name. Y is absentee. Q: is Y necessary? Approach!
o

Meet test 1? Yes arguably, without Y, court cant accord complete relief, if P wins, Y then can sue.

How does it impact Y? if P wins, stock is cancelled. Y can be hurt by this judgment

D if Y not brought in, D may be subject to multiple or inconsistent obligations.

On law school exams, a person who walks through all 3 tests is good, but you only need one of three.

Now, for the joinder of absentee

o

Is joinder of the absentee reasonable? PJ & SMJ need to assess both. Joinder is feasible if PJ, and if
bringing you in wont destroy diversity. If P sees you as necessary, youre good. If feasible, come in. if
not feasible then what?

Also venue. If necessary party objects to venue, ask if joinder of party renders venue
improper. If so, necessary party must be dismissed, now check if indispensible. If no, joinder
is feasible, party must join.

If joinder isnt feasible, then court must either proceed without absentee, or dismiss the case. Governed by
19b. need to ask if whether, in equity and good conscience, the action should proceed among the existing
parties, or be dismissed
o

19b factor #4 ask if court discusses it, will P have adequate remedy? Wont dismiss if P wont have
an adequate or other remedy. If some other court where P can go and get justice, then may discuss
but thats big factor. Wont dismiss or leave P in the cold.

What is the extent of the prejudice that would result if the action proceeded in absence of non
party?

Significant proceed to next Q

Insignificant party isnt indispensible, but continue

Lessing of prejudice can prejudice to existing parties or the necessary party that would result from
absence be lessened or avoided through protective provision in judgment, shaping of relief, etc? if
so, probably not indispensible

Adequacy of remedy will judgment rendered in the absence of the necessary party be adequate
from the Ps perspective? If not, favors a determination that necseary party is indispensible

If yes, probs not indispensible if no prejudice. If prejudice cant be avoided, move on

Adequate remedy elsewhere if dismissed?

If yes, party is probably indispensible

If no, party shouldnt be deemed indispensible, dont dismiss

Now, if dismiss, we call the absentee indispensible. So, indispensible is a label we slap on the guy at
the END of the process. Necessary, but cant be joined, so indispensible 12b7, motion to dismiss.

E. Impleader rule 14. Impleader is joining someone new.

Third party practice D joins someone new, called third party defendant TPD. D join TPD because TPD may
be liable to D for Ps claim another way to say indemnity or contribution. TPD owes indemnity or
contribution on the claim at hand.

TPD = impleader claim, not co-parties

Other claims can be asserted: under rules, P can assert claim against TPD. Rule also allows that TPD can
assert claim against P.
o

Flag: the TPDs claims MUST arise form the same t/o as the underlying case. Those rules laid out in
rule 14 as well.

Need to show a substantive obligation btwn D and TPD, that can arise from K or statute

Now, need to assess SMJ over each claim!

Diversity claim?

Fed Q claim?

SJ?

F. Intervention: rule 24 starts with I, so joining someone new ere. Absentee brings herself into the case. P didnt sue,
but absentee wants to be there. 2 types (In both, application to intervene must be timely)

Intervention of right under 24a2, right to intervene. If absentees interests may be harmed if shes not
joined, then right to intervene! (Unless someone in the case is looking out for her, unlikely). Exactly same as
test number 2 for necessary parties (19a1b1). What does that do? Great door: test under rule 19 or
intervention: bring in non party to protect non party from harm. Rule 19 is raised by D, rule intervention
raised by absentee herself.
o

Hypo: I have 1K stock, you sue. Im necessary party under rule 19 for the same reason why I can
intervene

Rule 24b2 permissive intervention show your claim or defense + pending case have at least one common
question. Not much of a test, but up to the court to let you in. with intervention, she intervenes either to
assert claims or to defend against claims either way, claim need to assess SMJ over claims, not parties.
(FQ, Div, SJ)

DISCOVERY

Federal rules are liberal for this want no surprises at trial within the rules. 2006 made very clear that
electronically stored info (ESI) is treated like all other discoverable stuff.

A. required disclosures federal rule 26a tells us that we must produce certain information without request by the other
party: must cough up voluntarily.

26a1 is a big deal initial disclosure, first 3-4 months into the case: must identify people with discoverable
information you might use to support your case in trial. Ust identify docs and ESI you also plan to use to
support the case in trial.

P must give calculation of damages how P came up with the number, D needs to tell about insurance, re: all
or part of the claims. Early in case.

26a2 is expert testimony, much later

26a3 is pretrial requirements, or disclosures. Late in the litigation. In pretrial, must tell other side all we can
rely on. In trial, why no surprises in trial 0 even witness list.

B. Discovery Tools always have five of them review with stone. What are these five tools and which can be used to get
information from a non-party?

Deposition, rule 30 where Q in deposition is oral. Also, rule 31, written. Regardless of how you ask, the
answer is always oral. Responds to Qs asked by council, under oath. Not in trial, but before. Can dispose
parties or non parties, but a non party must be subpoenaed , or does not have to attend

Interrogatories written qs, answered in writing under oath. Only be sent to parties none to non parties.

Request to produce, rule 34 written request for access to stuff. Often about ESI. When read, sounds only
works for parties, but clear: can use to get info for non parties, but need to get subpoenaed, or doesnt need
to cough up the stuff.

Medical examination, rule 35: unique. Because must get a court order, only one. Otherwise, tool of
harassment. Can get consent for parent on behalf of child. D can still order a kid to get an exam

Request for admission: rule 36. Only works for parties. Forces other party to admit or deny any discoverable
matter failure to deny is admission

C. Scope of discovery: what can we get?

Standard: rule 26b1 discovery anything relevant to a claim or a defense. Notice v. broad concept to
relevant if reasonably calculate to lead to admissible evidence, good to go.
o

Important: broader than admissible can discover stuff not even admissible at trial. If reasonably
calculated to lead to admissibility, can discover, even if not admissible at trial, ie. Heresay.

Work product: trial prep materials: rule 26b3 material prepared in anticipation of litigation. Important
generatione because eye to litigation if so, then starting point is protected from discovery, no matter how
relevant, to avoid free rider problem.
o

Hypo: boat charter service, I go, hire you to take me on a tour. Rough weather, boat sinks Im
injured, will sue. You hire PI to investigate, he talks to witnesses and views all records, writes up a
memo to you concluding youll be liable, sends you memo. I sue you, request all memos on accident.
You dont have to give me the PI memo because it was generated in anticipation of the litigation its
work product. However: I can override work product if show substantial need for it or the information
isnt otherwise available. In report, what if I had a witness, but has since disappeared? well maybe
because hes unavailable now, can maybe sue. Some are absolutely protected though =, like mental
impressions or conclusions, legal theories and opinions at least in theory, protected absolutely. Can
be generated by party or by rep of the party doesnt have to be generated by a lawyer (under fed
law). Some states, has to be.

Amendments

Beeck v. Aquaslide N Dive Corp. (Eighth Circuit US 1997)

Facts: Same situation as Zeilinski but different result. Someone gets injured on a slide, plaintiff sues, and
Aquaslide says that the slide is theirs. After Aquaslide president inspected the slide, they found out it wasnt
actually manufactured by them, but by some other company. By the time defendant realized this, statute of
limitations didnt allow plaintiff to sue someone else.

Reasoning: Court looks at the defendant, who answered the allegation in good faith, and didnt do anything
wrong. If the court does something to estoppels the defendant from showing the slide doesnt belong to them,
it would result in payout from parties who didnt do anything wrong. When the court balances the equities,
it will take into account litigation behavior of the parties.

Other: Parties can use Rule 15 to relate back their amendment to a date before the Statute of Limitations.

Rule 15 Amendment and Supplemental pleadings. 15(a)(1) provides a right to amend pleading once within 21 days of
serving. 15(a)(2) provides a part can amend pleading again with consent of opposing party or if the court grants leave.

15(c)(1)(A)-seems to be an attempt to avoid an Erie problem. If State has a more lenient relations back rule, we should
just follow the state rule.
15(c)(1)(B) is necessary in order to meet 15(c)(1)(C)

Worthington v. Wilson (Seventh Circuit US 1993)

Facts: Plaintiff lists three unknown defendants under 42 U.S.C. 1983. The complaint is filed two days before
the Statute of Limitations is about to expire. After S/L expires, he learns the identity of the cops and wants to
amend his complaint to include them. Invoking Rule 15(c)- relation back of amendments- allows you to get
around statute of limitations by retroactively keeping the initial filing date. This case is brought under Federal
Question and theyre borrowing Illinois statute of limitations as a matter of judge made law 15(c)(1)(A).
15(c)(1)(B) is met here. Plaintiff argues 15(c)(1)(C)- that the two cops knew or should have known action
would have been brought against them, as long as it meets the 120 day serving notice limit.

Reasoning: Although Wall and Wilson both received their notice within 120 days, a mistake concerning the
proper parties wasnt made. Plaintiff simply didnt know who it was so he didnt include any names. 15(c) is
attempting to balance the rights of plaintiffs and defendants. Trying to prevent plaintiff from becoming time
barred, but dont want to prejudice defendant.

PRE-TRIAL ADJUDICATION
Several ways it may happen very mechanical. Voluntary dismissal and default. 2 important things: Summary Judgment
and 12b6.

12b6 motion to dismiss for failure to state a claim. With this motion, court never looks at evidence! Only
looks at face of the complaint only care who P alleged, only read complaint. Under twombly / iqbal, ignores
conclusions of law, looks only at allegations of fact. So when judges get 12b6 motion, ignores conclusions of
law and decides if alleged facts state plausible claim. Subjective with the judge. Says no sense because no
plausible claim compare with b (?)

Summary Judgment rule 56. Very different! Case is in litigation stream, P stated claim, make motion for
SumJ because case doesnt need to go to trial. Do we need trial? Only if need to resolve disputed facts if no
dispute of fact, dont need trial, can enter SumJ.

Rule 56A
o

No genuine dispute of material fact

Youre entitled to J as a matter of law

Slam dunk. Once show number 1, only issue left is matter of law: big deal = whether fact
dispute, ct can look at evidence, usually will. Stuff sworn to, signed under penalty of purgery
ie. Depo, interrogatory, answer, affidavits, etc.

Where does evidence come from? Proffered by the parties. Judge reviews evidence and asks
self if, based on evidence, service Q of material fact. If no, ct can just rule as matter of law.

If yes, go to trial: try to weed out cases that dont need to go to trial, tough because taking away right to go
to trial.
o

Courts are cautious about this, bend over backwards. rule 1986, USSC decided three cases on the
same day: matsushita, Anderson, celotex: together stand for proposition that federal court should
loosen up and use SumJ, but still discretionary. Rare to see P win on SumJ Ps motion rarely granted.

Hypo: P = pedestrian, cross st, hit by Ds car, sues D. in complaint, (not worn statement unless
verified complaint), argues in cross walk had right of way and hit anyway. D denies, moves for SumJ,
supports with evidence from three people, all tell same story under oath. P can make mistake:
suppose P says game on, I have counter allegations, Ill rely on a complaint bad move. Pleading
isnt evidence, and evidence here is all pro-D. pleadings are useful only if contain admission (can be
treated as a fact) if P response by D, files affidavit from convinced swindler / swears that P was
right SumJ MUST be denied never weigh the affidavits! Must go to trial.

Scott v. harris, 2007 videotape can show there is no dispute: if affidavits and surveillance
video shows xyz, case says no dispute of fact and youre in the clear.

TRIAL
Resolve disputes of fact who desised? Thats what jury does, including credibility of witnesses and damages. If no jury,
have bench trial: judge does all fact finding, even if right to jury, can waive it.

If demand jury, 38b. if not demand it, waive it.

Right to jury: 7th amendment: applies only in federal civil cases.

o

Preserves the jury: not grant right or create right, but preserves it

Does so only in cases at law, not equity, because preserves right,, locked into historical test: whether
jury today depends on would have jury in England in 1791: because thats when 7th amendment
ratified. How do we know this today? Court says look at two things. See the Terry case:

Is the claim analogous to a claim that existed at engligh common law in 1791? Almost always
yes, even IIED.

Focus on the remedy that is sought by P need to know difference between remedies at law
and at equity. 1791 law court and equity court in law ct, had a jury: in equity court, didnt
have remedy. At law, remedy is damages ($$ to compensate for harm). Equity is equitable
remedies: injunction, specific performance, recision, reformation.

Problem: today, no longer separate law and equity court. Can have a case with legal
and equitable remedy, what do we do? Hypo: I own property, love backyard, always
sit there and admire it. Neighbor trespasses back and forth on my back yard. If I sue in
law, legal remedy is damages, which arent much. What Im really looking for is
injunction, because enforces by putting D in the slammer. I can sue for damages and
injunction to stop future trespass. Is there a jury here? Long time ago, no, because
look at center of gravity of the case. Changes with the beacon theater and dairy
queen cases! Boil down to 3 rules:

Determine jury right issue by issue, not by center of gravity. Not all or
nothing.

If issue of fact underlies both law and equity, you get a jury. Every issue of
fact for law = jury, if fact issue does both, jury

Generally , try jury issues first.

Back to the hypo: want damages what issues do we litigate in case?

Did D trespass? Jury? Yes, because underlies claim for damages at law. What
else?

How much damages? Yes, jury on that because related to claim at law

Whether meet standards for injunction? No jury, equity case

Motions special ones at trial. If jury, need way to control it: 2 will relate to function civil cases, judge is
gatekeeper to get to the jury: even if 7th amendment applies, P needs to put enough evidence in to go to a
jury. 2 motions relate: same but at different times.
o

Motion for judgment as a matter of law JMOL, rule 50a. a.k.a. directed verdict. If this motion,
judge decides for the jury standard = 50a1: boils down to grant motion if reasonable people could
not disagee on the result. Remember, were at trial:

Must be by motion can never do this on its own.

Under 50a2, you cannot move for this until after the other side has been heard at trial. After
P goes, D can then move. After D, both can move.

Example: substantive claim P asserts requiring prove 4 things, ABCD. Goes to trial, all evidnce
shows A,B, and D. none on C. D moves for JMOL: can be granted because based on facts: no
evidence of C, P needs C, P cant win. Reasonable person couldnt disagree.

Similar to SumJ, except this is at trial, and not before here, we look at evidence, not just
the complaint.

Renewed motion for judgment of law RJMOL rule 50B. exactly the same as JMOL, comes up after trial: ct
denied JMOL motion and let case go to jury, verdict, loser makes renewed JMOL motion: if grant JMOL, take
judgment away from winner, give to lower. Why? Standard = identical. Other words, say jury reached
conclusion reasonable people cant agree with/ reach.
o

Ex: p puts on evidence ABD, JMOL, ct says let jury do it because theyll probably get it right. Jury
fucks up, now undo it. Undo with RJMOL. **

MUST have for JMOL at proper time at trial, or else waive RJMOL

Motion for new trial rule 59a1 timing same as JMOL: within 28 days after judgment. Here, jdge feels
something wrong at original trial, affected outcome, get new trial. Maybe same way, maybe not but start
over. Can be made by party or judge can order on its own su asponte. Almost limitless grounds here maybe
judge put burden of proof on wrong party, or misconduct, anything to make you feel need to start over. How
different: new trial is much less drastic: with new trial, victory away from the winner RJMOL, more radical:
victory from winner, give to other side, no do over.

APPEAL
Everything we did at federal district court to get to appeals:

Final judgment rule: FJR: in TC, every ruling judge makes either final or interlocutory (not final) need to
figure out final: only can appeal from final judgment: cant appeal until judgment on merits of the entire

case. How do you now its final judgment? As one question; after making this order, does TJ have anting left to
do on the merits of the case? If yes, not final. If no, final, can appeal within 30 days.
o

Hypo: motion for SJ, winner denied, ct wrong: cant appeal; still ahs to shit to do on merits of dose: if
win jury trial, TJ grant ne trial. Appeal? No: still have stuff to do on merits of the case. Exceptions!

Interlocutory review, orders not final: nonetheless, can get review

o

Statute

1292a lists interlocutory orders appealable as right

1292b allows cert. of certain issues for interlocutory appeal

FRCP: rule 23f allows CoA discretion to hear an appeal of class certification ruling

Rule 54b only available in case with multiple claims/parties then Tj can expressly treat ruling as
final

Hypo: P sues D, counter claim. SumJ on cclaim under 54b, can treat as final, up to judge

Collateral order doctrine rare tc rules an important issue, but collateral to merits of the case: if up
on appeal, not sum up the case, make sure issue is unreasonable, up to CoA. Best bet, 11th
amendment immunity, st cant be sued in fed ct for certain claims.

CLAIM & ISSUE PRECLUSION

Rule says: only get to use ONCE. Stay mechanical!
Claim Preclusion Res Judicata

Based on should have raised, not did you litigate?

Affirmative Defense D raise or risk waiving / bears burden of proof

Requirements 3 elements:
o

Case 1 & 2 brought by same claimant against same D

does the current action involve the same parties that were parties to and adversaries in the original
action?

If identical, go to final judgment analysis.

Parties in privity if party in current action X wasnt a party to original action, is there a
relationship btwn X & one in the original action that warrants treating X as if it were a party?
Substantive legal relationship is there one that unifies interests of X and party to

initial action?

Was nonparty adequately represented in the prior action by a party to initial action?

If yes, same parties req satisfied

If no, same parties req not satisfied

Case 1 must have ended in valid final judgment on the merits. On the merits means rule 41b every
judgment on the merits unless based on a jurisdiction, venue, or indispensible parties. Even if
litigated nothing, default judgment etc, its final unless the exception above.

Valid: SMJ + PJ

Final: ends litigation & leaves nothing for tirial ct to do minus execute judgment

Merits: underlying dispute

Rule 41b: all judgments are on the merits UNLESS based on juris/venue or indispensible
parties

Semtex Rule 41b stops P from refilling in the same fed ct that dismissed action
whether dismissal is on merits for claim/IP in other cts analysis of fed common law

If resolved on procedural grounds, not CP

Show Case 1 + Case 2 based on same claim. This part requires the most discussion majority view (including
federal law) claim is that same T/O one lawsuit to vindicate stuff in t/o sue all at once.
o

Not universal: primary rights: ca, va, ny different claim for each right invaded dont look t t/o, look
at rights invaded: one suit for body, other for property.

Issue preclusion collateral estoppel.

Requirements - 5 elements:

Case 1 must end on valid final J on merits. Must have been litigated & determined.

Same issue in case 2 was actually litigated & decided in case 1

o

Cromwell no evidence isnt sufficient for IP: must be squarely decided. Show same issue was
litigated and decided in case 1. With IP, must have litigated in case 1 not so in CP.

Issue must have been essential to J in case 1. Was resolution of the issue in question necessary to
the judgment reached in the case? ould a different decision regarding the issue have affected the
outcome of the case?

Multiple grounds: is it unclear on which of multiple grounds for relief a judgment relies?
If so, no preclusive effect

If not, determination of those issues = preclusive effect

Against whom is preclusion used?

o

Can only be used against someone who was a party to case1, or in privity

Only bound if had full & fair opportunity to litigate Allen v. McCurry

6 circumstances where nonparty bound by judgment

agrees to be bound

bound by preexisting substantive legal relationship w/ a party

adequately represented Hansberry

controlled litigation

litigates through agency/proxy

Cromwell smith acted as agent for Cromwell, so Cromwell bound even if not a party

Nonparty bound by statute

by whom is preclusion asserted? mutuality

o

Today: non-mutual IP non-mutual defensive and offensive Ip. Non mutual IP = IP used in case 2 by
non-party in case 1.

Nonmutual defensive IP D in case 2 seeks to preclude litigation of issue decided in his favot

Usually OK as long as party against whom IP is used had full chance to litigate

Incentive to join all potential Ds b/c if loses case 1, D in case 2 can use negative finding
against calimant

Nonmutual offensive IP P in case 2 seeks to preclude litigation on an issue decided in her favor
against new D, same facts

parklane non mutual is ok, needs to be based on fairness factors not specific

Parklane Fairness Factors

Party against whom IP used, had full chance to litigate in C1

Party against whom IP is used, couldnt foresee multiple litigation

Unfair to allow IP in case 2 where claimant seeks larger recovery

Party using IP couldnt have easily joined in the earlier action

There are no inconsistent judgments on the record

Unfair to allow claimant to ignore judgment in Ds favor and only use one
against him

Incentive not to join as party to case 1, b/c if P2 loses in C1, P2 not bound b/c of DP, but if
P1 wins, P2 can use to her advantage.

Hypos

12/15/2013 2:08:00 AM

PJ - HYPO:

P = MD, P goes to VA, sees clock store, takes clock to MD. Gets hurt form clock in MD, PJ
for clock maker (CM) in MD? Walk professor through
o

Statute: does MD allow jurisdiction here? No traditional basis for jurisdiction here.
Look for a long arm statute that says jurisdiction over non-residents who commit
tort in MD. Does statute apply to the CM? argue both ways. Maybe answer is Y b/c
injury in ct A, others would say no because no tort in MD because D acted in VA,
not MD.

Does case fit within due process circle? No pennoyer here: need international shoe

Contact (relevant) between CM and MD?

Contact: the clock need purposeful availment. D reached to MD

somehow. Now, looks like WWV: no purposeful availment because P

took it there
What if other facts? Mabe Ds shop on inter state highway: maybe

shows contact. What about ads in MD? What if clock written for
with check, and CM said will take check out of state because a MD
customer.

Mcgee reach out and something v. WWV: make argument!

Foreseeability: not just product in MD, but could be sued there: argue both
ways!

Relatedness: does Ps claim arise form Ds conduct? Yes relatedness:

mcgee. Specific jurisdiction --? If general juris, look to goodyear

Fairness: defendant show gravely inconvenient.

Inconvenience for D and witnesses? What facts are important here?

Neighboring state! No way argue its inconvenient. See BK

States interst re: clocks? See facts

Ps interest re: P injured, tough to travel

4 + 5: efficiency & shared substantive policy: check with our TA

Diversity Juris Hypo

HYPO: domicile in OK, college in NY, always says doesnt like OK.. goes to MD for med
school, goes to MN for law school. Domicle is still OK because he didnt go there and
change intent.

Issue & Claim Preclusion

Claim Preclusion

Hypo: A&B collide, car crash, both suffer injuries and prop damage. C, A sues B for
personal injuries, litigated, valid final J. C2, A sues B for property damage from
same crash dismiss C2 under claim preclusion?

Issue 1 met? Yes because both by A v.s. B

Issue 2 met? Yes ended in valid final J on merits

Issue 3 met? Yes, because both about same t/o and thats the rule. Under
primary rights view, no because sue under different claim body isnt
property damage.

Hypo: a, b, car crash, injured. C1, A sues B litigate, done. Case 2, B sues A same
crash. Dismiss? NO why? Test #1 doesnt meet! B hasnt been claimant before, so
ok, but cant be compulsory counter claim! (rule preclusion under 13a)

Issue Preclusion
o

Hypo: I own car and roommate. Lend car to roommate, I am vicariously liable to
what roommate does to my car. Deal: roommate collides with F. case 1, F sues
roommate. At trial, roommate wins, b/c finding F was negligent. C2, F sues me
can dismiss under claim preclusion? No! issue preclusion? See:

1 met? Yes, C1 ended

2 met? Yes same issue litigated and decided negligent

3 met? Yes, issue essential to judgment won because D = neg

4 met? Yes party in case 1, so fair

5 met? Most cts say yes: fed law says yes if F had full

Nonmutual defensive IP D in case 2 using it, not party in case 1

Hypo: I own car and roommate. Lend car to roommate, I am vicariously

liable to what roommate does to my car. Deal: roommate collides with F.
case 1, F sues roommate. At trial, roommate wins, b/c finding F was
negligent. C2, F sues me can dismiss under claim preclusion? No! issue
preclusion? See:

1 met? Yes, C1 ended

2 met? Yes same issue litigated and decided negligent

3 met? Yes, issue essential to judgment won because D = neg

4 met? Yes party in case 1, so fair

5 met? Most cts say yes: fed law says yes if F had full chance to
litigate in case 1, here yes, so ok.

Nonmutual offensive IP plaintiff in C2 using it against new D in same facts. C1, F

sues roommate , roommate wins. C2, I sue F try to get IP. Non mutual b/c not in
C1, offensive, cause Im P. element 5 is only different one: most courts today say

no. geos too far. Important trend: led by federal law: allows it as long as its fair.
Loading case is parklane non mutual is ok, needs to be based on fairness factors
not specific

D had full chance to litigate in c1, person using IP against

Can foresee multiple suits when sue roommate, knew could have litigation
with me

I cant easily join in case 1. Idea is, maybe I should have: if not, shouldnt
be able to wait in ways to pounce

No inconsistent judgments. Say multiple cases re: car wreck, unfair to pick
one you like an dont one you dont like. If no inconsistent J, probs ok.