SUBJECT MATTER JURISDICTION OF THE FEDERAL COURTS..................................................

3
FEDERAL QUESTION JURISDICTION .......................................................................................................................3
U.S. Const. Art III, 2 ............................................................................................................................................. 3
DIVERSITY JURISDICTION ........................................................................................................................................4
SUPPLEMENTAL/PENDENT JURISDICTION ..........................................................................................................6
28 U.S.C. 1367 ....................................................................................................................................................... 6
Aggregation .............................................................................................................................................................. 8
REMOVAL ...................................................................................................................................................................8
THE PHASES OF A LAWSUIT................................................................................................................. 9
PLEADING ..................................................................................................................................................................9
THE COMPLAINT ................................................................................................................................................... 10
Plausibility in Pleading ..................................................................................................................................11
Specificity in Pleading: .......................................................................................................................................11
Consistency in Pleading .....................................................................................................................................13
Honesty in Pleading: ...........................................................................................................................................13
DEFENDANTS RESPONSE TO THE COMPLAINT ................................................................................................ 15
Default .......................................................................................................................................................................15
Pre-Answer Motions and Rule 12(b) Defenses ........................................................................................15
The Answer ..............................................................................................................................................................16
The Reply ..................................................................................................................................................................18
Amendments to the Pleadings ........................................................................................................................19
PRE-TRIAL DISCOVERY....................................................................................................................... 20
SCOPE AND RELEVANCE ....................................................................................................................................... 21
PRIVILEGE............................................................................................................................................................... 22
THE DISCOVERY DEVICES .................................................................................................................................... 23
Required Disclosures...........................................................................................................................................23
Interrogatories ......................................................................................................................................................24
Depositions ..............................................................................................................................................................24
Requests for Production of Documents ......................................................................................................26
Medical Examinations ........................................................................................................................................27
Requests for Admissions ....................................................................................................................................27
The Work Product Doctrine/Trial Preparation Materials ............................................................28
Experts .......................................................................................................................................................................29
Discovery Abuse and Sanctions ......................................................................................................................29
PRE-TRIAL ALTERNATIVES TO ADJUDICATION ........................................................................ 31
SUMMARY JUDGMENT ........................................................................................................................................... 31
TRIAL ........................................................................................................................................................ 33
JURY RATIONALITY AND LIMITS ON JURY POWER ........................................................................................... 33
JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT, JNOV) ................................................................. 33
Renewing Motion after Trial (JNOV) ...........................................................................................................35
Verdicts and New-Trial Motions....................................................................................................................35
APPEAL ..................................................................................................................................................... 37
THE FINAL JUDGMENT RULE............................................................................................................................... 37
AUTHORITY TO ADJUDICATE IN A FEDERAL SYSTEM: PERSONAL JURISDICTION........ 40
Challenging PJ:.......................................................................................................................................................41
MINIMUM CONTACTS AND ITS DISCONTENTS QUESTION 1: IS IT CONSTITUTIONAL?....................... 41

Specific v. General Jurisdiction .......................................................................................................................42

Notice and Service of Process .........................................................................................................................44
Venue ..........................................................................................................................................................................45
COMPLETED ADJUDICATION: THE DOCTRINES OF RES JUDICATA AND COLLATERAL
ESTOPPEL ................................................................................................................................................ 46
Identity of Parties: Privity and Representation ......................................................................................46
Final Judgment and Judgment on the Merits .......................................................................................47
Mutuality and Nonmutuality ..........................................................................................................................48

Subject Matter Jurisdiction of the Federal Courts

Remember to analyze claim by claim: federal court must have jurisdiction over
every claim in the case
Challenging SMJ:
o Can be raised by any party to the action (12(h))
o Sua sponte: courts may raise issue on its own
o No time limits, even appeal
1) Independent Basis: does each claim
have an independent basis for federal
jurisdiction?

a. Federal Question: does the claim arise

under federal law?
-must be part of well-pleaded complaint
b. Diversity:
-amount in controversy exceeds $75k
-have US citizen + diverse party
-is every P diverse from every D?

2) Supplemental Jurisdiction: if some

claim does not have an independent basis,
does it arise out of the same transaction or
occurrence as one that does? (same
common nucleus of operative facts) = so
related that it forms part of the same case or
controvery
a. Federal Question: if same common
nucleus of operative facts, then SJ okay
b. Diversity:
1. jurisdiction based soley on 1332?
1332(b)
-is the claim made by a P?
-are parties joined by Rule 14, 19, 20, 24?
if yes, no SJ
(c) if no, is there a reason for the court to
refuse? (discretion)
- novel or complex issues of state law
- state law claims substantially dominate
- claims with original jurisdiction have
been dismissed
- other compelling reasons for declining
jurisdiction

Federal Question Jurisdiction

U.S. Const. Art III, 2
Gives district courts the authority to hear all cases arising under the
Constitution
Enumerates and limits cases for federal courts
If case does not fall into one of these categories, unconstitutional for fed.
Court to hear it
28 U.S.C. 1331: Federal Question

Statute passed by Congress giving district courts original jurisdiction of

all civil actions
Grants federal jurisdiction over cases arising under federal law all civil
actions arising under Constitution, laws or treaties of the U.S.
Remember to look at the law that creates the cause of action to determine
whether it falls under federal or state law
Concurrent jurisdiction (not exclusive)
Constitution v. 1331
All cases broader than all civil actions?
Mottley interprets it this way so that if Congress wants to change the
statute they can interpret Constitution broadly and statute narrowly
Under the Constitution, courts could hear cases like Mottley, but because
of 1331 they cant
Louisville & Nashville Railroad v. Mottley (1908)
For a civil action to arise under the Constitution, it must be included in
the plaintiffs complaint
o Anticipated defenses are not part of well-pleaded complaint
Even though Constitution would allow P or D to raise
question of federal law, courts interpret 1331 as only for
the complaint
Always look at claim not mere existence of federal law
State contract dispute
Concurrent/General jurisdiction: state courts can take cases that federal courts
also have jurisdiction for
Exclusive jurisdiction
Patents, admiralty

Diversity Jurisdiction
Article II, 2
Allows fed courts to exercise J over controversies between citizens of
different states and between a state, or the citizens thereof, and foreign
states, citizens or subjects
28 U.S.C. 1332 (a)-(c), (e)
Statute that imparts limit on federal courts to hear cases based on diversity
only if they exceed $75,000
o Without interest + costs
o But includes all forms of damages
And between:
o Citizens of different states
o Citizens of a state and citizens or subjects of a foreign state
(alienage)
o MUST have US citizen on both sides
Lawfully admitted aliens for permanent residence are treated as equivalent
to citizen of the state

(a)(3) partially repeals complete diversity requirement

o Allows for federal jurisdiction when there is an alien on both sides
if there is otherwise diversity of citizenship
U.S. Const. Art III 2 jurisdiction over controversies between citizens
of different states
The legal representative of a decedents estate is deemed to be a citizen
only of the same State as the decedent
1332 (c)(2)
o Interpreted by Marshall to require complete diversity under 1332, even
though not expressly in statute and Constitution only requires minimal
diversity
Complete diversity = no party on one side may be a citizen of the
same state as any party on the other side
o For purposes of diversity jurisdiction, a partnership is regarded as having
every one of the partners domiciles (unlike corporation)
E.g. labor union
o Doesnt matter where the parties sue for purposes of diversity jurisdiction
o Matters if the parties are diverse at the time of the suit, not whether they
were diverse before or when the incident arose
Redner v. Sander (S.D.N.Y. 2000)
Can be a citizen of the US and not a citizen of any state for
purposes of diversity jurisdiction
Individual has at most one domicile for purposes of diversity
jurisdiction
Domicile = 1) place of permanent abode with 2) intention
of staying there
To determine, examine the most recent point in the past
which domicile was clearly established, and then ask if
anything has changed since then?
Redner was clearly domiciled in France at some point (was there
for 10 years), nothing has changed to establish CA domicile
Person can only have one domicile
o Intent to stay can arise after arrival
Hawkins v. Masters Farms, Inc.
Complete diversity case (although Constitution requires only
minimal diversity)
Where the decedent was at the time of his death living in Kansas
with his new wife for several months, even though he maintained
ties to Missouri (drivers license, mail, application for life
insurance, paycheck) his domicile was deemed to be Kansas no
complete diversity
Physical presence was in Kansas, and demonstrated intent to stay
with wife in Kansas (need both)
Hertz Corp. v. Friend (2010)
1332 (c)(1) A corporation will have as many as two states
State of incorporation

 State of Principal Place of Business

PPB = nerve center. To establish PPB, look at:
Headquarters
Direction, control, coordination of activities by those
running corporation
Location of board meetings
Not necessarily where appears to public
Question of fact
Why?
Big federal caseload, taking advantage
Dont overburden fed courts with what are essentially state
law claims
Corp. outside US alien, but could also have state citizenship if has
PPB inside US
Arguments against diversity jurisdiction
Huge portion of fed courts caseload
No vital function b/c prejudice based on state citizenship no longer
an issue
o Statutes language supports approach, one should interpret for simplicity
o Concurrent, never exclusive but may be removable
Why would lawyer want to get into federal court?
Dockets may be slower in state courts
May know of a favorable judge
Maybe better jury
rules of evidence maybe a little different

Supplemental/Pendent Jurisdiction
28 U.S.C. 1367
Legal justification for supplemental jurisdiction = efficiency, convenience and
fairness to litigants
o Both claims come from same common nucleus of operate facts
o Would be awkward to permit parties to join closely related claims
(Rule 18) and then preclude federal courts from hearing entire case
(a) = constitutional power to exercise supplemental jurisdiction over claim
with no independent basis
o Over all claims so related as to form part of the same case or
controversy
o Includes claims that involve joinder or intervention of additional
parties
(b) withdraws supplemental jurisdiction for diversity claims by persons made
parties by certain rules.
o Rule 14: Third Party claims
o Rule 19
o Rule 20: Rule that provides for more than one P or D

o Rule 24
o Or if additional P joined under Rule 19 or 24
o Process:
1) Is the sup jurisdiction under 1332?
2) is the claim made by P?
3) are the parties joined under one of the rules?
(c) = discretion for (a) should decline to exercise sup jurisdiction?
o novel or complex issues of state law
o state law claims substantially dominate
o claims with original jurisdiction have been dismissed
o other compelling reasons for declining jurisdiction
o Not always most efficient must investigate state law
Why?
Judicial economy so P doesnt have to bring two separate cases
about the same facts
Ordinarily federal courts are not thought to have jurisdiction over state
claims makes 1367 anomalous
United Mine Workers v. Gibbs
Suit brought in US Dist. Ct. under Labor Management Relations Act
(federal statute) = independent basis for federal jurisdiction + state law
claim (conspiracy)
State law claims are appropriate for federal court if
a. They form a separate but parallel ground for relief
b. Also sought in a substantial claim based on federal law.
if entire action before the court comprises one constitutional case
a. Common nucleus of operative facts
Doctrine of discretion, not Ps right need not be exercised in every
case it is found to exist
Article III allows jurisdiction over entire cases, not just particular
claims
Tried before existence of 1367 created language that ended up as
basis for statute
In re Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (Ill. 2007)
Federal Truth in Lending Act & state fraud claims
Claims are so related to make one case or controversy
a. Need some kind of adjudication of the appraisal claim to prove
actual value of the home no fraud claim without showing
value of the home is less than what it was appraised for =
intertwining
Compare facts necessary to prove elements of both claims
Whether the state claims can be resolved or dismissed without
affecting the federal claims
a. If remedy can only be given once one claim is adjudicated
Must be no explicit reason to deny
Szendrey-Ramos v. First Bancorp (2007)
Federal claim: Title VII employment law violation
7

State law claims: wrongful discharge, violations of state constitution,

defamation, tortious interference with contracts
State law claims are distinct from federal claims and have own
elements of proof (unnecessary to establish Title VII claims)
State law claims predominate over federal claims
a. Outnumber
b. What is it really about?
i. Retaliation and wrongful discharge, with Title VII
thrown in really a case about state law, insignificance
of federal claim
Novel and complex issues
a. Interpreting legal ethical rules in relation to her speaking
publicly will determine validity of claim not yet decided by
courts
b. Federal courts should not get ahead of state courts in
determining novel issues
To make (c) argument, must first establish (a) and (b)

Aggregation
A single plaintiff with two or more unrelated claims against a single
defendant may aggregate claims to satisfy the statutory amount
a. Supplemental jurisdiction covers when one is over
$75,000 and the other is less (aggregation not
necessary in this case)
If two plaintiffs each have claims against a single defendant, they
may not aggregate their claims if they are regarded as separate and
distinct
a. If they have a joint claim, then can aggregate
If two plaintiffs each have a claim against a single D, one of them
must meet the amount-in-controversy before the other can bootstrap
If one does meet the amount in controversy, the other can
add on if comes out of same events (supplemental
jurisdiction)
If original claim is over $75,000 then counterclaim can be heard
regardless
Only applies to what P can actually recover
Ps demand controls, unless legal certainty that he could not recover
the jurisdictional amount (e.g. punitive damages)

Removal
1) Is the case nonremovable
by statute?

2) Would the case have had

original federal
jurisdiction?
a. Federal Question:
b. Diversity Jurisdiction

Appropriate wherever
would be if brought in fed.
court in the first place
Removal authorized
Only possible if all Ds are

domiciled out-of-state
where claim is brought
c. Supplemental Jurisdiction Fed. Court can choose to
remand supplemental state
law claims

28 U.S.C. 1441(a), (b), (f), 1446(a), (b), 1447

Permits D to remove from state to federal court
1441 (a) authorizes removal only of any civil action which would have had
original federal jurisdiction
1441 (b) When based on diversity of citizenship: If any D is a citizen of the state
where the claim is brought, cant remove if it is a state law claim even if
could have been brought in federal court
1441(c) Defendant removes, federal court can severe or remand
1441 (f) permits an action that was improperly brought under state court to be
removed to federal court (rather than having to file a new action)
Unlike federal court, where they would make you refile in state
court ( 1367 allows for 30 day tolling period to refile in proper
court)
Removal only goes one direction state to federal court
Includes other claims that federal court has the power to hear under supplemental
jurisdiction (appropriate whenever would have been appropriate in the first place)
o P or D cannot choose to severe
o Fed court can remand or dismiss supplemental state claims
1446 governs procedure for filing the notice of removal
1447 governs procedure after removal generally

The Phases of a Lawsuit

{insert diagram}

Pleading

Set forth claims to relief and defenses

Gives other side notice of disputed terrain
Sort out relevant questions of law
Get rid of issues agreed upon
Consist of allegations
To prevail P must prove what has plead pleadings are not evidence
Text of rules has not changed, but Supreme Court has interpreted them as
requiring more
Expense of litigation
Shift to code-pleading

The Complaint
1) Basis for SMJ

Must allege basis

for courts J over
ALL claims

2) Statement of
facts showing P
is entitled to
relief
Must collectively
establish
elements of
claim
-Note:
sometimes
conclusions are
okay e.g. D was
negligent

3) Strength of Inference

4) Special Matters?
e.g. Fraud

Twombly: take away

conclusory statements
is it at least as likely as
alternative?
Iqbal: is it more than
plausible?

Common-law FRCP 9(b):

circumstances must be stated w/
particularity, but scienter may be
alleged generally
PLSRA (Tellabs): requires
particularity for both

Legal sufficiency of complaint: does the complaint state a claim upon which a
remedy could be offered?
o State facts
o Statement of jurisdiction
o Entitlement to relief
o Request for relief
Common-law and Code pleading
Gillipsie v. Goodyear Service Stores (N.C. 1963)
The complaint was dismissed because it did not include material,
essential ultimate facts constituting the cause of action, but rather
conclusions
No factual basis to which court could apply law
The adequacy of a particular allegation is a function of what the
law actually says
Code-pleading should be simple and clearly state the facts
Pleading under the FRCP
The Elements of a Cause of Action
FRCP 7(a), 8 esp (a), 10
FRCP 7 (a) delineates the 6 types of pleadings that may be filed
in federal court
Complaint
Answer to complaint
Reply to counterclaim
Answer to crossclaim
Third-party complaint
Third-party answer
Court may also order a reply to an answer or counterclaim
FRCP 8 notice pleading protocol for federal courts
Requirements, procedures, consequences
10

8(a) short and plain statement

FRCP 10 establishes form required for pleadings and motions
Separate numbered paragraphs
Haddle v. Garrison complaint
Doesnt matter that employment was at-will because the D
harmed the P in a way that falls under the interpretation
of person or property
Haddle v. Garrison (1998)
Supreme Court ruled that loss of at-will employment fits
into definition of injury to property in statute means
that now the complaint is legally sufficient (as others after
it would be too)
Interpret injury broadly
Mitchell v. Archibald & Kendall (7th Cir. 1978)
Previous case law doesnt permit the inference in the
complaint
o P argued for an extension of premises definition,
not that P was on the premises (but suing under
premises-liability duty) = no issue of material fact
not sufficient

Plausibility in Pleading
Strength of inference:
Bell Atlantic Corp. v. Twombly (2007)
Seems to require that the inference put forward by the complaint is
at least as likely as an alternative explanation
Above speculative level
Not about particularity, but whether the non-conclusory allegations
give rise to the plausible inference that the complaint attempts to
establish
Higher threshold than reasonable
Ashcroft v. Iqbal (2009)
Makes clear that Twombly was not limited to antitrust of any other
subcategory of cases
Instructs courts to disregard conclusory allegations, then decide
whether remaining non-conclusory allegations appear plausible
Says officials likely had a nondiscriminatory intent (fact-finding?)
Raises the bar for Ps to get past motion to dismiss for complex
cases and particularly those where P is not likely to have the best
evidence prior to discovery
Must be stronger than plausible inference
Also not about particularity
Specificity in Pleading:
Common-Law Fraud and Securities Fraud
Stradford v. Zurich Insurance Co. (S.D.N.Y. 2002)
11

Under ordinary principles of pleading, this claim would

likely satisfy, but in fraud complaint must state with
particularity the circumstances
o Who, what, where
Failed to provide fair notice of precisely which statement(s)
they alleged to be false
o Said Dr. lied, but did not ID lie
FRCP 9(b)
Requires particularity of pleading for fraud or mistake
circumstance
State of mind scienter can be plead generally by usual
Rule 8 standard
o Remember we still have to deal with heightened
pleading standard from Twombly & Iqbal
Common law fraud dont need strong inference; thats for
PSLRA
Fraud uniquely bad for Ds reputation; protect against
15 U.S.C. 78u-4(b)(1)(B)
Details pleading standard for securities fraud actions
Must specify each statement alleged to be misleading
State with particularity all facts upon which belief of
mental state is formed
Tellabs v. Makor Issues & Rights, Ltd. (2007)
PSLRA
Test set forth: When the allegations are accepted as true
and taken collectively, would a reasonable person deem the
inference of scienter at least as strong as any opposing
inference?
Requires BOTH particularity AND strength of inference
o Rule 9(b) says the opposite scienter can be stated
generally; Tellabs says it must be stated with
particularity
Strong inference: pleading requirement satisfied if at least
as strong as inference of alternative explanation
o May take into account plausible opposing
inferences, but inference doesnt need to be the
most plausible
o Which allegations can be considered when
assessing whether the strong inference has been
satisfied look at all of the allegations, not just
those stated with particularity
Inconsistent with Twombly
o Twombly seems to say inference needs to be more
than just as likely (for regular claims), but Tellabs
says all you need is 50/50 sounds like a higher
standard
12

o If Congress passed a statute, must have been trying

to make it harder for securities fraud Ps to get into
discovery
o Watering down?
o If put aside Twombly, Tellabs makes pretty good
sense
Civil Rights and Qualified Immunity
Leatherman v. Tarrant County Narcotics (1993)
Supreme Court decided that a federal court may not apply
a heightened pleading standard to civil rights cases
alleging municipal liability
Municipalities do not have qualified immunity
o Even though qual imm is an affirmative defense,
potential existence sometimes pressures court to
hold Ps to higher pleading standard
o Individuals do
Consistency in Pleading
FRCP 8(d)
Allows party to state as many separate claims or
defenses as it has, regardless of consistency
Pleading is sufficient if any one of claims is sufficient
On motion, judge can decide to sever cases
McCormick v. Kopmann (Ill. App. 1959)
The fact that the two allegations of the complaint were
logically inconsistent does not illegitimate the
complaint
So long as the different causes of action are clearly
demarcated, read only within themselves, and dont
spoil each other
P was uncertain which set of facts were true (if she
should have known then could not plead in the
alternative) Rule 11 prevents lying
Generally settle on one before go to trial
Honesty in Pleading:
FRCP 11
Establishes standards attorneys and parties must meet when filing
pleadings, motions, or other documents
Applies to any written paper filed in court signed in accordance
with FRCP 11 (a)
Regulates circumstances imposing sanctions
11(b) Restricts a lawyers ability to file pleading when he has no
more than a hope that favorable facts or law will emerge
Also applies to later advocacy

13

Governed by objective reasonableness (not subjective

intent)
o Under the circumstances
11(b)(1) No improper purpose
11(b)(2) Warranted by existing law or nonfrivolous argument
for extension of
Factual contentions (including denials 11(b)(4)) have
evidentiary support or will likely have upon further
investigation 11(b)(3)
11(b)(c) issue may be raised by opposing party motion or by
court
o 21-day cooling off period
Lawyers, responsible parties (law firms, partners, unrepresented
party) may be sanctioned
Monetary, nonmonetary (striking pleading, establishing contested
fact in favor of D) are sanctions
No monetary sanction against represented party (c)(5) for legal
issue, but can for factual issue ?
Golden Eagle v. Burroughs (9th Cir. 1986)
Legal frivolousness case
One frivolous argument does not make an otherwise valid motion,
pleading, paper unmeritorious
No requirement to differentiate position supported by
existing law v. one that would extend it
Lawyers need not cite contrary authority
Sanctions are only permitted when pleading is frivolous, but NOT
argument
Walker v. Norwest Corp. (8th Cir. 1996)
Massey (attorney)s allegation of diversity without pleading
complete diversity amounted to legal frivolousness (11(b)(2)) and
thus sanctions were appropriate
No way that pleading a clients citizenship and only some of the
opposing parties is warranted in existing law
Not 11(b)(3) because his problem was the things he didnt allege,
not facts that he did allege
Christian v. Mattell, Inc. (9th Cir. 2003)
Rule 11 does not authorize sanctions for discovery abuses or
misstatements made to court during an oral presentation; only
filed papers and pressing issues that have since become
unsustainable and lawyer knows it
List of conduct singled out by court included relevant claims (not
looking at the date on Barbie) as well as non-relevant ones (tossing
barbies off table)
(b)(3)

14

Allocation of Pleading Burdens

o Burden of pleading burden of proof
o Gomez v. Toledo (1980)
Qualified immunity is an affirmative defense and therefore the
plaintiff is not required to address it need only allege the two
requirements of 1983 claim.
Here it is not in the statute, but if it was use commas, verbal cues
that seem like they signal an exception
Justification: Supreme Court hospitable to civil rights actions
Dont require too much of Ps
o Jones v. Bock
The court ruled that exhaustion in a prison malpractice case should
be regarded as an affirmative defense since it is not specified by
statute and the usual practice of other cases is to not require too
much of plaintiffs

Defendants Response to the Complaint

Default
FRCP 55 procedure for entering and setting aside default judgments
55(b) If sum is certain or easily computable, clerk may enter
default
Otherwise, court
55(c) court may set aside default for good cause
Default judgment of liability stands but P has to prove up damages,
unless it is straightforward sum (contract) or easily calculated
Pre-Answer Motions and Rule 12(b) Defenses
FRCP 12
Technical objections, which dont speak to the merits of the
substance of the cause of action
Governs not only complaint but counterclaim (any pleading)
12(a) answers to complaints must be served within 21 days of
service, extended to 60 days by waiving service
12(b) enumerated defenses may be asserted by responsive
pleading or motion
1. Subject-matter jurisdiction
a. Not waived
2. Personal jurisdiction
3. Improper venue
4. Insufficient process
a. Challenges adequacy of summons
5. Insufficient service of process
a. Challenges manner in which complaint/summons
were delivered to D

15

6. Failure to state a claim upon which relief can be

granted
a. So what
b. Can be raised at any time
7. Failure to join a party under Rule 19
Limited to one pre-answer motion raising a 12(b) defense,
cannot raise 2-5 later if did not do it the first time
12(c) judgment on the pleadings
Can combine any defenses into one motion
12(e) motion for more definite statement
o must be made before responsive pleading
Waiving: 12(h)
o If defense was available when moved for moved
definite statement, then waived (e.g. insufficient service
of process), but if it was not available, then can still
raise it (e.g. 12(b)(6)

The Answer
Denials

FRCP 8(b) defenses, admissions and denials

o Short and plain terms
o Must fairly respond to substance of allegations
o Parties deemed to have admitted all allegations they
do not deny
o General denial rarely used anymore (never true that
no allegation in complaint is true e.g. trivial things)
I didnt do it
Zielinski v. Philadelphia Piers, Inc. (Pa. 1956)
o Facts: Plaintiff sued Defendant, alleging Plaintiff
was injured by a forklift owned Defendant and
operated by Defendants employee, which
Defendant generally denied in its answer to the
complaint. After the statute of limitations had
passed, discovery revealed that Defendant did not
own the forklift and Defendants employee was not
operating the forklift. Plaintiff sought a pretrial
order that Defendant admitted ownership of the
forklift and agency of the operator of the forklift, on
the grounds that Defendants general denial was
ineffective.
o Ds denial was too general to comply with Rule
8(b) should make clear what he is denying and
what he is admitting
o D fostered Ps mistake by omission

16

o Court holds denial ineffective, holds wrong D

liable but only because they have the same
insurance co. (money will come from the same
place)
o Could have had amended complaint
o If current version of 15(c) had been in place at the
time, could image it relating back notice and
mistake
Affirmative Defenses
FRCP 8(c)
Affirmative defense = any fact asserted by the respondent
that vitiates the opposing partys claim
Misguided counterclaims will be deemed affirmative
defenses
All aff defenses must be raised as aff defenses or they are
waived
a. But liberal amendment procedures
Not exclusive (can have affirmative defense thats not on
the list)
Prevent unfair surprise
Yes, but
Layman v. Southwestern Bell Tel. Co. (Mo. App. 1977)
The right of easement is an affirmative defense (consent
issue) based on pre-existing law
D has plead only a general denial nothing would prepare
opposing side for relevance of easement document
If pleading does not logically encompass evidence going
to bring into trial, evidence should not be admitted
A Special Affirmative Defense: the Statute of Limitations
United States v. Kubrick (1979)
When should the statute of limitations begin to run?
Holding: the tort accrues when the plaintiff knows the
existence and cause of injury
Requires reasonable inquiry on the part of P, diligent
pursuit
Reasons: dont want stale claims, right of D to move on,
death or disappearance of witnesses, encourage P to bring
claim promptly, ill-motivated claims
Fraudulent concealment can toll statute
Counterclaims
a. Unlike affirmative defense, counterclaims must be answered by
P 7(a)(3)
FRCP 13

17

Divides counterclaims into compulsory and permissive

Compulsory:
o If it arises out of the same transaction or
occurrence that is the subject matter of the
opposing partys claim
o Falls within ancillary federal jurisdiction even if
no original jurisdiction
o Barred by res judicata if not asserted in first lawsuit
No supplemental jurisdiction over permissive
counterclaims
o Can be brought later
13(g) Allows for crossclaims against co-parties if same
transaction or occurrence
Judicial efficiency
Plant v. Blazer Financial Services (5th Cir. 1979)
For a truth-in-lending cause of action, the defendants
counterclaim for an unpaid debt is compulsory.
Example of a cause of action created by statute that recruits
borrowers as enforcers of regulatory goals of statute
Really a 1367 problem
Tests for same transaction or occurrence:
o Are the issues of fact and law largely the same?
o Would res judicata bar a subsequent suit on Ds
claim absent the compulsory counterclaim rule?
Dumb test compulsory counterclaim is
barred
o Will substantially the same evidence support both
claims?
o Is there a logical relation between the claims?
= same aggregate of operative facts
Seems equally murky as same transaction or
occurrence
b. State court may not regard any counterclaim as compulsory,
depends on state
The Reply
FRCP 7(a) designates 6 six types of pleadings allowed (exhaustive)
1) Complaint
2) Answer to complaint
3) Answer to counterclaim designated as a counterclaim
4) Answer to crossclaim
5) Third-party complaint
6) Answer to third-party complaint
7) Court-ordered reply to answer

18

Amendments to the Pleadings

Conflict between easy amendment and prejudice
Prejudice
FRCP 15(a)
o 15(a)(1) Provides automatic right to amend pleadings a single time
within 21 days after service
If it requires a responsive pleading, may be amended within 21
days of responsive pleading or motion, whichever is earlier
o 15(a)(2) Outside circumstances in (1), cant just amend without asking
Court should freely give right to amend when justice so
requires
Beeck v. Aquaslide N Dive Corp. (8th Cir. 1977)
o Plaintiff was injured while using a water slide and sued who he
believed to be the manufacturer of the waterslide. Defendant initially
admitted it had manufactured the waterslide, then upon realizing it had
not, filed leave to amend its answer to the complaint.
o Difficult amendment case choosing between two evils (how can D
testify to manufacturing something he didnt design) v. prejudice to
P
o Held trial court did not abuse discretion in allowing amendment six
months later and allowing a separate trial
o If tried together, Aquaslide would be prejudiced crucial issue be tried
separately
Relation Back
FRCP 15(c)
o Governs when amended pleading under Rule 15(a) or (b) will be
treated as though it was filed on the date of the original pleading.
o Relevant for statute of limitations
o When amendment arose out of same conduct, transaction, or
occurrence set out in original pleading
o Pre-answer motion suspends time for filing answer: prolongs period
for amendments as a matter of course
o Will relate back if allowed by judge
o Amendment can still be proper even if it doesnt relate back (if its still
within its own SOL)
o Can amend at trial, if justice so requires as long as provisions of
15(c) are satisfied
o 15(c)(1)(C) Two requirements:
party received notice of action w/in time for service of
original complaint, AND
Knew that, but for mistake of proper identity of party, action
would have been brought against her
Distinguish mistake as to identity of party and as to who was
negligent, for instance
Moore v. Baker (11th Cir. 1993)
19

Test for same conduct, transaction or occurrence:

Whether the original complaint gave notice to the D of
the claim now being asserted
The original complaint for violation of informed consent
contained nothing that would put D on notice of malpractice
claim no relation back
Notice = justification for relation back
15(c)(2)
Bonerb v. Richard J. Caron Foundation (W.D.N.Y. 1994)
Trial court decision will be reversed only by showing an abuse
of discretion (type of decision rarely overturned on appeal)
The counseling malpractice allegations derive from the same
nucleus of operative facts as the negligence claim
o Why does Bonerb come out differently than Moore?
Maybe court giving break because changed lawyer
In Moore, maybe court thought that if she had a meritorious
negligence claim, she would have brought it in the first place
Baker had just filed for summary judgment
She said doc did a good job in original complaint
Worthington v. Wilson (C.D. Ill. 1992)
Complaint relates back if Ds were aware of should have been
aware they were the proper party within 120 of filing
Fair to say unidentified officers will know shortly after
served on dept.
7th circuit interprets mistake concerning proper ID of party
as the wrong D named, not just an unknown name
No relation back in this case
Court begrudgingly follows precedent
Not adopted in other circuits
15(c)(3)

Pre-Trial Discovery
General View
FRCP 26 general provisions governing discovery
Gives common sense boundaries
Outline discovery devices which rule to find where
1. Is the info sought
relevant to a claim
or defense? FRCP
26(b)(1)
-need not be
admissible at trial,

2. Is the info sought

being requested
from a privileged
source?
26(b)(1) and (5)
-effective only if
asserted

3. Is the information
protected work
product?
26(b)(3)

4. Special situation?

-document/tangible
thing

-Medical experts:
very limited
20

as long as it may
lead to info
admissible at trial
-must not be overly
burdensome (b)(2)
-if medical exam,
must show
condition in
controversy & good
cause (higher
threshold) FRCP 35

-protects only the

-prepared in
source, not the facts anticipation of
litigation
-by/for representative
-opposing party can -is it opinion?
file motion to
-if no, does the other
compel
party have substantial
need/hardship?

discovery for nontestifying experts

FRCP 26(b)(4)
-only discoverable
upon showing of
need (not often
because usually can
hire their own
expert)
-must be through
depos and interogs

Request objection chart

Scope and Relevance

FRCP 26(b)(1) discovery allowed for any relevant matter to claim or defense
of any party that is not privileged
Court may order discovery for relevant subject matter for good cause
Little basis of resisting fishing expedition except by privilege
Not limited to that admissible at trial as long as may lead
26(b)(2) Limitations on frequency and extent
(A) Court may alter limits
(B) Need not provide electronically stored info that is not
reasonably accessible b/c of undue burden/cost
(C): Stuff thats relevant may not be permitted if its too much
i. Unreasonably cumulative or duplicative; can be
obtained from other more convenient source
ii. Party seeking has had ample opportunity to obtain info
by discovery in the action
iii. Burden/expense outweighs likely benefits, considering:
1. Needs of case
2. Amount in controversy
3. Parties resources
4. Importance of issues at stake
5. Importance of discovery in resolving the issues
26(c) Protective orders
a. To protect from annoyance, embarrassment, oppression, undue
burden or expense
26(b)(1) - if something seems like it could reasonably lead to discovery
of admissible evidence, dont bar it
Davis v. Precoat Metals (N.D. Ill. 2002)
a. Race/national origin discrimination case
b. The Ps discovery request for discrimination complaints made
against D on the basis of race or national origin between 1998-

21

2002 was narrowly tailored to the specific allegations of the

complaint grant motion to compel responsive documents
i. Not necessarily true of any action, court relied on
distinctive aspect of employment discrimination
revolving around concept of pretext (specific to Title VII
cases)
c. 26(b)(1) permits discovery into any nonprivileged matter that is
relevant to any partys claim or defense
d. relevant = reasonably calculated to lead to discovery of
admissible evidence
e. Limits:
i. Unreasonably cumulative or duplicative
ii. Another source is more convenient, less burdensome, less
expensive
iii. Burden/expense of proposed discovery outweighs its
likely benefit
Steffan v. Cheney (D.C. Cir. 1990)
a. Constructive discharge for homosexual origin in military
claiming that shouldnt be the basis for legal action against him
b. Ps reasons for not answering deposition question of whether he
ever engaged in homosexual activity during his service:
i. 5th Amendment privilege against self-incrimination
ii. Not relevant
1. Relevant to remedy seeking (reinstatement) not
claim grounds on which agency took the actions
2. Threshold question: would the info sought help
the party seeking it prove or defeat the claim in
question?
c. Judicial review of administrative action is confined to the
grounds upon which the record discloses that the action was
based

Privilege

FRCP 26(b)(1) and (5)

No definition state courts rely on state laws; federal court on federal laws
except in diversity cases where should be governed by appropriate state
o Laws of evidence that create privilege, not FRCP
Protects info from certain sources, NOT the underlying facts
Have effect only if party asserts, can be waived
o Waiver can result from action inconsistent with claiming privilege
Disclosing matter to third party
From taking certain stances in litigation e.g. pleading
emotional state
Failure to assert

22

Attorney-client privilege: only protects communication between lawyer and

client from discovery, not protect from responding to discovery of facts just
because they were told to attorney
26(b)(5) Claiming Privilege clawback provision
o If party withholds info, they must:
Expressly make the claim, AND
Describe the nature of the docs w/o revealing info but in order
that the opposing party can assess the claim
o After notified of privilege, receiving party must:
Promptly return, sequester, destroy info/copies
Must not use/disclose until resolved
Take reasonable steps to retrieve info if party disclosed
May present info to court under seal for determination of claim
Producing party must preserve info until claim is resolved
If opposing counsel believes the info is important and not privileged, should
file motion to compel under Rule 37(a)(1) court will then decide whether
privilege applies

The Discovery Devices

o Can vary with local district court rules judge has power to supervise,
limit, expand (extremely broad)
o Rule 37 must in good faith confer, attempt to resolve problems before
seeking order from court
Required Disclosures
o FRCP 26(a) initial disclosures: must exchange w/o being requested
by opponent
If fail to disclose, cant use later
Unless info comes up later during discovery, its okay
o FRCP 26(a)(1)(A) at the commencement of discovery each party
must disclose:
The ID of witnesses
Likely to have discoverable info
May use to support claims/defenses
Not for impeachment calling into account witness
credibility
Description of documents by category and location
Computation of each category of damages
Can inc. wages, etc.
Insurance info
P wants to know if any money to satisfy judgment
Useful to know if insurance co. will be handling
defense

23

Interrogatories
FRCP 33
(a) (1) Party may serve 25 written interrogatories including all
discrete subparts
If need more, can ask court
Local rules may provide different maximum
(a) (2) Scope: any matter relevant under 26(b)
(b) Answers and Objections
Responding party
Time to Respond 30 days
Each must be answered separately and fully under oath
Objections must be stated with specificity
If not stated in timely objection waived unless
court excuses for good cause
Must be signed by person who answers, and attorney
must sign objections
E.g. work product, privileged matter
(d) Option to Produce Business Records
If burden is substantially the same for either party,
allows requesting party to come over and look for
themselves (shift burden to side asking for it)
Means of allocating costs of responding to
certain broadly framed interrogatories
Need to specify how to locate and ID records
Timing:
o Subject to restrictions of FRCP 26(d), which postpones
discovery until after conference under 26(f)
Responding party (or lawyer) has duty to make reasonable inquiries
in order to answer interrogatories
Can be as evasive as rule permits
Cheapest, but limited value as admissible evidence at trial
Used to ID persons and docs on other side
Eliminate undisputed issues
Only for parties of the case
To deal with disputes, see Rule 37(a)(3)(B)(iii)
o To respond to objection believed to be unmeritorious
Sign certify to best of knowledge they are accurate and correct
o If make erroneous response, have a duty to fix it under 26(e)(1)
but only if it has not been made otherwise known
Depositions
FRCP 30 procedures for taking depositions by oral examination
(a) may depose up to 10 witnesses
1. Without Leave

24

2. With leave: party must obtain leave of court, court must

grant consistent with 26(b)(2):
(A): parties have not stipulated to the depo, and:
(i)More than 10 (2)(A)(i)
(ii)Already deposed
(iii)Before time specified in Rule 26(d)
(iv)Deponent in prison
(b)(2) Can request subpoena to bring documents (subpoena duces
tecum)
Must be accompanied by request under Rule 34
(b)(3) may record by audio, audiovisual, or stenographic means
without special leave of court
Still need office qualified to administer oath
(b)(6) can request deposition from corporation, etc. if dont
know who it is
Corp. has the obligation of IDing the right person
(someone who knows about the matters stated for
examination)
If corp. gives someone unqualified to answer, and then a
rebuttal witness that the testimony was inaccurate not
resolved
(c)(2) objections
Must be noted on record, but examination still proceeds
Can instruct not to answer only to maintain privilege,
enforce limitation ordered by court, or present Rule
30(d)(3) motion (bad faith, annoy, embarrass, oppress)
o 37(c)(1)(A) court has to make judgment on
privilege
o Sometimes court will have to look at it wont
really maintain privilege (but will never happen
with 5th amendment privilege)
If dont put on record, then cant raise the objection at trial
o E.g. relevance
(d)(1) limited to one day of 7 hours
Can motion to ask for more time under 26(b)(2)
37(a)(3)(B) compels discovery response
(d)(3) motion to terminate
for bad faith, unreasonably annoys, embarrasses, or
oppresses deponent or party
Timing:
o Subject to restrictions of FRCP 26(d) postpones discovery
until after conference
Can obtain leave of court to depose prior to 26(f)
constraint, unless deponent is expected to leave US and
certified with notice
Rule 27 exception if danger of testimony being lost
25

Much more expensive than interrogatories

o Attorneys fees
o Court reporter services
o But more effective in pinning down deponent under oath,
follow-up questioning possible
More useful at trial
o Hearsay, but can impeach
Can be scheduled, noticed, ordered for people who are not parties
o Only device routinely applied to nonparties
o Subpoena 45(a)(2)(B)
Rule 37(a)(3)(B)(i) to compel

Requests for Production of Documents

FRCP 34
(b)(1)(C) request may specify form or forms within which must
be produced
Reasonableness factor as to what kind of request to
particular form
(b)(2)(E)(i) party must produce documents as they are kept in
usual course of business OR organize and label to correspond to
categories in request
Electronic data: entitled to information contained in
tangible things
Can be far more expensive than yield will be worth
Parties should resolve foreseeable disputes as part of FRCP
26(f) discovery conference
(b)(5) if the party believes the information requested is
privileged, cant just not answer - must acknowledge the request
unless conclude document does not fall within what is asked for
Distinguish:
o Request as phrased does not cover a particular
document
Dont have to say a word about it if dont
believe its not within what was asked for
o Particular document is within request, but argue
objection
E.g. privilege, relevance, work product
under 26(b)(3) will put the other side on
notice that you have it
Art of framing request
o Not so general/vague as to give party opportunity
not to include what you are asking for, or to get
mountain of documents

26

(c) Nonparties may be compelled to produce documents/tangible

things/permit inspection under Rule 45(a)(1)(A)(iii)/(a)(D)
(subpoena)
Problem of e-discovery:
Incredible volume of material
o Ease of replication
o Email as dominant form of communication
o Difficulty of actual deletion
Accessibility
o Responding party: problems of how to present coping
with stored info
o Requesting party: needs in form they can access and
understand
o Geographic
o Technical
Outdated software
o Legacy data
Timing:
o Subject to restrictions of FRCP 26(d) after conference
No presumptive maximum but may be limited under FRCP 26(b)
For nonparty, dont make Rule 34 request, serve subpoena
To compel, Rule 37(a)(3)(B)(iv)
Medical Examinations
d. FRCP 35
e. No presumptive maximum
f. The only discovery device that requires higher threshold than FRCP
26(b)(1)s relevance standard
i. Must show mental/physical condition is in controversy AND
that there is good cause for exam
g. Always requires court order
Requests for Admissions
h. FRCP 36
i. No presumptive maximum
j. Admissions made in response to request are deemed to be admitted
facts (only for purpose of pending litigation not preclusive effect in
subsequent litigation)
k. Except for a couple escape hatches, once you admit you cant produce
evidence that contradicts
l. Backed by FRCP 37(c)(2)

27

i. If party fails to admit a request later proved to be true, party

may move to make them pay reasonable expenses, inc. attorney
fees
The Work Product Doctrine/Trial Preparation Materials
FRCP 26(b)(3)
o Test for work product:
Documents/tangible things (really any kind of discovery)
Prepared in anticipation of litigation
Either litigation has ensued, or prepared with consciousness
that litigation was going to ensue
because of the prospect of litigation or primarily to aid in
litigation
Has to be for the current litigation in order to qualify
necessary part of what lawyer is doing to prepare claim or
defense for litigation that is imminent or ongoing
Created by/for representative
Attorneys, Insurance agents, etc.
o Not automatically protected if falls under work product
o Exceptions:
(i) and (ii) if party seeking can show substantial need for
materials and undue hardship in seeking to obtain same material
from another source, may be discoverable, but
o 26(b)(3)(B) opinion work product will not be discoverable under any
circumstances
Very common for judge to order redaction (if possible to separate
impressions from other info) as in contemporaneous memo
Never for oral recollections months later
Analysis:
a. Start with question of whether or not its work product
b. Then if its exception
Do not call work product privilege
Hickman v. Taylor (U.S. 495, 1947)
Above the rule
Jones Act case
Ps lawyers seek to discover any statements taken from members
of the crew, etc.
Written witness statements (verbatim)
Memos of interviews
Oral recollections
Even though the info sought may be relevant and non-privileged,
some of attorneys work product or trial preparation materials
should be protected to preserve the adversary system
Want attorneys to feel free to write down thoughts, think of strong
arguments to serve interests of clients

28

Editorialized
Most information is available through alternative source
No indication of prejudice
Must be specific to this trial

Experts
FRCP 26(b)(4)
Parties may depose expert witnesses who may testify at trial
Draft expert reports and most comm w/ experts protected as trial prep
materials
Allows only very limited discovery with respect to non-testifying experts
26(a)(2) disclosure of expert testimony
Distinguish between experts who have knowledge of facts prior to
litigation and those that are hired in anticipation of litigation
Generally, even names of consulting experts are protected from
discovery
Discovery Abuse and Sanctions
FRCP 26(g)
o Every disclosure, request for discovery, response or objection must be
signed by at least one attorney
o Certifies that:
Disclosure is complete and correct
Discovery request, response, objection is:
Consistent with rules, warranted in existing law or
nonfrivolous argument for extending
Not interposed for improper purpose
Not unreasonable or unduly burdensome
FRCP 37
o Court can sanction on motion or on its own
Mechanisms for enforcing other discovery rules
Two step process:
o Obtain order compelling discovery under 37(a)
o Move for sanctions under 37(b) for failure to comply with
order
o Unless party totally fails to respond sanctions may be
available immediately
Must make good faith attempt to resolve matter first
Duty to Preserve Evidence: Spoilation
Silvestri v. General Motors Corp. (4th Cir. 2001)
Not really governed by FRCP
Discretion was not abused in dismissing Ps action for Ps failure to
preserve the sole piece of evidence in a products liability action
claiming that the cars airbags did not deploy as warranted

29

Spoilation rule: duty to preserve exists in anticipation of ligation, not

just during
Spoilation = destruction or material alteration of evidence or failure to
preserve property for anothers use as evidence in pending or
reasonably foreseeable litigation
Power to impose: inherent power of the court
Zubulake v. UBS Warburg LLP (S.D.N.Y. 2003)
Articulates test for what duty to preserve involves and when it kicks in
= template for subsequent cases involving discovery of electronically
stored info
o Trigger date (when does duty to preserve attach?)
Relevant people anticipate litigation
o Scope (what evidence must be preserved?)
What they know, or reasonably should know, is
relevant to the action
Whose documents must be retained?
Those likely to have discoverable info that
disclosing party may use to support its claims or
defenses
What must be retained?
All relevant documents in existence at the time
the duty arose and any created thereafter
Summary of preservation obligations
Once party reasonably anticipates litigation,
must put in litigation hold have to tell
employees to stop document destruction policy
for evidence relevant to action
Distinction between backup tapes
Only archive types must be retained (not
emergency backup)
Three part test on whether adverse inference instruction is an
appropriate remedy for spoliation
o Duty to preserve
o Culpable state of mind
This circuit negligence counts
But relevance must be proven by party seeking
sanction
If intentional/willful not necessary to prove
relevance
o Evidence was relevant = would have been favorable to P
P has to show what cant get hands on would have been
beneficial

30

Pre-Trial Alternatives to Adjudication

Summary Judgment

Challenges truth of allegations match up evidence with substantive law

elements
Either side can move for summary judgment

FRCP 56
o Allows early resolution of cases in which P meets minimal burden to plead
elements of claim, but cannot prove one or more of those elements
o Resolution of case (entry of judgment in favor of either party) appropriate
only if evidence demonstrates no disputed issues of material fact to be
tried and that MP is entitled to judgment on undisputed facts
Always make sure evidence being evaluated is actually relevant to
the cause of action goes to proving one of the elements
(c), (e) motion may be supported by affadavits, depositions, answers to
interrogatories, admissions, admissible documents
i. Need not be admissible at trial themselves curable problem of
inadmissibility, but if evidence attached is something that
cannot be put in a form that would be admissible at trial
Burden of opposing party only to show legally competent evidence upon
which jury could resolve factual issues in his favor
Second question: has the NMP done enough to entitle a reasonable jury to find
for the NMP?
Adickes v. Kress (U.S. 1970)
a. Has the moving party done enough?
b. Holding: Summary judgment was improper where Ds failed to foreclose
the possibility that policemen were present in a restaurant when P alleged
that they conspired with a waitress to refuse service while in the company
of blacks
c. Rule: Where evidentiary matter in support of the motion does not establish
the absence of a genuine issue, summary judgment must be denied even
if no opposing evidentiary matter is presented
Catrett v. Johns-Manville (US Ct. App., DC Circuit, 1985)
a. Makes strong argument that MP has to do something
Celotex Corp. v. Catrett (U.S. 317, 1986)
o Reverses Catrett says MP has to come up with basically nothing (but
has to go through effort of serving discovery request) can just point to
record to show NMPs absence of evidence
Rule 56 does not require that MP support motion with
affadavits/other materials negating opponents claim, may be
discharged by showing absence of evidence to support NMPs case
56(c)(1)(b) test
o The fact that Ps evidence may be inadmissible is not itself fatal
o Policy: purpose of SJ to isolate and dispose of factually unsupported
claims/defenses

31

o Impact: SJ against Ps more likely to be granted

o Means: If case gets to JNOV, then someone was mistaken about not
moving for SJ (because at SJ parties have the same burden of production
as they will at trial)
Bias v. Advantage International Inc. (F.2d 1990)
o Agency failed to take out life insurance claim
o Key issue concerning if there is a genuine issue?
Whether or not he was a drug user
MP included testimony of teammates that say him use
drugs (enough to get to question 2)
Ps produced testimony of coach, parents, drug tests (is it
enough if only thing juries were confronted with to entitle
to find for Ps) = no
Whether there were insurers that would have supplied
= whether there was any cognizable legal damage
o NMP must show more than metaphysical doubt as to material facts
o Not mainstream down the middle case
o When addressing second question, look at NMPs evidence in light of
Ds evidence prevailing opinion is look at just NMPs evidence in light
of MPs
Visser v. Packer Engineering Corp. (7th Cir. 1991)
For an employment discrimination claim, P can make a lesser
showing than but-for causation (only needs to show enough
evidence to show age was a substantial factor in firing)
o Ameliorate a particular roadblock Ps face in these types of
cases
o Once the P establishes that he was discharged in substantial
part due to age, the burden shifts to the employer to prove
that it would have made the same decision absent the
discriminatory motive
Holding: NMP has not done enough to avoid summary judgment in an
employment age discrimination action where he only has affadavits of
which the pertinent parts are outside their personal knowledge (not
admissible)
Need not consider MPs evidence because P has no evidence to
support claim (D would be entitled to JNOV)
o Spillinger says they did have it, but they didnt want to deal
with complicated issue
Criteria for granting summary judgment in employment discrimination
case:
o Q1: Whether P has demonstrated existence of mixed motives
o Q2: Whether no reasonable juror could find that the
illegitimate motive was not a but-for cause of the unlawful
firing
1) D(MP): Has D done enough under Celotex? 2) Has P shown (given enough
evidence for a reasonable jury to conclude) age was substantial factor? 3)

32

Would a reasonable juror have to find for D in absence of opposing evidence

(Does D have non-discriminatory cause for firing?) 4) Could a reasonable
jury still find for P? (if yes, then summary judgment should be denied) if
Posner had done this all the way through, no way summary judgment could
have been granted. He understood this, but had to say Ps showing was not
enough for substantial factor

1) Has D (MP)
done enough
under Celotex?
-If yes, move
onto Q2
-If no, deny SJ

2) Has P (NMP)
given enough
evidence to
entitle a
reasonable jury
to conclude age
was a substantial
factor?
-If yes, move on
to Q3
-If no, grant SJ

3) Would a
reasonable juror
have to find for D
in the absence of
opposing
evidence?
(Does D have a
non-discriminatory
cause for the
firing?)
-If yes, move on to
Q4
-If no, deny SJ

4) Could a
reasonable jury
still find for P?
-if yes, deny SJ
-if no, grant SJ

b. Pre-Trial Conference, Pretrial Order, and Judicial Management?

c. An Anatomy of Alternative Dispute Resolution Mechanisms

Trial
Jury Rationality and Limits on Jury Power
Jury:
o Only what they hear in courtroom
o Not required to reach conclusion by a defensible route
Judge:
Must find facts specially and state its conclusions of law separately
Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911)
The trial court should have directed a verdict for the D where the P
failed to show by a preponderance of the evidence that the cow entered
the right of way through a hole in the fence (Ds fault)
If two explanations are equally plausible, there is no rational basis for
jury to decide which one happened

Judgment as a Matter of Law (Directed Verdict, JNOV)

Timing

P has been
fully heard

D has been
fully heard

Verdict has been returned from jury

33

Who can
File motion

Standard of
Review

Result if
motion
granted

50(a)(1) D
typically
files for
pre-verdict
JML
No rational
jury could
find for P
on the basis
of the
evidence

P can file for

pre-verdict
JML, or D
can try again

Directed
verdict

Directed
verdict

No rational
jury could
find for NMP

50(b) Party may

only file postverdict JML if filed
pre-verdict motion
renewed motion
No rational jury
could have decided
(allowed to weigh
evidence)

Judgment
notwithstanding
the verdict (JNOV)

Party may file postverdict JML, or new

trial in the
alternative
Erroneous jury
verdict: Jury verdict
is against the great
weight of the
evidence (okay to
consider demeanor
and credibility)
Also can be granted
for Procedural defect
or can grant
partial/conditional
new trials
Spill: definite and
firm conviction that
mistake has been
made
-complexity of
issues
-credibility
Judge must rule on
both JML and new
trial (conditional)

Rule 50

(c) common for MP to move to JNOV and in the alternative a new trial
(but JNOV is preferred)
a. Gives specific instructions about what happens when
conditional motion is made for JNOV or New Trial
(Directed Verdict) If a party has been fully heard on an issue during
jury trial and court finds no reasonable jury could find for party on that
issue, court may:
b. Resolve against the party, AND
c. Grant a motion for judgment as a matter of law
D typically moves after Ps evidence,
o Judge may withdraw case from jury and enter judgment as a matter of
law
if loses, then moves again after Ds evidence
o Challenges sufficiency of all the evidence
P may also move but not until after Ds evidence

34

Judge may not determine credibility of witnesses only whether jury, if chose
to believe, would have sufficient evidence to support verdict for P

Contrast with Summary Judgment:

{In summary judgment, unlike with directed verdict, the moving party must make
a showing as well. If the moving party in a summary judgment hasnt done so,
then the non-moving partys failure to meet her burden of production shouldnt
result in summary judgment.}
JML more leeway to weigh evidence b/c have seen and heard live witnesses
no reasonable jury v. no genuine issue of material fact
Renewing Motion after Trial (JNOV)
Can only happen if party moved after Ps evidence
a. Allows for defects in case to be cured by requiring under
50(a)(2) that MP specify ground for motion
Pennsylvania Railroad v. Chamberlain (U.S. 333, 1933)
a. JNOV was proper where the P provided only one witness with
inferences, rather than direct conflict of fact
b. When proven facts give equal support to each of two
inconsistent inferences, must go against P no jury could
reasonably conclude one or the other from testimony
c. Spill: Court improperly questions credibility of the witness
d. If in a jurisdiction that allowed witness testimony for the truth
of what is being offered and could entitle a reasonable jury to
find the other way then could be a different result
Traditional Analysis: consider ONLY the evidence offered by the
NMP
However, it is common for judges to take into account MPs evidence
but only if it makes the NMPs evidence seem minimal in contrast
Avoids problem of 7th Amendment disallowing reexamination of fact
already tried by jury (makes it a delayed decision instead)
Protects neutral principles of law from powerful forces outside scope of
law compassion and prejudice
Railroad v. Stout
There was no dispute about the facts of the child having his foot
crushed in Ds railroad turntable, but went to the jury to decide
whether it amounted to negligence jury entitled to find this == JNOV
not appropriate
Question to ask for whether something is a jury question or not: is it
the kind of issue that we want decided on a uniform basis (a legal
standard we can all look to) or one that should be decided on a caseby-case basis?
Verdicts and New-Trial Motions
A party moving for either new trial or order altering judgment must file no
later than 28 days after judgment

35

59(d) court may grant new trial entirely on its own initiative or for a reason
not stated in moving papers
Lots of devices for keeping cases out of the hands of juries
Difference between JNOV and New Trial:
o New Trial type that is based on contention that the verdict was
against the weight of the evidence
Not a judgment, just a new trial
Okay for judge to consider demeanor and credibility where
its not for JNOV case
Less stringent standard (more intrusive?)
o JNOV as a matter of law showing by NMP was not sufficient to
entitle a reasonable jury to find for her
Ruling of law (not fact-finding): only that evidence provided
by NMP does not reach the legal standard required to entitle a
reas.jury to find for her
What justifies granting a new trial?
o Jury made a mistake way to correct without wholly disrespecting
jury trial
o Gives judges the right to grant a new trial based on the fact that they
saw the evidence differently than the way the jury did? (not supposed
to apply 13th jury standard)
Two types:
o Error in Trial process
Admitting evidence it shouldnt have (losing party doesnt like)
Improper instructions
Improper juror contacts with witnesses
This can apply even when its a bench trial
o Verdict was against the weight of the evidence
Clearly erroneous result
Necessary to prevent injustice
Less costly than appeal
Judge would rather have the verdict come out from a jury the way he thinks it
should rather than himself
o Avoids appeal likely after judge verdict
o Avoids apparent intrusion
Rule 59
Lind v. Schenley Industries (3d Cir. 1960)
o Lower court granted motion for new trial because it found jury verdict:
Contrary to the weight of the evidence
Contrary to law
A result of error in the admission of evidence
o New trial standard: trial court has definite and firm conviction that a
mistake has been made by jury
o Appellate court standard of reviewing grant of new trial:
Abuse of discretion (pretty limited standard) generally dont
have a good chance on appeal deference to lower court

36

o Trial judge should consider:

The character of the evidence
Complexity or simplicity of the legal principles
o In this case, appellate court says that it was not contrary to law or an
error of admission of evidence, thus only left with the first issue then
determines that the trial court judged the credibility of witnesses for
the jury something the jury is entitled to find abuse of discretion
o If evidence is close, should deny motion for new trial
Damages
o Can grant new trial for just the issue of damages
o Can reduce amount (remittitur) unless P agrees to accept reduced
damages
o Additur violates 7th Amenment

Appeal

Principles:
o Fairness parties should win or lose depending on compliance with
procedural rules/quality of argument
o Justice right party should prevail, regardless of technicalities
o Heavy presumption that trial court decision is correct

The Final Judgment Rule

A party may appeal only final judgments of the trial court one which ends the
litigation on the merits and leaves nothing to do but execute the judgment; all
issues must have been resolved
Usually only 30 days to appeal
28 U.S.C. 1291
o Grants jurisdiction for appellate courts to hear appeal
o Codification of final judgment rule

Exceptions:
FRCP 54(b) allows for final judgment entered on one of multiple claims to be
appealed
2 basic requirements:
1) judge enter judgment on discrete claim for relief
2) judge expressly indicate there is no reason to delay entry of
judgment
Liberty Mutual Insurance Co. v. Wetzel (1976)
Problem in this case: court found 54(b) satisfied but there was only
one claim (confused having multiple claims of relief with having
liability and relief)
Court thought that if it entered judgment on liability, that was
appealable but failed to enter judgment on remedy but needed to
determine what relief granted in order for there to be a final

37

judgment not appealable (so app. Ct. could not properly hear the
case)
o Grant of 12(b)(6) is immediately appealable because it is a final judgment,
but a denial is NOT
If there are two claims and one is dismissed under 12(b)(6) Rule
54(b) suggests that one might be immediately appealable but
depends on the district court
o Court expressly has to determine no just reason to delay appeal; if they
dont, then no basis for immediate appeal
o If D loses the case at trial, D can assign (include) issues on anything that
happened adversely to him from the beginning to end as one of the
errors BUT practically not likely to get a lot of solace from appellate
court on these things.
The Collateral Order Doctrine
o Applies to order that are so important they need to get to appeal right away
o E.g. choice of forum clause in business contract; questions of qualified
immunity
o Situations where it is unfair to subject D to litigation because asserted
right cannot be vindicated on appeal (e.g. QI - should not have been
subjected to litigation in the first place)
Interlocutory Appeals
o Something that is subsidiary to final judgment does not completely
resolve the case.. can occur any time in litigation
o E.g. discovery rulings, motion for SJ, new trial
Certification under 28 U.S.C. 1292(b)
Permits a district court to certify interlocutory appeals from nonfinal judgments
Criteria:
Order must involve controlling question of law about which
there is substantial ground for difference of opinion
Trial judge must determine that allowing an immediate
appeal might materially advance the ultimate termination of
the litigation
Trial judge may certify in writing that both of the above are
satisfied discretion of trial judge
Appealing party must apply within 10 days of entry of
order
Appellate court must agree to hear issue on appeal
discretion of appellate court
o If district court certifies that justice requires immediate appeal
o Writ of mandamus: higher courts orders that lower court send up record.
Only available in exceptional circumstances
Does not involve consent of trial court

38

Scope of Review
o Issues of law
Can be reviewed de novo fully reviewable
E.g. 12(b)(6); summary judgment after Ps evidence
o Findings of fact
New Trial Motion
Abuse of discretion (deference to trial court): no possible
reasonable basis for the decision
Most difficult standard for appellate to surmount trial
judge heard the evidence
FRCP 52 bench trial
Clearly erroneous: can only reverse if convicted trial
court is incorrect
o Cannot reevaluate credibility of witnesses
Because findings of fact are so explicit, more digestible
task than basis for jurys verdict
o Ancillary rulings or application of general legal standards to numerous
issues that come up that judge has to rule on
Abuse of discretion standard
E.g. motion for separate trial something the trial court has to
make a quick decision on (Kopman v. McCormick)
Rule 52
o (a) in a non-jury trial, the judge must explicitly state findings of fact and
conclusions of law upon which it bases the verdict
o (c) if a party has been fully heard on issue during a nonjury trial, court
may enter judgment against the party on a claim or defense that requires a
favorable finding on that issue
Must state findings of fact and conclusions of law
Pullman-Standard v. Swint (1982)
o Appellate decision reversed where they applied the wrong standard of
review to the trial courts finding that there was no discriminatory intent in
Ps Title VII case
o Appellate court said that trial court should have taken into account
motivations of smaller bargaining unit that is a question of law and fine
to review de novo (whether evidence is relevant to the case)
o But then appellate court went ahead and found discriminatory intent
Supreme Court says you cannot subject to de novo standard (should have
used clearly erroneous standard)
Harmless Error
o Does not affect the substantial rights of the parties consider likely
outcome of case in absence of error
Not prejudicial
o If harmless, Fed. Courts forbidden to reverse
Harden v. Jayco, Inc. (6th Cir. 2007)

39

District court granting SJ for Ds in case of car defect based on

inadmissible report was harmless error because MP could have
easily gotten it in admissible form and would have been the same
outcome
o Another example: judge saying something it shouldnt have but that
doesnt make a difference to the jury

Authority to Adjudicate in a Federal System: Personal

Jurisdiction
Valid PJ must be established for EVERY D
If valid for one claim, then valid for the others
1) Is it Constitutional?

a. General: Does D have pervasive contact

with the forum state?
-if so, can be sued for anything there
b. Specific: Does D have sufficient
minimum contacts with forum state? (make
sure event being sued for arises out of
contacts)
-purposeful availment: requires some
purposeful activity towards forum state
stream of commerce
contract negotiated and/or
performed
knowledge not enough (Pavlovich)
-includes Consent: P who files suit in
forum consents to PJ for all matters arising
in that lawsuit, inc. counterclaims & crossclaims
c. Tag Jurisdiction: if not by force or fraud,
can be sued for anything if served while in
state
-Scalia: minimum contacts test does not
apply to D who is present in state
-Brennan: Ds voluntary presence + service
= general jurisdiction

2) Does the Long-arm Statute in this state

allows courts to assert J in this
circumstance?
a. CA: a court may exercise J on any basis
not inconsistent w/ the Constitution of CA
or US
b. Florida: a D who is engaged in
substantial and not isolated activity
within this state, whether such activity is
wholly intrastate, interstate, or otherwise,
is subject to the jurisdiction of the courts
of this state, whether or not the claim
arises from that activity
-Gibbons: previous suing substantial;
two years prior is engaged

Origins:
Pennoyer v. Neff

40

o Mostly superseded by International Shoe

o Constructive notice while D was not in the forum state not sufficient for
due process
Opinion says nothing meaningful about notice because at the time,
PJ and notice went hand in hand
o PJ at the time was established by:
Presence in the state (in personam) standard lawsuit to adjudicate
Ps rights
Residence means are they physically present in state, not do
they have property there
Property in the state (in rem) judgment only up to the value of
property, and property must be attached
Pure/True in rem purports to adjudicate rights to
property against all the world
o E.g. probate, registration of title
Quasi in rem purposes other than determining competing
rights to property
o Type 1: Subject matter is the property (claim arises
out of or is otherwise related to the property)
Only against named Ds (who has title of
land)
E.g. quiet title
o Type 2: Attachment jurisdiction/ sequestration
freezing assets to get D to appear
Lawsuit must be initiated by attachment
(cant attach later) would have been
applicable if was done right
Common use today: freeze bank account
o Collateral attack: Lack of PJ is the only universally accepted basis for
refusing to give FFC to first case
U.S. Const. art. IV 1 (Full Faith & Credit clause)
U.S. Const. amend. xiv 1 (Due Process clause)
Challenging PJ:
o Better off to show up and raise defense, because if you are wrong about
your objection, then default judgment stands
o Objection: 12(b)(2) showing up without really showing up

Minimum Contacts and Its Discontents Question 1: Is it Constitutional?

International Shoe Co. v. Washington (1945)
If D is not within state: must have minimum contacts w/ it
such that maintenance of suit does not offend traditional
notions of fair play and substantial justice
Presence must be systematic and continuous

41

D received benefits and protection of laws of state gives

rise to obligations suit arose out of those activities in the
state sufficient contacts

Specific v. General Jurisdiction

Specific Jurisdiction: contacts that D has with forum are
sufficient to justify a jurisdiction over D for causes of
action that arise out of those connections
a. The more closely related the contacts and the facts
giving rise to the claim, the more likely the court is
to uphold jurisdiction
General Jurisdiction: partys connection with forum are so
pervasive, we say they can be sued for anything there
a. E.g. domicile, PPB, state of incorp.
b. BUT see Burham: presence when served
sufficient for general jurisdiction
World-Wide Volkswagen Corp. v. Woodson (1980)
Facts: A family that purchased a car in New York sued the
auto manufacturer and retailer after they became involved
in an accident in Oklahoma while driving to Arizona.
Specific Jurisdiction case
Side note: contesting jurisdiction as lawyering strategy to
keep in state court (PJ must be established for EVERY D)
No PJ because the lawsuit must be foreseeable, not that a
car would end up in OK
D did not purposefully direct products into stream of
commerce no purposeful availment
Dissent. Justice Brennan dissented. He found that the
courts over-reliance on contacts between the defendant
and the state obscures whether being subject to a suit there
would actually cause any inconvenience to the defendant.
Additionally, he found that because the interest in having
the suit in Oklahoma was strong, given that the plaintiffs
were hospitalized there and key witnesses resided there,
jurisdiction should have been granted
a. Focus on fairness to Ds, but what about Ps? local
evidence, interest of forum state
Burger King Corp. v. Rudzewicz (1985)
Facts: Plaintiff, a Florida corporation, and Defendants,
Michigan residents, had a franchise agreement specifying
that Defendants may be subject to suit in Florida. Plaintiff
sued Defendants in Florida federal court based on diversity
of citizenship for non-payment under the franchise
agreement. Defendants moved to dismiss on the grounds
that Florida did not have personal jurisdiction over
Defendants.

42

Cause of action: trademark violation once franchise wasnt

meeting goals but kept selling
Brennans quid pro quo franchise willingly entered
contract with Florida corp. brought themselves under
protection of Florida law only fair to subject them to
Florida courts
a. Associating in such a way that you get the benefit of
their law
Spill not convinced: Not Florida law that allows them to
incorporate, more convinced if know party has a
relationship that you could be subject to litigation there
Pavlovich v. Superior Court (Cal. 2002)
Not the typical website case passive, not active content
(no interactivity)
a. Dividing concept seems to be
interactive/solicitation kinds of concepts
Purposeful availment requires some purposeful activity
towards the forum (knowledge of effects on 3rd party
industries not enough)
J. McIntyre Machinery, Ltd. V. Nicastro (2011)
Facts:
a. English co. sold only to U.S. dist. not under their
control
b. Attended annual conventions in other states
c. Only four machines ended up in NJ
According to plurality, it is a violation of the rights of the
British manufacturer to subject to jurisdiction of NJ
because cant say manufacturer purposefully directed its
product to NJ
Dont want stream of commerce to open up to litigation
anywhere
Troubling point: person at the beginning of chain (big
entity with deep pockets) cannot be held to account in
forum where P is injured
Minimum contacts must somehow involve purposeful
DIRECTION of product to particular forum
Example of how jurisdictional opinions focus on rights of
D
Goodyear Dunlop Tires Operations, S.A. v. Brown (2011)
Purchases of tires at regular intervals not the kind of
continuous and systematic general business contacts
necessary for general jurisdiction
Burnham v. Superior Court (1990)
Says the International Shoe did not mean to get rid of
presence in the state as sufficient for general jurisdiction
(just saying it wasnt necessary)
43

Transient/tag jurisdiction is valid according to this case if

not by force or fraud

Notice and Service of Process

o Order:
File complaint w/ court before serving
When file, get summons, then copy of complaint and summons are
served on D
FRCP 4
4(c) about actual service of process
4(d) obviates need to do this in most cases
Can dispense with personal service if simply mail copy of
complaint along with two copies of the form asking to
waive service
If they respond in timely manner, then absolved of personal
service and they have 60 days instead of 20
4(e) other ways that service of process
(1) can do any way that state law provides for e.g. if they
have mail service, then could be valid in fed. Court fed.
Dist. court can take occasion of states mode of service of
process
4(m) can take 120 days
Everything specified in Rule 4 exceed Constitutional threshold
for whats adequate
Must be reasonably calculated to notify usually comes up
in class actions
o Class Actions
Long-Arm Statutes Question 2: Does it comply with the long-arm statute?
o Probably most significant where statute authorizes jurisdiction over Ds
that do things out of state but have effects within the state
E.g. economic activity
o Most long arm statutes distinguish between resident and non-resident
defendants
o 4(k)
o Gibbons v. Brown
Held: D was not engaged in activity in state w/in meaning of the
long-arm statute
Florida long-arm statute: requires more activities or contacts to
allow service of process than are currently required by US
Supreme Court decisions
Defendant Mrs. Brown was injured in an auto accident in a car
driven by her husband, due to faulty directions given by the other
passenger, Plaintiff Gibbons. Following Plaintiffs Florida lawsuit
against Mr. Brown, Defendant filed suit in Florida against Plaintiff
to recover for her own injuries in Florida. Issue: Can Mrs. Brown
sue Gibbons in FL?

44

Constitutional?
Probably not. The court case alone is not enough to establish
minimum contacts and therefore, personal jurisdiction under the
Constitution.
Court does not choose to deal with this issue.
Valid under the long arm statute?
Court holds that Florida does not have personal jurisdiction
over D. FL long arm statute asserts less than the full extend that is
constitutionally allowed.
Substantial and not isolated - previously suing in the state is not
is not substantial and is isolated
Is engaged - the lawsuit was brought two years before.

Venue
1) Determine where
each party resides
-if this is different
from domicile, go
with domicile
Aliens 1391(c)(3)
-nonresidents can be
sued in any district
-permanent
residents treated like
U.S. citizens who
reside in judicial
district
Corporations
-deemed to reside
wherever subject to
PJ
-multidistrict states:
use district with
most significant
contacts
-can be sued in any
district in state of
Inc.

2) Are all Ds
residents of the
state in which
district is located?
OR 3)
*remember, PJ still
must be satisfied

3) Did a substantial
part of the events
or omissions giving
rise to the claim
occur in the district?
Substantial =
relevant to Ps claim

4) If NEITHER (2)
or (3) is satisfied,
then where could
ANY D be subject
to PJ?
*remember, if any
D is not subject to
PJ, they can have
the action dismissed
for lack of PJ

Not a Constitutional requirement, but a housekeeping thing

Waivable 12(b) defense
Not personal (like PJ)
28 U.S.C. 1391
o Method:

45

(b)(1) are they residents of the state?

(b)(2) substantial part of events?
(b)(3) where could any D be subject to PJ? = ANY district in
which ANY D could be subject to PJ
BUT only use if first two cannot be used
o (c) supplies rules for alien problems
Could have a situation in which venue is appropriate, but PJ is not satisfied

Completed Adjudication: The Doctrines of Res Judicata and

Collateral Estoppel
Res Judicata (Claim Preclusion): forbids a party from litigating a claim that
was or could and should have been raised, in former litigation
o The Different Theories: Same Cause of Action vs. Same Transaction
Frier v. City of Vandalia (7th Cir. 1985)
Second claim 1983 barred where already litigated
replevin action
Common core of operative facts (same set of
circumstances) not the exact same claim, but could have
brought it and didnt
Dissent: should use same evidence test (slightly more
narrow) = older, archaic test
Must distinguish: that adjudication has taken place in the first case
v. which states law governs preclusion of the second claim
Claim preclusion cannot operate to bar a claim that you could not
have brought in case one
Also applies to counterclaims, BUT must look to the law of the
rendering court for what the preclusion rules are on that
Fed court uses same transaction or occurrence test
U.S. Const. Art. IV, 1
28 U.S.C. 1738
Such acts, records, and judicial proceedings shall have the
full faith and credit in every court in the US as they have by
law or usage in the courts from which they are taken
Court in case 1 = rendering court
Court in case 2 = recognition court
o Bound to apply the law of preclusion of the
rendering court
o Applies to fed. Courts as much as state courts
Identity of Parties: Privity and Representation
Searle Brothers v. Searle (Utah 1978)
Actually a case of issue preclusion, not claim preclusion
because parties are not actually the same

46

Question of whether the parties were in privity

(functionally the same) one whose interest has been
legally represented
Majority unwilling to say they were in privity without
knowing more about the partnership litigate
Common example of in privity: new landowner; administrator of
trust; class action; trade association
No duty to intervene
Claim preclusion cannot operate unless first case was decided on
the merits
Taylor v. Sturgell (U.S. 2008)
Rejects virtual representation for antique airline
enthusiasts, even when it would promote efficiency
o Stare decisis will dispose swiftly of repetitive suits
Compare preclusion v. precedent
o Precedent: loose
o Preclusion: unforgiving
Nonparty preclusion exceptions:
o Agreement by parties to be bound by prior action
o Preexisting substantive legal relationship (e.g.
successive property owner)
o Adequate representation by someone with same
legal interests who was a party (e.g. trustees,
guardians, etc.)
o A party assuming control over prior litigation
o A party who loses a suit and then sues again a
representative of a class
o Special statutory schemes (e.g. bankruptcy
proceedings)
Final Judgment and Judgment on the Merits
If case is dismissed on the merits thats it; if its for jurisdiction,
then could bring again in different court
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th Cir. 1990)
Claim that would not have had original jurisdiction in state
law because exclusive federal jurisdiction not precluded
because looking to Ohio state law, they do not give
preclusive effect to state courts having no subject matter
over original claim
Federal rule DOES give preclusive effect to prior state
courts giving judgment even within exclusive jurisdiction
of federal courts
Dismissal of claim for sanctions not really on the merits
but treat it as such otherwise useless as a device
Collateral Estoppel (Issue Preclusion) estoppel by verdict: some issue in the
claim already previously litigated

47

o What is an Issue?
Something factually crucial to the claim, or an element of the claim
E.g. whether someone has a valid drivers license; contributory
negligence
o Actually Litigated and Determined
Illinois Central Gulf Railroad v. Parks (N.E. 1979)
No issue preclusion where there was no way to know
precisely how the case failed in the jurys eyes
Party desiring to plead judgment as estoppel by verdict or
finding upon particular fact must show it judged on that
fact
Illustrates the principle that an issue has to be ACTUALLY
litigated to be precluded in case two (different from claim
preclusion)
Distinguish claim preclusion v. issue preclusion
Default judgment: if suffer default judgment in first case,
can be precluded later from asserting claims you could
have brought there.
But issues (e.g. negligence, causation) could not be subject
to issue preclusion because they were not actually litigated
o Essential to the Judgment
Mutuality and Nonmutuality
Mutual: both parties in Case 2 must have been parties in Case 1
Nonmutuality: (most states) person against whom preclusion is asserted
must
have been a party in Case 1 (except in cases of privity)
The Precluder
Parklane Hosiery Co. v. Shore (U.S. 1979)
o Both parties dont have to be the same (just the one
its being asserted against) rule in most if not all
states now
o Decides to recognize collateral estoppel
Exceptions:
Where there are outstanding
inconsistent judgments
If in fact case one was decided under
rules of procedure that are
substantially different and less in
case one than would be available in
case two, strong case for not
permitting issue preclusion to second
case
o E.g. small claims court
o Distinctions between offensive and defensive issue
preclusion

48

Offensive: P seeks to estop D from

relitigating issues which D previously
litigated and lost against another P
Multiple Ps going after one D
Gives P incentive to wait and see
Defensive: when P is estopped from
asserting claim previously litigated and lost
against another D
E.g. patent infringement
Single P going after several Ds
Prevents relitigating issues simply by
switching Ds strong incentive to
join all potential Ds
o 7th Amendment issue of right to jury trial: no reason
to think in civil case it makes a real difference no
constitutional issues

49

1
15 U.S.C. 78u-4(b)(1)(B) 12

2
28 U.S.C. 1291 37
28 U.S.C. 1292(b) 38
28 U.S.C. 1331: 3
28 U.S.C. 1332 4
28 U.S.C. 1367 6
28 U.S.C. 1441(a), (b), (f), 1446(a), (b), 1447
9
28 U.S.C. 1738 46
28 U.S.C. 1391 45

A
Adickes v. Kress (U.S. 1970) 31
Ashcroft v. Iqbal (2009) 11

B
Beeck v. Aquaslide N Dive Corp. (8th Cir. 1977) 19
Bell Atlantic Corp. v. Twombly (2007) 11
Bias v. Advantage International Inc. (F.2d 1990) 32
Bonerb v. Richard J. Caron Foundation (W.D.N.Y.
1994) 20
Burger King Corp. v. Rudzewicz (1985) 42
Burnham v. Superior Court (1990) 43

C
Catrett v. Johns-Manville (US Ct. App., DC Circuit,
1985) 31
Celotex Corp. v. Catrett (U.S. 317, 1986) 31

F
FRCP 10 11
FRCP 11 13
FRCP 12 15
FRCP 13 17, 18
FRCP 15(a) 19
FRCP 15(c) 19
FRCP 26(a) 23
FRCP 26(b)(1) 21
FRCP 26(b)(1) and (5) 22
FRCP 26(b)(3) 28
FRCP 26(b)(4) 29

FRCP 26(g) 29
FRCP 33 24
FRCP 34 26
FRCP 35 27
FRCP 36 27
FRCP 37 29
FRCP 4 44
FRCP 54(b) 37
FRCP 55 15
FRCP 56 31
FRCP 7 (a) 10
FRCP 7(a) 18
FRCP 8 10
FRCP 8(b) 16
FRCP 8(c) 17
FRCP 8(d) 13
FRCP 9(b) 12
Frier v. City of Vandalia (7th Cir. 1985) 46

G
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (6th
Cir. 1990) 47
Golden Eagle v. Burroughs (9th Cir. 1986) 14
Gomez v. Toledo (1980) 15
Goodyear Dunlop Tires Operations, S.A. v. Brown
(2011) 43

H
Haddle v. Garrison (1998) 11
Haddle v. Garrison complaint 11
Harden v. Jayco, Inc. (6th Cir. 2007) 39
Hawkins v. Masters Farms, Inc. 5
Hertz Corp. v. Friend (2010) 5
Hickman v. Taylor (U.S. 495, 1947) 28

I
Illinois Central Gulf Railroad v. Parks (N.E. 1979)
48
In re Ameriquest Mortgage Co. Mortgage Lending
Practices Litigation (Ill. 2007) 7
International Shoe Co. v. Washington (1945) 41

J
J. McIntyre Machinery, Ltd. V. Nicastro (2011) 43
Jones v. Bock 15

50

L
Layman v. Southwestern Bell Tel. Co. (Mo. App.
1977) 17
Leatherman v. Tarrant County Narcotics (1993) 13
Liberty Mutual Insurance Co. v. Wetzel (1976) 37
Lind v. Schenley Industries (3d Cir. 1960) 36
Louisville & Nashville Railroad v. Mottley (1908) 4

M
Mitchell v. Archibald & Kendall (7th Cir. 1978) 11
Moore v. Baker (11th Cir. 1993) 19

P
Parklane Hosiery Co. v. Shore (U.S. 1979) 48
Pavlovich v. Superior Court (Cal. 2002) 43
Pennoyer v. Neff 40
Pennsylvania Railroad v. Chamberlain (U.S. 333,
1933) 35
Pullman-Standard v. Swint (1982) 39

R
Railroad v. Stout 35
Redner v. Sander (S.D.N.Y. 2000) 5
Reid v. San Pedro, Los Angeles & Salt Lake Railroad
(Utah 1911) 33
Rule 50 34
Rule 52 39

Silvestri v. General Motors Corp. (4th Cir. 2001) 29

Steffan v. Cheney (D.C. Cir. 1990) 22
Stradford v. Zurich Insurance Co. (S.D.N.Y. 2002) 11
Szendrey-Ramos v. First Bancorp (2007) 7

T
Taylor v. Sturgell (U.S. 2008) 47

U
U.S. Const. amend. xiv 1 (Due Process clause)
41
U.S. Const. Art III, 2 3
U.S. Const. Art. IV, 1 46
United Mine Workers v. Gibbs 7
United States v. Kubrick (1979) 17

V
Visser v. Packer Engineering Corp. (7th Cir. 1991)
32

W
World-Wide Volkswagen Corp. v. Woodson (1980)
42
Worthington v. Wilson (C.D. Ill. 1992) 20

Z
Zielinski v. Philadelphia Piers, Inc. (Pa. 1956) 16
Zubulake v. UBS Warburg LLP (S.D.N.Y. 2003) 30

Searle Brothers v. Searle (Utah 1978) 46

51