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Civil Procedure Outline: Fall 2009

µ  

 Procedure 2
Ì Personal Jurisdiction 2
 Subject Matter Jurisdiction 2
 Personal Jurisdiction 2
d Specific Jurisdiction: 2
iii Minimum Contacts Test 
4  

  
e General Jurisdiction 
f Consent to jurisdiction 4
   4
j Long arm statute: 4
 Venue 
d USC 191 - Diversity 
ii Federal question venue- section 191(b) Venue is proper only in the judicial district where: 
iii Corporations- section 191 (c) 
 Ì     
d 28 USC 11 ʹ Federal Question 
 Ã  ñell Pleaded Complaint Rule 
e 28 USC 12 - Diversity 
2 Amount in controversy: n addition, the case must involve an "amount in controversy" in  of 7 
f Article , MMAL DVERSTY is enough 
g Diversity for Aliens ʹ 
V 28 USC 17 - Supplemental Jurisdiction 
V 28 USC 1441 - Removal 7
i 1447(c) supplemental and non supplemental claims all move together when removed 8
V     8
f The substance/ procedural distinction: 8
i The Erie doctrine essentially provides that federal courts must apply state substantive rules of law except when deciding a
federal question and federal procedural law 8
h Rules Enabling Act - §2071 9
2 ñhen a federal rule conflicts with a state rule: 9
V Pleadings 9
b Rule 8 ʹ Complaints 9
d Rule 7a: types of pleadings 9
g Bell Atlantic Corp v Twombly 10
h qball 10
 Rubric of burden of proof 11

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vi Rule 8 c - affirmative defenses 11
vii Rule 11: 12
1 important for several reasons 12
l Responding to the complaint Rule 12 1
m Rule 1: amending pleadings 14
 Former Adjudication 14
b Claim Preclusion 1
1 Same claim 1
2 The ability to bring the claim in suit 1 1
 Same parties 1
4 Final judgment in suit 1 ʹ haven͛t taled about yet 1
c ssue Preclusion 1
1 Same issue (claim/fact 1
2 Actually litigated and determined 1
 Final judgment 1
4 ecessary to judgment 1
 Same parties? f not, is it one of the exceptions? 1
vii Difference between offensive and defensive use of issue preclusion: 17

‘ Procedure
 ‘ Federal courts have limited jurisdiction͙article  says what inds of cases can be filed in federal courts Diversity
jurisdiction = controversy between citizens of different states
Ì ‘ Personal Jurisdiction
 ‘ ñhat states can a ȴ be forced to show up and defend themselves in
 ‘ Court have authority to enter judgment in relation to this particular ȴ
 ‘ Subject Matter Jurisdiction
 ‘ The issue is the power of the court to hear this ind of case
 ‘ ñhen you͛re in federal court͙the outer boundaries of subject matter jurisdiction are set by article  of the
constitution
 ‘ Personal Jurisdiction
a ‘ Definition:
i ‘ ñhat state(s) can a ȴ be forced to show up and defend themselves in?
b ‘ Constitutional Basis:
i ‘ f the courts don͛t have personal jurisdiction over that person, they would violate the due process clause of
th
the 14 amendment
c ‘ istorically:
i ‘ n Personam: states have power over people within their state (non residents must be personally served with
process while within the state)
ii ‘ n Rem: state has power over a person͛s property present in the state Allows for service of process by
publication in a newspaper
iii ‘ Quasi in rem: allowing property to be attached to satisfy a claim unrelated to the claim ʹ up to the value of
the property Must be attached at the beginning of the lawsuit
1 ‘ (Pennoyer): established personal jurisdiction if person had property within the state
2 ‘ Property = a contact property does not establish jurisdiction because it is seized
 ‘ Shaffer says: no more quasi in rem jurisdiction
4 ‘ f you͛re proceeding against property only, that is pure in rem, not quasi in rem jurisdiction
d ‘ Specific Jurisdiction:
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i ‘ ot whether ȴ can be sued about anything in the state but whether the ȴ can be sued about this specific
case May be specific jurisdiction in more than one state͙ specific jurisdiction is always a case by case
analysis Must loo at the contacts with the state͙isolated contacts are not enough, but the word isolated is
a value judgment what you͛re suing/subject has to relate to the state
ii ‘ 1 contact can be plenty͙driving thru the state and hit a pedestrian, that 1 contact would be enough if the
lawsuit directly comes out of it ȴ doesn͛t have to be physically present in the forum state acts outside the
jurisdiction as long as they have an effect w/in the jurisdiction may be enough
iii ‘ Minimum Contacts Test
1 ‘ From  Shoe ʹ (Shaffer expands min contacts to in rem juris & gets rid of quasi in rem)
2 ‘ Does the suit offend traditional notions of fair play and substantial justice?
 ‘   
  
a ‘ PJ: if the ȴ have such minimum contacts with the state AD
b ‘ f it would be fair to require the person to defend the lawsuit in that state
4 ‘  

 
a ‘ g from anson v Dencla (trust created in Delaware while widow living in Pennsylvania
Beneficiaries are suing for jurisdiction after widow dies Florida cannot have jurisdiction
because the trust company did not purposefully avail itself of the privilege of conducting
activities in Florida TEST: Did the ȴ purposefully avail itself of the privilege of conducting
activities in the state
iv ‘
 
 re: PJ
1 ‘ McGee v nternational Life nsurance Co ʹ one contact can be sufficient, Texas Company accepted
payment for life insurance policy from California resident, subjecting the company to California
jurisdiction Accepting the payment is a substantial contact
2 ‘ anson v Dencla ʹ not sufficient contacts with a state They mailed checs from the Delaware trust
to Florida when the trustee moved The trust company did not purposefully avail itself of the
privilege of conducting business in the state
 ‘ Burger King v Rudzewicz ʹ minimum contact established when Michigan residents signed a franchise
contract with a Florida corporation
v ‘   
 
 re: PJ
1 ‘ ñorldwide Volswagen v ñoodson ʹ company sold car in ew Yor that exploded in Olahoma
Company did not purposefully avail themselves of Olahoma, they cannot now where their
products will end up through the stream of commerce, does not subject them to jurisdiction
everywhere Did the ȴ target his activities with respect to the forum state that maes it fair to bring
the suit?
2 ‘ Asahi Metal ndustry v Superior Court ʹ Tire blowout causes an accident Asahi, Taiwanese
manufacturer of tire valve assembly, is not subject to California jurisdiction by selling a product on
an international scale, they did not purposefully avail themselves of California This would also
offend our notions of fair play and traditional justice Even if they had minimum contacts͙it would
still be unfair Brennan was trying to sell his stream of commerce theory here, too
vi ‘ nternet & Personal Jurisdiction
1 ‘ Pavlovich v Superior Court ʹ Texas resident posted a trade secret on the internet California does
not have jurisdiction over the Texas resident for violating a California company͛s copyright
e ‘ General Jurisdiction
i ‘ Always jurisdiction in the state of domicile for individuals and in the states of incorporation and principal
place of business for corporations Anything to do with what you͛re doing?
ii ‘ Substantial Minimum Contacts
1 ‘ Domicile
2 ‘ Continuous and Systematic Activity in the Forum
a ‘ Perins v Benguet Consolidated Mining Company ʹ Phillipines company doing business in
Ohio, the owner moved there and conducted all business from Ohio General jurisdiction
because the owner continuously and systematically did business in the state (ot specific
jurisdiction because the claim doesn͛t have to do with the contacts the business made in
the state)
b ‘ Purchase is not continuous/systematic contact
i ‘ elicopteros acionales de Colombia v all ʹ no general jurisdiction, nor specific
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jurisdiction Texas citizens woring in Peru, contract negotiated in Texas and pilots
trained in the US is not enough to change that the contract said controversies
would be litigated in Peru o systematic and continuous contacts with Texas
 ‘ State of domicile
4 ‘ Presence must be voluntary
a ‘ Burnham v Superior Court ʹ Francie Burnham wanted a divorce from Dennis Burnham,
they agreed to file for divorce citing irreconcilable differences in California Dennis filed for
divorce in ew Jersey but never served his wife Francie filed for divorce in California and
served Dennis while he was in the state e was served in the state, so it͛s good according
to Pennoyer Good according to  Shoe because it is fair, oay with our traditional notions
of fair play and justice ͞f you can be found in a state, then there is general jurisdiction
over you͟
f ‘ Consent to jurisdiction
i ‘ General or specific jurisdiction over you because you gave implied/express consent
ii ‘ mplied Consent
1 ‘ ȴs can   Ì  
(not claiming that there is no jurisdiction) or by responding to complaint
2 ‘ Acting in a way that contradicts ȴ͛s claim of no jurisdiction
iii ‘ Express Consent
1 ‘ Forum Selection Clauses:
a ‘ Carnival Cruise Lines v Shute -
i‘ Court upholds forum selection clause on cruise ticet
ii ‘ 2 questions
iii ‘ is the contract enforceable?
iv ‘ is the forum reasonable
g ‘ Presence (voluntary):
i ‘ Burnham v Superior Court ʹ Ʌ in California for reasons other than the claim Court says jurisdiction over him
but disagree why
1 ‘ Brennan: minimum contacts test, Ʌ is voluntary there and was served while in the state = general
jurisdiction
2 ‘ Scalia: Don͛t need minimum contacts, enough that he was served while in the state (because of
Pennoyer)
 ‘ Stevens: easy case͙
h ‘ ow do you challenge PJ?  ways
i ‘ File rule 12b2 ʹ if you file any rule 12 motion then you must combine all rule 12 defenses with it per 12g or h
ii ‘ You can raise it by putting it in your answer
iii ‘ Collateral Attac - ñait until Ʌ gets a default judgment against you͙and then claim no PJ (but that͛s the only
defense you can claim)
 ‘  
i ‘ n addition to PJ͙ must give notice
ii ‘ Mullane Requirement and RULES Requirement
iii ‘ Mullane v Central anover Ban - s it practicable under the circumstances? Court says in Mullane that you
now where these people are͙you must do something to get the complaint to these people that you now
where they are but publication may be OK for the ȴs that you don͛t now the location of
iv ‘ Steps to otice
1 ‘ Rule 4m: 120 days to serve
2 ‘ Rule 4(d)
a ‘ ȴ may waive process
b ‘ May have to pay costs of process if they don͛t waive when ased
c ‘ Get longer to respond (0 rather than 20 days)
j ‘ Long arm statute:
i ‘ once min contacts are established, the state must still have legislation authorizing its courts to accept such
jurisdiction (some have unlimited that allows all constitutional bases of juris )

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ii ‘ Rule 41a ʹ pretend you͛re in state court even though you͛re in federal court f the state court could have
exercised jurisdiction, then you can, too So you must figure out the state long arm statute (usually that it is
consistent with the constitution)
iii ‘ Rule 41b ʹ anomaly
iv ‘ Rule 41c ʹ there may be broader jurisdiction than is allowed by 1a
v‘ Rule 42 is about disputes where no specific state may have jurisdiction, though they did something to affect
Americans
vi ‘ Gibbons v Brown - Gibbons, a Texas resident, was giving directions while Mr Brown, a Florida resident, was
driving, Mrs Brown was a passenger Gibbons sues Mr Brown in Florida 2 years later, Mrs Brown sues Ms
Gibbons in Florida because she gave bad directions o jurisdiction over Gibbons in FL 2 years later Florida͛s
long arm statue says she has to have substantial contact with the state, which it says she does not, though it
would be OK constitutionally FL law: your contact with the state must be substantial and not isolated activity,
which it is not, in part because Gibbons͛ lawsuit ended 2 years prior
 ‘ Venue
a ‘ Locality where case may be tried͙
b ‘ Venue rules attempt to allocate cases within a judicial system, federal or state, in a manner convenient for all Qs of
personal and subject matter jurisdiction are decided before venue
c ‘ Curing defects Jurisdictional defects may not be cured by the court's transfer of the case to a court having valid
personal jurisdiction, while venue defects can be cured by transfer to a court of proper venue
d ‘ USC 191 - Diversity
i ‘ Diversity venue- section 191(a) Venue is proper only in the judicial district where:
1 ‘ Any ȴ resides, provided that all ȴs reside in the same state;
2 ‘ Any substantial part of the events, omissions, or property concerning the controversy is situated; or
 ‘ The ȴs are subject to personal jurisdiction at the time the lawsuit is commenced, if there is no
district in which the action may otherwise be brought
ii ‘ Federal question venue- section 191(b) Venue is proper only in the judicial district where:
1 ‘ Any ȴ resides, provided that all ȴs reside in the same state
2 ‘ Any substantial part of the events, omissions, or property concerning the controversy is situated; or
 ‘ Any ȴ may be found, if there is no judicial district in which the lawsuit could otherwise be brought
iii ‘ Corporations- section 191 (c)
1 ‘ For purposes of applying sections 191 a and b, a corporation is deemed to reside in any judicial
district where it is subject to personal jurisdiction
2 ‘ f there is more than one judicial district in the state, then the corporation is deemed to reside in any
judicial district in that state within which its contacts would be sufficient to subject it to personal
jurisdiction if that judicial district were treated as an independent state
 ‘ f no such judicial district exists, then the corporation shall be deemed to reside in the judicial district
within which it has the most significant contacts
iv ‘ Dee- Enterprises, nc v eveafil Sdn Bhd - Statute that governs ͙Clayton antitrust says that as long as it is
not unconstitutional to sue someone in the US, then we͛re not worried about which state 191(b)() applies
e ‘ Forum on Conveniens
i ‘ Piper Aircraft v Reyno - Forums non conveniens is all about discretion Piper maes a plane, it crashes in
Scotland The pilot and  passengers all die, they are all from Scotland artzell maes the propellers in Ohio
Reyno is the executor of the estates, she͛s from California She brings the case in state court artzell and
Piper move to dismiss and try to remove the case to federal court, they successfully get it there Then they
move to change venue͙from California to Pennsylvania federal court n Pennsylvania they as for it to be
dismissed because it is not convenient to be there They argue Scotland is more convenient because physical
evidence there and the system of justice is better for these Scottish citizens to see justice in their courts
 ‘ Ì    
 ‘ The issue is the power of the court to hear this ind of case t͛s possible to have SMJ in state, fed, or both
Ì ‘ ñhen in federal court͙the outer boundaries of subject matter jurisdiction are set by article  of the constitution
c ‘ Original jurisdiction, cases begin in the SC for these types of cases -- very few cases
i ‘ Ambassadors
ii ‘ Other public ministers
iii ‘ Those in which a state shall be a party

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d ‘ 28 USC 11 ʹ Federal Question
 ‘ o amount in controversy requirement, it is concurrent jurisdiction
 ‘ District courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties
of the U S
 ‘ à  ñell Pleaded Complaint Rule
1 ‘ Ʌ must state cause of action is based upon federal laws or the Constitution
2 ‘ Louisville & ashville Railroad v Mottley ʹ ͞A suggestion of one party that the other will or may set
up a claim under the Constitution of laws of the United States, does not mae the suit one arising
under that Constitution or laws ͟ A federal court cannot have jurisdiction just because a ȴ may use
the Constitution or a federal law to defend itself n order to have jurisdiction under 11, the case
must arise under federal law The case may involve federal law but DOES OT ARSE UDER
FEDERAL LAñ The Mottleys sued in federal court anticipating the railroad would say they are just
following federal law The Mottleys failed to state that their cause of action is based upon those laws
or that Constitution, because it is not
a ‘ Mottleys tae their case to state court then eventually to SC again ow does the court
interpret the statute narrower than the constitution? Article 2 is broader than 11͙the
11 allows Mottley to be heard since it is a part of a well pleaded complaint, the Ʌ ͛s claim
is based on federal law rather than the ȴ͛s law based on federal law
iv ‘ The federal statute 11 and constitution read the same, but end up meaning things͙and congress has never
said they meant something else The court interprets the exact same language in 2 different contexts͙
v ‘ Federal question jurisdiction is not limited to federal courts, these questions can still be heard in state courts
f a state court hears that question, the SC can exercise appellate jurisdiction n federal court, a dist level
court can only hear the case if it the claim is part of a well pleaded complaint
1 ‘ ñhen a state court has a FQ͙then the federal courts can tae up the question even if not part of a
well pleaded complaint, so long as it starts in state court t cannot allow federal courts to respond to
FQs when not part of a well pleaded complaint because of 11
e ‘ 28 USC 12 - Diversity
i ‘ Statute has 2 requirements
1 ‘ Diversity: The suit must involve Ʌ s and ȴs who are "citizens of different states" or citizens or
subjects of a foreign state
a ‘ Diversity must exist at the commencement of the action
2 ‘ Amount in controversy: the case must involve an "amount in controversy" in  of 7
a ‘ ypo: Borrowed 40,000 two times and owe $80, one Ʌ can aggregate 2 separate claims to
get to the amount in controversy minimum But if Ʌ1 is owed 40 and Ʌ2 is owed 40, the
claims cannot be aggregated, even though in both cases, more than 7 is at issue
b ‘ Maes sense, 2 Ʌs can͛t combine separate claims to reach the 7 mar
f ‘ Article , MMAL DVERSTY is enough
i ‘ There is a least one party on the other side of the case with a different diversity As long as one Ʌ and one ȴ
with different citizenship that is enough But Congress requires COMPLETE DVERSTY
ii ‘ Redner v Sanders - Ʌ is a US citizen residing in France while the person ȴ is a resident of Y and the
corporate ȴ has a principal place of business in Y Dismissed for lac of SMJ 28 U S C §12, ͞the district
courts shall have original jurisdiction ͙and is between 1 Citizens of different States 2 Citizens of a state and
citizens or subjects of a foreign state ͟ The Ʌ is not a citizen of France and therefore cannot claim jurisdiction
under that statute The Ʌ also claimed CA domicile, which would allow Ʌ to sue under §12(a)(1) RATER
TA 12(a)(2), but the Ʌ has not sufficiently proven CA domicile
g ‘ Diversity for Aliens ʹ
i ‘ Federal courts do not have diversity jurisdiction over a lawsuit between foreign nations if neither has U S
immigrant status Such suits must be brought in State court f one of the parties has achieved permanent
resident status, 28 U S C 12(a) gives the party the status of a citizen of the state in which she is domiciled
ii ‘ Saadeh v Faroui - Saadeh, a Gree citizen brought suit on the loans invoing diversity jurisdiction, Faroui is
a Jordanian citizen residing in Maryland with permanent resident immigration status o SMJ They are
essentially citizens of the same state, even though technically one is a non resident alien and one is an alien
The alienage provision was created to limit diversity jurisdiction, not expand it
V‘ 28 USC 17 - Supplemental Jurisdiction
a ‘ Any lawsuit for which the court has federal question or diversity jurisdiction, the court shall have supplemental
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jurisdiction over all claims that are so related to the federal question or diversity claim that they derive from a
"common nucleus of operative fact "
b ‘ Codifies in section 17 two common-law concepts: pendent jurisdiction and ancillary jurisdiction
i ‘ Pendant - can 2 claims be brought together? Allows a Ʌ to join a state claim with a federal question claim in
her complaint
ii ‘ Ancillary jurisdiction: A Ʌ asserts a federal question or diversity claim in her complaint and another party, or
nonparty, asserts a claim over which the district court lacs original federal question or diversity jurisdiction
c ‘ 17(a)
i ‘ start out with constitutional test ʹ article , mae sure the additional person/claim arises out of a common
nucleus of fact
d ‘ 17 (b)
i ‘ ñhen rd parties are added to either side, the question is whether if the suit had begun that way originally
would there have been diversity jurisdiction? f no, then it͛s not allowed in federal court
ii ‘ f the ȴ is bringing the claim, we don͛t analyze b
iii ‘ f the original claim is not based solely on diversity, then subsection b doesn͛t apply at all
iv ‘ 17(b) says if rd party comes in, the Ʌ cannot mae a claim against them unless there is diversity & 7
because we don͛t want to get to a non diverse situation through the bac door
e ‘ 17(c)
i ‘ The claim raises a novel/complex issue of state law
ii ‘ Claim substantially predominates over federal claim
iii ‘ District court has dismissed all federal claims
iv ‘ n exceptional circumstances there are other compelling reasons to decline jurisdiction
f ‘ ECEPTOS: subsection b where if the basis for being in federal court is OLY diversity from 12 then you do not
have supplemental jurisdiction over some claims if adding additional parties (Rules 19, 20, 24)
g ‘ n re Ameriquest Mortgage Co Mortgage Lending Practices Litigation ʹ  counts, 2 &  aren͛t FQ/Diversity but arise
from same nucleus of facts Since there is no diversity claim subsection (b) of 17 does not apply Since there is not a
novel/complex issue of State law, then 17 (c) does not apply Also, the State claim does not predominate over the
federal claim, the court states that ultimately the state claim should have been heard at the same time as the federal
claim
h ‘ Szendrey-Ramos v First Bancorp - Federal claim brought under Title V, and there are other claims brought against
Puerto Rico by the Ʌ Court declined supplemental jurisdiction in this case, because the state law claims raise complex
or novel issues, and the state-law claims substantially predominate over the federal claim
V ‘ 28 USC 1441 - Removal
a ‘ 28 USC 1441 ʹ Removal: Any complaint that could have been brought into state court can be removed to the federal
court in the same location
b ‘ Removal is to the district in which the state action was filed The lawsuit must be removed to the district court of the
district in which the state is located [1441(a)]
c ‘ The district court must have original jurisdiction/ The lawsuit must be within the district court's diversity or federal
jurisdiction [1441(a)]
d ‘ n order to properly remove the case, there is an exception of 1441b (when jurisdiction based SOLELY O DVERSTY) if
AY of the ȴs reside in the state where the case was brought, then they may not remove the case
e ‘ 1441 (c ), if parts are removable, the whole case moves over and the federal court sends bac to state court what it
could not hear originally, but they must be separate and independent claims
f ‘ Special Requirements
i ‘ Removal in diversity cases: f the state action is within the federal court's diversity jurisdiction, all ȴs must be
noncitizens of the state [1441(b)]
ii ‘ Removal in federal question cases: f the lawsuit filed in state court arises under a federal statute or other
federal law, removal is allowed only if such federal question appears in the Ʌ 's complaint
iii ‘ Removal jurisdiction not derivative of state court jurisdiction: Formerly, removal jurisdiction was viewed as
only "deriving" from proper state court jurisdiction Since '8, Federal Court is permitted to retain an action
removed from state court even though the state court laced jurisdiction over the claim [U S C 1441(e)]
g ‘ 144: doesn͛t allow removal of certain inds of cases from state court to federal lie: cases against railroads, common
carriers, worers comp, etc
h ‘ 144 is procedure for removal f removable, must file within 0 days ͙the 0 days begins after service One year

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limitation on removal f a case becomes removable during the first year, the right to remove countdown starts when
the case becomes removable (complete diversity happens or a federal question is added) f the case becomes
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removable on the 4 day, then you only have 1 day to remove A case can become removable later, by the time it
becomes removable, you have 0 days to remove it All removals in diversity cases must be removed during the first
year
i ‘ 1447(c) supplemental and non supplemental claims all move together when removed
j ‘ Caterpillar, nc v Lewis - Lewis, a resident of Kentucy, sued Caterpillar a Delaware corporation with its principal place
of business in llinois, and ñhayne Supply Co with its principal place of business in Kentucy, in a Kentucy state
court Caterpillar removed the case to federal court per diversity jurisdiction, informing the court in its removal
petition that once a settlement agreement between Ʌ and ñhayne was reached, the dismissal of ñhayne would
mae the case removable Supreme court held that diversity at the time of trial and judgment cures a wrongful
removal of the case at a time when diversity was incomplete
V ‘    
a ‘ Federal courts must apply state common law as well as state statutory law in diversity actions
b ‘ The Rules of Decision Act, states, "The laws of the several states, except where the Constitution or Treaties of the U S
or Acts of Congress otherwise require or provide, shall be regarded as the rules of decision in trials at common law in
the court of the U S in cases where they apply (28 U S C 12)
c ‘ Diversity case in federal court ʹ do you apply state or federal law? Usually both To substantive law, apply state law
To procedural parts of the case, apply federal law
d ‘ Swift v Tyson - Federal courts had to follow state statutory law in cases dealing with a nonfederal question, which
meant that there was state common law and federal common law This gave the Ʌ to shop around for a favorable
forum within a given state Swift says when there is no statute on the topic, federal courts should apply federal
common law and figure out what the best rule is
e ‘ Erie Railroad v Tompins ʹ Try to apply what a state judge would do, even though it is in federal court Swift was
      
But there͛s no such thing as federal common law ñhat ind of state law must judge apply in a
diversity case? The substantive law So now we have to figure out what is substantive and what is not
i ‘ The court overturned its earlier holding in Swift finding that the reference to laws in RODA included not only
state statute law, but also state judicial opinions interpreting the common law
1 ‘ The Erie Court rejected the idea that there was a general common law that applied with equal force
in all common law jurisdictions
2 ‘ The Court held that federal courts had no power to create common law
ii ‘ The court could have reached the holding above based on the RODA, however the Court made it clear that
the result in the case was dictated by the U S Constitution
iii ‘ There is nothing in the constitution that allows Congress to pass general laws, which means the courts do not
have power either [Article , Article , and the 10th Amendment]
f ‘ The substance/ procedural distinction:
i ‘ The Erie doctrine essentially provides that federal courts must apply state substantive rules of law except
when deciding a federal question and federal procedural law
ii ‘ Guaranty Trust Co v Yor - ew Yor statute of limitations law or federal should apply? statute of limitations
are substantive, ew Yor law should be applied if ew Yor law applies then Guaranty wins f federal
common law applies then Yor wins
1 ‘ Ô         : whenever state law is outcome determinative, you must apply the
state law (franfurter͛s rule)
a ‘ Problem with analysis: any procedural matter can change the outcome of the case,
therefore, the test would require federal courts to apply many state rules that are clearly
procedural
b ‘ Byrd v Blue Ridge Electric ʹ Factors Test: is a worer an independent contractor or
employee? f independent contractor you can be a statutory employee under South
Carolina law State law required the judge, not jury, to decide issue of application of
worman's compensation law
i ‘ State law did not apply in federal diversity case where it allowed a judge, and not
jury, to determine a factual issue
ii ‘ The SC develops an interest balancing approach for whether state law is
substantive, and also thins that if a matter is outcome determinative, federal law
must be applied if a strong federal policy is involved in the matter

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iii ‘ Federal interest: The court noted a strong federal interest in using juries whenever
possible, as evidenced by the 7th amendment to the U S Constitution
iv ‘ ard to apply, not a bright line test lie Guaranty, must weigh factors
g ‘ 2 Goals of Erie
i ‘ Discourage forum shopping
ii ‘ Avoid inequitable administration of laws
h ‘ Rules Enabling Act - §2071
i ‘ Gives SC the ability to promulgate rules of procedure, evidence, banruptcy rules͙ SC according to §2072
doesn͛t allow them to mae rules of contracts, but procedure is OK
ii ‘ anna v Plummer - Car accident, Plumer dies Served at the home of the executor, the federal rule 4e2b says
that one can be served by leaving the copy of the complaint at the home of the ȴ with a competent adult of
suitable age and discretion Massachusetts has a contradicting rule that the executor must be served
personally Stat of Lim had run unless federal law applied
1 ‘ any conflict between federal and state law is 
         Outcome
determination is not talismanic anymore, don͛t follow that anymore
2 ‘ ñhen a federal rule conflicts with a state rule:
a ‘ Must determine if it really is a rule of procedure (proper under REA?)
i ‘ ñarren says yes
b ‘ Must determine if it is constitutional-does it deprive someone of a substantive right
i ‘ ñarren says no, no one is depriving you of defending yourself
 ‘  ypos of federal rule conflicting with state rule
a ‘ State law v constitution, constitution always wins
b ‘ State law v fed statute, fed statute wins so long as constitutional
c ‘ Federal rule of civil pro v state law ʹ was it properly enacted/really procedural and doesn͛t
abridge substantive rights? Federal rule wins The one federal thing that will never win
against state law is federal common law ʹ which does not exist
i ‘ Semte nternational, nc v Locheed Martin Corp - Semte sues Locheed in CA courts, and Locheed removes to
federal courts ow in federal court, Locheed states that it exceeds the statute of limitations Court dismissed based
on merits and with prejudice Semte re-files in MD state court with -yr SOL Locheed says that the federal
judgment must be honored Semte states that if it was dismissed in CA state court, it would only bar suits in CA
i ‘ The Supreme Court held that the claim was not barred The Court questioned whether Fed R Civ P 41(b)
might exceed the Rules Enabling Act if it were to bar a substantive law claim nstead, the Court held that the
law of the state in which the original federal court sat would be used to determine if Ʌ 's claim is barred
ii ‘ The claim-preclusive effect of a judgment on the merits in a federal diversity action is governed by the law of
the state in which the federal court sits
V ‘ Pleadings
a ‘ Rule 84: Forms in the appendix suffice under these rules and illustrate the simplicity and brevity that these rules
contemplate
b ‘ Rule 8 ʹ Complaints
i ‘ Short and plain statement of the grounds for jurisdiction (Arising under, or diversity)
ii ‘ You need a short and plain statement of the claim, why you are entitled to relief
iii ‘ Prayer for relief; what the Ʌ wants
iv ‘ Enough info for the ȴ to loo at the complaint and mae a response
c ‘ Bell v ovic - filed tort claim in Maryland state court and removed to the district court MTD because the Ʌ fails to
state a claim upon which relief can be granted Motion overruled Ʌ claims the injuries and damage were a direct
result of the negligence on the part of the ȴs without any contributory negligence from the Ʌ Rule 8 is good ot
entitled to a more definite statement under 12e, the information should be determined by interrogatories under rule
 or other discovery procedure Under anna v Plumer this is a procedural rule, this would be different under a
Maryland court but federal rules only require a short and plain statement of the case Rule 8 standards are met,
maybe not Maryland͛s standards, but that does not matter
d ‘ Rule 7a: types of pleadings
i ‘ only 7 types of pleadings
1 ‘ Complaint- governed by rule 8a
2 ‘ Answer to complaint ʹ governed by rule 8

áP ag e
 ‘ Answer Counterclaim ʹ governed by rule 1- arises out of the same facts
a ‘ (rule 12 motion - can include all of the defenses available under it) 12b ʹ even if everything
in your complaint is true, there is no relief for those claims
4 ‘ Answer to Crossclaim ʹ between 2 parties on the same side of the case ʹgoverned by rule 1 Limits
crossclaims to those arising out of the same facts of the complaints
 ‘ rd party complaintʹ claims must arise out of the same complaint
 ‘ Answer to rd party complaint
7 ‘ f court orders, a reply to an answer
e ‘ addle v Garrison - trial court allowed ȴ's motion to dismiss under Rule 12(b)() for failure to state a claim The SC
finds that the 11 Circuit's conclusion that addle must suffer an injury to a "constitutionally protected property
interest" to state a claim under section 198(2) is wrong because nothing in the statute establishes such a
requirement The fact that employment at will is not property under the Due Process Clause does not mean that loss
of at-will employment may not injure a person or his property under section 198(2) The sort of harm asserted by
addle states a claim for relief under section 198(2) and such harm has long been compensable injury under tort law
i ‘ case is all about whether his complaint was acceptable under rule 8
f‘ Conley v Gibson: The Supreme Court enunciated a very broad standard-
i ‘ Until last year, if you say enough to let the other side now what the basis of the claim is, and it is conceivable
that you have a claim, that was enough (based on Conley v Gibson)
ii ‘ Conley stated that "Specific Facts are not necessary "
iii ‘ A complaint should not be dismissed for failure to state a claim unless it appeared beyond doubt that the Ʌ
can prove no set of facts
iv ‘ Served as the basic interpretation of the "short, plain statement" criterion for half a century
v ‘ The idea was to hash the details out during the rest of the trial process
vi ‘ ñhy would you file a case that you are not certain about all of the details?
vii ‘ Perhaps statute of limitations is about to run
viii ‘ Perhaps the other side is stonewalling
ix ‘ A lot of times, if a lawyer has enough to get by rule 11 (reasonable expectation of an inquiry) you will file a
suit under the reasonable expectation that you will find out more information during discovery
x ‘ As long as you have a good faith basis for alleging the things you need to allege, under Conley, you could file
suit
g‘ Bell Atlantic Corp v Twombly
i ‘ District court dismissed the complaint, 2nd circuit reversed citing ͞short plain statement͟ provision of Rule 8
Supreme Court reverses and dismisses the complaint Requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action is unacceptable Must have something than a mere
possibility of a loss causation Ʌ s have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed ard to prove that companies charging the same price have AGREED to
charge the same price Conley rule͙technically allows the Ʌ to start discovery Rules don͛t require lots of
facts Agreement in restraint of trade? ñell they all charge the same amount͙no facts to support the
antitrust allegation except that they all charge the same amount
ii ‘ Rule11b says to the best of your nowledge and belief you are submitting this complaint͙so Twombly
believes to the best of his ability and nowledge that his complaint is true Don͛t have to have evidentiary
support yet͙ but  will have it after discovery
iii ‘ Recognize Conley is the base-line, but see that plausibility has been added to it through Twombly, although
the court has not defined what plausibility is
h‘ qball
i‘ e is complaining about being considered a ͞high-interest͟ detainee and says he was abused while in prison Says he
was deprived of his constitutional rights, say he was discriminated against on the basis of national origin and religion,
he says that he was treated poorly because he is a Paistani and a Muslim, which violates the civil rights clause
Claims Ashcroft, head of the department of justice and Mueller, the head of the FB new about the mistreatment and
did it because of his national origin and religion The prison officials are also sued and the court allows that Court
doesn͛t allow him to recover against Ashcroft and Mueller qball says they condoned and formulated the policy to
discriminate against him and others Furthermore, respondeat superior, the people who hurt him were subordinates
of Ashcroft and Mueller Kennedy says under civil rights law you have to show that the individuals did something
wrong and condoned it, not that the subordinates did something Throwing out the respondeat superior on our own,
cannot state a claim for respondeat superior under civil rights clause Supreme Court is not worried about Ashcroft
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spending a ton of money on discovery (lie they were in Twombly)͙but before we let this guy who was deported bac
to Paistan, etc we should mae sure he has a good case before discovery because national security could be
compromised then qball is not saying they can͛t have a strict confinement for high security prisoners͙they are saying
the prisoners in strict confinement cannot be based on origin/religion Kennedy says the complaint is conceivable, of
course the head of the FB and DOJ got together after the country was attaced But where is the evidence that the
men got together and planned a discriminatory policy The plan is conceivable BUT OT PLAUSBLE Kennedy says
there isn͛t a civil rights violation Rule 8 means claim must not only be conceivable but also plausible, no facts have
been given to mae it plausible so this claim cannot proceed ot sure that there is any evidence that Kennedy could
have been given to cross the line to Plausible
i ‘ Dissent: ñhy do they thin Twombly is a different case? n Twombly we weren͛t even sure the conduct
alleged was illegal, they just said there was parallel conduct which can be perfectly innocent They gave no
reason to believe it was wrongdoing n qball you allege terrible things and say it was because of national
origin/race, which would definitely be illegal ñe are fighting about whether the ȴs are proper or not in this
case ñhen  said plausible  meant plausible that there was a tort or cause of action or civil rights action͙you
made it plausible The only question is whether these guys were a part of it, you said enough You said they
enacted the policy themselves, those aren͛t legal conclusions qball is -4 and is now the rule
ii ‘ Some things are clear from qball
1 ‘ Plausibility is now the standard for all cases
2 ‘ o clear definition of plausibility ͙ mushy standard
 ‘ qball interprets rule 8 ʹ short, plain claim͙
4 ‘ Rule 84: if you use the form, that suffices under rule 8
 ‘ Forms are limited to certain types of cases
 ‘ ñhat does this mean about how cases are processed? Under qball cases are more liely to be
thrown out earlier under 12b
j ‘ Stradford v Zurich nsurance Co - Stradford sued insurers in state court seeing payment on an insurance policy ȴs
removed the case to federal court and asserted counterclaim against Stradford asserting that he nowingly and
willfully devised a scheme to defraud them and obtain money by false pretenses Stradford moved to dismiss the
counterclaims that are based on fraud for failure to state their claims with sufficient particularity under Rule 9(b)
i ‘ Rule 9(b): n alleging fraud or mistae, a party must state with particularity the circumstances constituting
fraud or mistae Malice, intent, nowledge, and other conditions of a person's mind may be alleged
generally
ii ‘ The court held that ȴ's counterclaim for fraud was insufficient because it failed to identify the false
statements allegedly made by Ʌ
 ‘ Rubric of burden of proof
i ‘ there are  types of burdens
1 ‘ ×  
  ʹ who has to plead a certain fact
2 ‘ Once you get to trial, there is something called a Ì     may have pleaded in my
complaint that your car ran into mine but that doesn͛t get me to the jury At trial  must produce
evidence that it occurred You can be dismissed by MSJ if you don͛t have enough evidence f the
judge calls the jury in and by the time you haven͛t produced evidence to prove your case = directed
verdict from the judge because there isn͛t evidence This is throwing out the case
 ‘ ×   ʹ in a criminal trial the state puts on evidence that a crime committed, this is a
burden of persuasion But now the jury must find that the evidence shows beyond a reasonable
doubt the crime was committed
ii ‘ Typically all  of these burdens fall on the Ʌ with respect to the elements of a claim f it is a torts claim and
you͛re the Ʌ then you must show generally the ȴ had a duty, there was a breach of the duty and the
proximate caused by the ȴ
iii ‘ Discharge the pleading when you file your complaint Production is discharged at either MSJ or doing the
trial Persuasion discharged by arguing in front of the jury and convincing them your case was right
iv ‘ As to pleading it͛s enough if you just say it correctly Production requires enough evidence that if believed
would reasonably establish your case As to persuasion, you must show that your evidence is more powerful
than the other side͛s evidence ñe have focused on the pleading burden, but it͛s important to remember the
burden of pleading will carry with other burdens down the road
v ‘ f ȴ doesn͛t feel Ʌ fulfilled its burden Ñ file 12b motion
vi ‘ Rule 8 c - affirmative defenses

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1 ‘ Affirmative defenses ʹ why do we mae a ȴ allege these defenses? ñhy don͛t we have the Ʌ say
there are no affirmative defenses͙but the list is not exhaustive, so this expedites things to allow ȴs
to allege the ones that are valid The evidentiary support about whether an affirmative defense is
true, is held by the ȴ rather than the Ʌ usually ȴ will most liely now f  sue you on a promissory
note, it͛s unliely  would sue you if it has been paid, unless it is a mistae
2‘ ñhy we have 8c:
a ‘ someone has to allege these and Ʌ s may not have information about it
b ‘ they are a bit unusual, not what we normally expect the response to a complaint to be, so
we have to put the burden on the one who didn͛t draft the complaint
‘ The consequence of not including an 8c defense in your answer at some point, is that you can͛t
mae it f you don͛t bring it up, then it is waived
4‘ affirmative defenses can always be added to an answer under the liberal amendment policies of rule
1 - can amend this answer so long as you have a reason to add it t can even show up at trial This
is not an exhaustive list, consequence of alleging it you maybe have to prove it, but it still may be
better to raise it
‘ Can put in your answer ͞as an affirmative defense,  allege͙͟ ʹ the affirmative defense is not a
counterclaim Counterclaims sees recovery against Ʌ You may do both, though f you were
injured in an auto accident and thin he was at fault, you would answer his complaint with
affirmative defense of contributory negligence and then file a counterclaim to get recovery for
yourself͙
‘ Ʌ s don͛t reply to affirmative defenses, but they do reply to counterclaims You reply to it the same
way you do an answer,  admit,  deny,  don͛t now͙
7‘ Jones v Bloc - court say he didn͛t exhaust all his administrative appeals Rule 8c says in responding
to a pleading a party must state any affirmative defense including (but it doesn͛t say that these are
the only possible affirmative defenses ) 8c doesn͛t answer if this is an affirmative defense The court
concludes this is a burden for the defense
vii ‘ Rule 11:
1 ‘ important for several reasons
2 ‘ Judge may sanction you even if you say you͛ll never do it again The system is built on the
assumption of good faith on both sides
‘ Plausibility ʹ it is whether you alleged enough facts for it to be plausible if the facts are assumed
true qball would survive a MTD if Ashcroft admitted everything
4‘ Can͛t just loo at the rules to see what you need to say to get past the technical requirements of the
rules Ashcroft can͛t say he was never AG ʹ because that͛s not true The default assumption is that
people have some basis for what they are doing
‘ This is so we aren͛t questioning if people really are a citizen of a certain state, rule 11 polices the
system
‘ Sanctions can occur in 2 ways, a court can impose sanctions on its own ʹRule 11c1 ʹ the court must
give you notice and sufficient opportunity to respond
ñaler v orwest Corp - complaint did not allege complete diversity = rule 11 violation? rule 8 says
that one must allege the basis for jurisdiction, the complaint says ͚some of the ȴs and some of the Ʌs
are citizens of different states and therefore there is diversity ͛ ñhat part of rule 11 does this
violate? Rule11b e did not sufficiently investigate the facts e argues that he did investigate the
facts but he didn͛t understand the legal significance of the facts This is an 11b2 case e͛s made an
uninformed claim about jurisdiction and reasonable lawyers would not mae that claim e checs
and figures out that some on the Ʌs side and some on the ȴs side on each side So he͛s done
sufficient investigation to figure out that there is not diversity and should not bring it in federal
court e says maing an effort to figure out the citizenship of the ȴs would be overly burdensome
But he figured out that there is one from each side from SD, then you͛re done, don͛t have to
investigate everyone once you find diversity is destroyed e also alleges that the district court
abused its discretion in awarding monetary sanctions Rule 11 gives the court some discretion, if he
had just made a mistae in the complaint and was told about it from the other side then they should
be sanctioned by the court and the court has the discretion for sanctioning jers e argues that the
court should just dismiss those from South Daota because the court says they shouldn͛t have to do
his wor for him The judge dismisses the case without prejudice because there is no longer
jurisdiction because no subject matter jurisdiction ave to do show cause order of 11c before the
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case is settled or dismissed͙otherwise you can͛t do it
7 ‘ Christian v Mattell, nc - how did he violate rule 11? o factual investigation ñhat didn͛t he
investigate? e didn͛t investigate when the Barbie was designed and unlie the guy in SD who gets
to say it would have been hard to figure out where the ȴs are͙but it is stamped right there on the
Barbie he brought to court ñhy does she reverse the rule 11 sanctions? ñorried about whether or
not the court used other factors besides the writings to influence the decision of sanctions (1/2
million in sanctions) But rule 11 sanctions is only for things filed in court, there are other sanctions
for not showing up on time, acting out during meetings, etc Penalty given by the district court
seems disproportionate This is the clearest rule 11 violation ever A rule 11 violation on a rule 11
motion is possible if you file it without a sufficient basis That is why there are 21 days
l ‘ Responding to the complaint Rule 12
i ‘ 4 ways
1 ‘ You can admit things͙
2 ‘ You can deny things
 ‘ You can say  don͛t now
4 ‘ Or you can allege things = affirmative defenses
ii ‘ You can file an answer ʹ the complaint alleges different things and the answer says deny, admit or  don͛t
now
iii ‘ You can respond to a complaint with a defense from rule 12b t͛s an either or You can͛t file an answer AD a
MTD Must mae that choice within the time given to respond, usually 20 days after service unless there is a
waiver and you have 0 days
iv ‘ Must file answer/motion with the court and serve it on the other side, Rule 4 allows everything but the initial
complaint to be served by mailing it
v ‘ Don͛t have to file an answer until the court dismisses the motion 10 days after the denial to file the answer
(rule12a4)
vi ‘ ever required to file a 12b motion, to preserve the defenses without filing a 12b motion, you put them in
your answer  admit, deny the allegations AD the 12b defense of no personal jurisdiction, etc Might put the
12b defenses in the answer͙ to do further investigation later, or as a strategic move t͛s not a motion if you
put the 12b defense in your answer At the beginning you have to choose 12b motion or the answer Even if
you don͛t thin you will succeed under 12b you might not want to file an answer if you are following rule 11͙
might not want to admit the allegations and try for the 12b defense
vii ‘ Rule 12d is a motion for a more definite statement ʹ courts don͛t usually allow this f the claim passes 12b
then court tells you to get the answers in discovery
viii ‘ Motion to strie almost never gets used, too
ix ‘ ñhen you bring a rule 12b motion or an answer with 12b defenses, you assert all of the rule 12b defenses
you have You will have waived the 12b defenses if you don͛t assert them There are a couple exceptions
x ‘ Subject matter jurisdiction, rule 12h
xi ‘ Rule 12h2 has some other exceptions Can͛t include failure to state a claim if you leave it out of your 12b
motion, you can assert it later in trial or in a motion for judgment on the pleadings You can raise the failure
to join a responsible party later, too
xii ‘ Rule 12e Motion for judgment on the pleadings: once we have a complaint and answer, there might not be
anything to litigate anymore Ass the judge to end the suit because they admitted everything, just have to
loo at the pleadings and  win Or if there is not a claim that can be remedied
xiii ‘ Rule 12g is about all motions under this rule, not just 12b combination under rule 12 is all 12motions͙but
99% of the time it is 12b Rule 12 also provides that any of these defenses under rule 12 in an answer if you
haven͛t filed a MTD But if you don͛t put them in the answer, you waive them
xiv ‘ Later amendments can͛t bring bac rule 12 defenses But there is no similar rule for rule 8, if you have an
affirmative defense and convince the judge to let you amend͙then it͛s o
xv ‘ Zielinsi v Philadelphia Piers, nc - Only if the court orders a response can you actually respond t is an
ineffective denial for ȴ to deny Ʌ 's allegations that ȴ "owned, operated, and controlled" a forlift when ȴ
owned the forlift, but did not operate and control it
1 ‘ The court held that the vague general denial of liability where a specific denial of ownership was
required constitutes a bad faith pleading
2 ‘ The court, because of PP's improper form of the answer was deficient, treated the allegation as
admitted, since allegations not specifically denied are admitted

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m ‘ Rule 1: amending pleadings
i ‘ Amendments as a right always allowed if done before answer Can amend so long as there is no prejudice
against the ȴ for the amendment ʹ says amendment should be given to avoid injustice Rule 1c only comes
into play when the statute of limitations has run, the additional complaint must arise out of the same
transaction f it is before you receive an answer to a complaint͙then you have 20 days after it is filed to
amend it once as a right Otherwise you have to get a stipulation from the other side or permission of the
court͙permission will be given liberally to allow justice
ii ‘ Can you amend after you are served with a MTD because a MTD is not a pleading, it is a motion Once he
answers, cannot amend it without consent of the other party or the court You have the same period of time
as you would if you had a complaint
iii ‘ f there is something wrong with your answer, you can fix it within the 20 days, after that you have to get a
stipulation or court permission
iv ‘ The language is specific here, 1a2, the courts ͞should freely give leave to amend when justice so requires͟ =
we should generally let people amend their pleadings if they need to
v ‘ The rule encourages people to amend their pleadings along the way, the judge can allow amendments to
happen during trial because everybody had notice along the way͙ the court will damn well as the other side
why they didn͛t agree to the amendment and most judges won͛t find it persuasive to say that they didn͛t
have to do it
vi ‘ The rule 8b even allows amendments after the trial is over
vii ‘ 1c2 ʹ does the party now a mistae was made in the relevant time?
viii ‘ Amendment issues become most important in circumstances where the statute of limitations has run 1c
allows an amendment that relates bac to an original pleading, under certain circumstances
1 ‘ Three requirements
a ‘ Same transaction
b ‘ Receive notice within that time period so not prejudiced without nowing merits
c ‘ Know or should have nown action would be brought against you but for mistaing the
party͛s identity (forgetting to add ȴ is not a mistaen identity) You honestly believe the
person filed again is the right person even though they aren͛t, happens with corporations
and subsidiaries
2 ‘ Beec v Aquaslide ͞n͟ dive corp - Beec sued Aquaslide which he believed to be the manufacturer
of a slide on which he was injured Aquaslide originally admitted that it was the manufacturer, but 
months later found out that they had not manufactured the slide They then moved for leave to
amend their answer, to withdraw its admission, and to have a separate trial on the manufacture
issue
 ‘ Rule 42(b) gives court the authority to order separate trials in the int of judicial economy
4 ‘ Statute of limitations and relation bac: The federal Rules permit both Ʌ s and ȴs to amend their
pleadings to add a new legal theory, a new party, or a new defense, whether or not such new matter
arises out of the same factual patter that forms the basis for the original complaint
ix ‘ Moore v Baer ʹ o informed consent After statute of limitations has run the Ʌ wants to amend the
complaint to say that the doctor negligently performed the surgery But it doesn͛t arise out of the same
occurrence, you are complaining about 2 different things First you͛re complaining about what happened
before surgery, now you want to complain about what happened during/after surgery, doesn͛t meet the
basic requirement of it arising out of the same transaction The doctor wasn͛t put on notice that he would
have to defend the events during and after the surgery Doctor did not get fair notice from the original
complaint that you had complaints about the surgery
1 ‘ Did not relate bac (1c) = SOL bars claim
2 ‘ ot arising out of same facts
x ‘ Bonerb v Richard J Caron Foundation - Original complaint is about negligence, the amendment is adding that
after Ʌ s͛ counsel was substituted he realized he had a malpractice claim, too But it arises out of the same
transaction so this is OK to amend
 ‘ Former Adjudication
i ‘ Claim preclusion = res judicata
1 ‘ A sues B and A loses A cannot bring a 2nd suit claiming the first suit was wrong Once a claim has
been decided you cannot bring the same claim again Forbids a party from litigating a claim that was,
or could and should have been raised, in former litigation

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ii ‘ ssue preclusion = Collateral Estoppel
1 ‘ A sued and the issue is whether you were driving, the jury decided you were driving ext case
comes along and a different person sues you and it is at issue if you were you driving, but that claim
has already been decided so that judgment stands for the second lawsuit
b ‘ Claim Preclusion
i ‘ Goals of claim preclusion
1 ‘ Efficiency - bring all claims at once
2 ‘ finality - don͛t have to go bac to the same transaction͛
 ‘ avoiding inconsistency
ii ‘ Rush v City of Maple eights - ñife owns a motorcycle, her husband drives the cycle and both he and the
bie are hurt when they run into a hole in the road
1 ‘ 1 Mrs R v city for property damage and she won
2 ‘ Suit 2 is Mrs R v City for personal injury using issue preclusion
 ‘ Suit 1 established the city was negligent because of the pothole City͛s argument is claim preclusion,
she should have brought personal injury in the first case
4 ‘ Ʌ wins at trial in the 2nd suit, court says Ohio SC has already decided you can split claims =
restatement rule, general rule for today t is more efficient to litigate all at once egligence already
established and damages just have to be decided
iii ‘ Full faith and credit, not an issue for claim preclusion rule, says that state 2 needs to find out what the
issue/claim preclusion rules in state 1 were This question is not necessarily answered by rule 41a, full faith &
credit clause requires you to figure out what the state 1 follows Modern rule is the same transaction test
iv ‘ Claim splitting rule ʹ if you only try property in first claim and try different one on another claim, some states
still allow claim splitting
v‘ Frier v City of Vandalia - 4 cars have been towed by the city Sues for replevin = wants his property bac Suit
1 in state court, city wins because the cars were properly towed Suit 2 filed in federal court, claims due
process violation because the government has to have a prompt hearing (not necessarily before) to tae or
temporarily deprive you of your property Could have brought his federal constitutional claim in state court
Court finds claim preclusion because he should and could have brought the DPC in the first lawsuit Doesn͛t
matter who won/lost 1, 2 is barred by preclusion regardless of the outcome in 1 (for claim preclusion) For
issue preclusion it matters a lot who won suit 1 Combining claims in a single complaint doesn͛t mean they
have to be tried together (rule 42 allows claims in a suit to be tried separately)
vi ‘ Rule 1a ʹ a ȴ must bring as a counterclaim all defenses he has arising out a transaction that is the subject of
the complaint Claim preclusion wors both ways
vii ‘ Martino v McDonald͛s System, nc - as part of the franchise, Martino͛s relatives cannot have a financial
interest in another food business Ʌ ͛s son buys a burger chef franchise McD sues for breach of contract and
sues the Martinos Court gives consent judgment for McD in 1 where the judge says you can order certain
things and it is enforceable with the full power of a judgment n 2 Martino brings a suit saying that their
agreement violated antitrust acts f we allow 2 then in 1 McD is enforcing a contract that we later find
illegal t is more efficient for the 2 issues to be separate but the transaction test has us try them together
Federal court says Martino should have brought his claim as a counter-claim in suit 1 (rule 1) Court doesn͛t
want inconsistent judgments f 1 found K fine and then we find it not OK, it is inconsistent Don͛t want
conflicting results even if inefficient to mix breach of K with antitrust
viii ‘ f case is up on appeal, still considered a final judgment unless the case is reversed b/c no final judgment
ix ‘ 2 basic requirements for claim preclusion
1 ‘ Always a suit 1 and suit 2 ʹ do they involve the same claim? Under the majority test the question is
whether they arise out of the same transaction (same question you as for supplemental
jurisdiction) Under the minority rule, the question is whether the 2 cases involve the same
evidence? For our purposes, the majority rule = the restatement test, the same transaction test, is
what we need to now
2 ‘ Court 1 must have had the ability to hear the 2nd claim (f Rush brought her claim in small claims
court for $ could not have also heard her multimillion dollar personal injury claim͙then no claim
preclusion)
 ‘ Suit 1 and suit 2 must involve the same parties͙ there are some exceptions to the rule when parties
are in privity f you own a house and  claim  have an ownership in the house and  win the case that
 have ½ interest and if you sell the house  don͛t have to litigate with the next person who buys it

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that  still have ½ interest
4 ‘ Suit 1 must have a final judgment on the merit
x ‘ Searle Brothers v Searle - Suit 1: Edlean says she owns half the Slaugh ouse cause of marital property
ñoodey says he owns ½ interest in the property and the other half was owned by a partnership with his sons
as partners Suit 2: sons sue their mother, Edlean because they claim suit 1 was wrong Trial court finds claim
nd
preclusion Claim preclusion: even if the 2 court thins the first suit was terrible, it doesn͛t matter and the
2nd suit cannot go forward
xi ‘ Taylor v Sturgell - Taylor says what the rule of virtual representation is͙SC doesn͛t lie visual representation
Could Arizona have a virtual representation rule that is broader? Can͛t screw people out of their ability to
show up for their day in court͙states are not entirely free to ignore if someone is not in suit 1 but precluded
for suit 2 Being friends is not enough, must have a formal relationship for privity according to Ginsberg
Mae sure they are the same parties for claim preclusion͙there are a few exceptions but mainly just need
the same parties
1 ‘ Same claim
2 ‘ The ability to bring the claim in suit 1
 ‘ Same parties
4 ‘ Final judgment in suit 1 ʹ haven͛t taled about yet
a ‘ Suit dismissed for absence of personal jurisdiction Can  rebring it? t is not preclusive, it is
not with prejudice, it is not on the merits Unless it is a final judgment on the merits in suit 1
then there is no claim preclusion
b ‘ Suit 1 tried and is up on appeal but you bring suit 2, is suit 1 preclusive? Yes, even though
it͛s not really final but it is a final trial court judgment ave to wait to see the appeal
c ‘ ñho should have to prove claim preclusion on basis of agency? Defense, because claim
preclusion is an affirmative defense
d ‘ ñhat is a final judgment on the merits? Jury verdict? Yes Directed verdict? Yes Summary
Judgment? Yes
xii ‘ Gargallo v Merrill Lynch - Merrill Lynch sued Gargallo in Ohio state court to collect a 17 debt, Gargallo
counterclaimed that Merril had caused the losses through negligence Oho state court dismissed the
counterclaim with prejudice under Ohio law for failure to comply with dsicovery requests Gargallo then sued
Merrill Lynch in federal court alleging that they had violated federal securities laws, and the court dismissed
the case on grounds of res judicata
1 ‘ The court of appeals held that the prior state court judgment upon a claim with the exclusive
jurisdiction of the federal courts did not bar a subsequent federal lawsuit involving an identical cause
of action
2 ‘ Federal courts are required under 28 U S C 178 to determine the preclusive effect of prior state
court judgments pursuant to the law of the state where the judgment was entered, and under Ohio
state law, a final judgment on the merits that is not valid for lac of subject matter jurisdiction over
the claim in question has no preclusive effect with regard to that claim
 ‘ ñhen a court has no jurisdiction, its disposition of the claim will not be preclusive (this is the general
rule) which is taen from the Restatement
c ‘ ssue Preclusion
i ‘ ñe are not saying you can͛t bring the claim, just can͛t say the same issues
ii ‘ Must have the following 4 things for ssue Preclusion
1 ‘ ssue of fact/law
2 ‘ Actually tried or determined in suit 1
 ‘ Essential
4 ‘ Valid final judgment
iii ‘  requirements
1 ‘ Same issue (claim/fact
2 ‘ Actually litigated and determined
 ‘ Final judgment
4 ‘ ecessary to judgment
 ‘ Same parties? f not, is it one of the exceptions?

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iv ‘ llinois Central Gulf Railroad v Pars - Jessie Pars brings suit against the railroad for personal injuries after
already having brought a derivative claim previously for loss of his wife's service as a part of her personal
injury claim The court held that issue preclusion did not bar Jessie's attempt to recover for his own injuries
because it is not clear what the jury in the first action considered, let alone was presented with
1 ‘ state law stated that the consortium claim and personal injury claim involved different legal "rights"
and accordingly were not barred by claim preclusion
2 ‘ The court reasoned that Jessie could have lost his first claim because he was contributorily negligent
or because he suffered no damages Although the contributory negligence was the same in both
suits, damages would differ for the different claims
 ‘ whether the issue was essential to the judgment?
a ‘ ñas the issue really something the jury had to find in order for one of the Ʌs to win
b ‘ A determination in the alternative may not have been as carefully or rigorously considered
as it would have if it had been necessary to the result and in that sense it has some of the
characteristics of dicta
c ‘ The second restatement is trying to discourage appeals, by saying that neither issue is issue
preclusive f there was only one issue, then you could appeal f the judge affirms that, then
both claims are now issue preclusive, because now, the appeal has already been taen
d ‘ Trying to avoid unnecessary appeals
v‘ Mutuality: same parties on both sides ͙ for claim preclusion you shouldn͛t lose your claim if you haven͛t
litigated, this maes sense n issue preclusion the modern trend is to be much looser about mutuality The
first critical case is Blondertongue͙judge says patent is not valid͙got the chance to prove the patent was
valid and suing a different victim in suit 2 doesn͛t mae it unfair to assert the issue that was decided in suit 1
ñhen a Ʌ loses an issue in suit 1 (meeting all  requirements) the patent s no good then if he wants to
litigate the same issue a ȴ may assert issue preclusion because the Ʌ already had his day in court
Blondertongue wanted to mae defensive use of issue preclusion
vi ‘ Parlane hosiery co v Shore- The court held that issue preclusion did not allow Parlane to relitigate the
factual issues previously determined against them in the first claim, the SEC action Focus is on offensive use
of issue preclusion, as opposed to the defensive use of issue preclusion described in blonder-tongue SEC filed
suit against ȴs alleging that Parlane had issued a false proxy statement Shore then files a claim against
Parlane, and wants to apply issue preclusion to findings of the other suit which found that the proxy
statement was materially false
vii ‘ Difference between offensive and defensive use of issue preclusion:
1 ‘ Defensive use precludes a Ʌ from relitigating identical issues by merely switching adversaries
2 ‘ Offensive use could create an opposite incentive- since the Ʌ will be able to rely on a previous
judgment against a ȴ but will not be bound by that judgment is the ȴ wins, the Ʌ has every incentive
to adopt a "wait and see" attitude
a ‘ Court is concerned about giving people the incentive for people to not join in the same suit
b ‘ There are federal rules for joinder etc
c ‘ Second reason is the same as discussed previously: The incentives to litigate may not be the
same for the ȴ in each case; if the ȴ in the first action is sued for small damages, he may
have little incentive to defend vigorously
viii ‘ Critical thing in this case: offensive use of issue preclusion is highly discretionary; there are other policies at
stae
1 ‘ Other question in this case is whether or not this violates the 7th amendment (party is entitled to a
jury trial )
ix ‘ The government is never subject to offensive issue preclusion
x‘ State Farm v Century ome - This case involves mass tort litigation arising out of a fire that began on Century
ome components property, and resulted in 0 separate actions Three of these actions proceeded to final
judgment; one ruled in D's favor, and 2 ruled in P's favor after one was appealed A group of Ʌ s asserted that
the court should provide issue preclusion against D on the question of liability The court held that nonmutual
offensive collateral estoppel must not be applied if it results in unfairness to the ȴ
1 ‘ ñhen there is an ambiguous trend, the court will most often not apply issue preclusion
2 ‘ ssue preclusion would never be applied to the Ʌ , because each Ʌ is entitled to his/her day in court

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Rule 1 says: these rules should be construed and administered to secure the just, speedy and inexpensive determination of every action
and proceeding
Rule 2: only a civil action f you allege the appropriate facts, prove them, and then you get the appropriate relief (meant to combine all
these previous points of action, don͛t have to go to equity court to get specific performance for breach of K)
Rule 7a: types of pleadings - only 7 types of pleadings (1) Complaint- governed by rule 8a (2) Answer to complaint ʹ governed by rule 8
()Answer Counterclaim ʹ governed by rule 1- arises out of the same facts (rule 12 motion - can include all of the defenses available
under it) 12b ʹ even if everything in your complaint is true, there is no relief for those claims (4) Answer to Crossclaim ʹ between 2
parties on the same side of the case ʹgoverned by rule 1 Limits crossclaims to those arising out of the same facts of the complaints ()
rd party complaintʹ claims must arise out of the same complaint () Answer to rd party complaint (7) f court orders, a reply to an
answer
Rule 8: Governs complaints o stylized complaint
A complaint under 8(a) has to have  things
1 ‘ A short and plain statement of the grounds for jurisdiction
2 ‘ Short and plain statement of the claim showing the pleader is entitled to relief
 ‘ A demand for the relief you thin you are entitled to: give me an injunction, my property bac or money
Rule 8: loo at this for what the SC has said are affirmative defenses͙rule 8c these are liely to be Qs on the test
Rule 8(d): a party may set out 2 or more statements of a claim or defense alternatively
Rule 8e2: requires a reason for maing these allegations f you mae alt allegations, better have a reason/ each claim
Rule 9 says there are some complaints where you need heightened standards͙lie when someone accuses you of fraud, that must be
given proof to base that on
Rule 9b requires that fraud cases have more facts than required by 8a
Rule 11 means you can͛t just say what would win the case for you f you get in an accident, must admit that you ran your car into
someone else -- you can still say that it was not a negligent accident Under 11, you must admit the things you now to be true Ã
 cc
has several requirements ʹ for any paper filed with the court:
1 ‘ All papers must have a signature of an attorney ʹ signature is viewed as a representation
2 ‘ B ʹ you are filing this for a purpose ʹ because you believe in the position you are advocating, that this is a claim/defense
warranted by existing law Representing as a lawyer that you have made a legal investigation into the claim/defense and say
that it is supported by existing law or that you are trying to change law in a good faith way Facts and contention must have
evidentiary support or will have it after an investigation ʹ may not be enough that your client tells you the allegations Clients
lie to you Rule11b says to the best of your nowledge and belief you are submitting this complaint
 ‘ D ʹ for parties represented by lawyers, you can never complain a paper doesn͛t have a legal basis All other legal sanctions can
be filed on a party

Rule 1 a, must bring all claims against a party arising out of a transaction
1a defines compulsory counterclaim t meets 17a because it arises out of the same facts
1a ʹ a ȴ must bring as a counterclaim all defenses he has arising out a transaction that is the subject of the complaint Claim
preclusion wors both ways
rd
Rule 14 f ȴ liable to Ʌ but someone liable to ȴ =  party complaint governed by rule 14
Rule 1: amending pleadings: Amendments as a right always allowed if done before answer Can amend so long as there is no prejudice
against the ȴ for the amendment ʹ says amendment should be given to avoid injustice
Rule 1c only comes into play when the SOL has run; the add͛l complaint must arise out of the same transaction
Rule 19, allows a ȴ to say you can͛t just sue me because there͛re other people who will be affected by the judgment
Rule 20, ȴ says there should be additional judgments but they are not required, it would just be better for justice
Rule 24 is someone asing to be a part of the suit, should be in the case because the judgment will affect them
Rule 19 and 24 also allow ȴ to force Ʌ to add additional parties (lie if the Ʌ is married so they won͛t have to go through 2 separate
lawsuits against each of the married Ʌ s)

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