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Civil Procedure Fall 2010 Professor Abernathy

I. The FRCP and Related Concepts

1. Substance and Procedure
FRCP created in 1938 w/goals:
1. Model for states to reform their laws
2. Rise of the federal lawyering class firms in multiple states can practice uniformly
3. Outcome of a case should not depend on which court you pick federal or state
a. Remember: Case law also governs the District Courts
Transubstantive = doesnt matter what the law is/who the player are -> need to make rules that are fair to
everyone because we dont know who the bad guy and who the good guy is before the trial
Patterns in FRCP:
Sometimes the STANDARD is in the rule
Sometimes in the State rule
Sometimes omitted -> look to case law/federal common law
REA = Rules Enabling Act of 1934 (now 28 U.S.C. 2072)
SCOTUS can make rules of procedure for the federal District and Circuit Courts
Rules shall not affect substantive rights (fundamental rights)
Replaced the Conformity Act of 1872 which had fed. courts conform to state procedural rules
RDA = Rules of Decision Act (28 U.S.C. 1652)
Laws of the several states are rules of decision in federal court in cases where they apply
o Can be state procedural (if no FRCP directly contradicting it) OR substantive law
o Pre-Erie, this meant only state statutes. Post-Erie, this means state statutes AND common law.
Sibbach v. Wilson, 1941 = Post-Erie & slightly post-FRCP
Diversity claim filed in IL. Claim arose in IN. Wilson moved for Sibbach to submit to a physical exam.
Sibbachs argument against the motion: R35 is a procedural and substantial rule
Ps Dilemma:
o If its purely substantive, we now have Erie -> IL procedural law says follows law in which
claim arose -> IN law is she needs to submit
o If its purely procedural, the FRCP is valid
o Solution? P tries to create a subcategory of procedural-yet-substantial
Issues: FRCP were made by SCOTUS, and they are now holding that their own rules are valid under the REA.
Rejoinder: the rules are submitted to Congress before theyre enacted.
Phases of Litigation
2. Pleadings: The Complaint
R11 Attorney must sign a pleading and say she knows there is evidence in support of the claim
Action commenced in federal court by filing a complaint (R3)
R8(a) in the complaint:
1. Show there is jurisdiction
2. Short statement of claim showing you are entitled to relief
3. Relief sought the $
No legal theory necessary, but the substantive law must be implied [else 12(b)(6)]
No specificity required Sierocinski exploding caps
Notice Pleading = Conley racial discrimination
dont need to list evidence; purpose is to put D on notice that hes being sued
Twombly rebalanced in favor of D and made pleading rules more specific requiring plausibility

Plausibility Test Twombly phone conspiracy says you must invoke a law; Iqbal couldnt prove racial
8(d) alternative claims are ok -> might not know details ahead of time
3. Answer/Motions in response to a complaint
D has 2 options (2 different documents) to respond to a complaint:
R12(b) Motion to dismiss comes first:
7 exceptions have no reason
12(h) Waiving Defenses
o NEVER lose lack of SMJ defense
o Can lose defenses 2-5
o Can bring up failure to join under 19 and failure to state a claim even at trial
12g Joining Motions: can join as many as you want, but you only get 1 shot at motions that were available to
you; thus, if you 12e move for a more definite statement, failure to state a claim was not available to you
R8 b +c Defenses in Answer
8b - factual denials -> if you dont deny, its admitted
o can deny part or all of a claim
o can say you lack enough info to know if claim is true (is in effect a denial)
8c Affirmative defenses -> even if P is right, I am not liable
Answer must be more specific than Ps complaint trying to identify the issues in contest
D only responds to what P already identified
o Specificity of the answer depends on specificity of the complaint
o Reason to give more specific complaint = discover more w/the answer
Other Options:
12e motion for a more definite statement (D uses when not enough details in the complaint)
12c motion for judgment on the pleadings (P uses if Ds answer is weak)
12f motion to strike; little brother of 12c; P uses to get rid of nonapplicable points
When P receives the answer -> does nothing unless court orders a response (R7)
4. Counterclaims = in the Answer
13a Compulsory: must state or you lose the right to bring it to court IFF:
1. arises out of same T/O
2. AND dont have to join a party over whom no jurisdiction (no personal or supplemental J ******COME
13b Permissive = any claim you have against other party that is not from same T/O
R42 court can choose to try them together or separately
Why do it? In case accused of them being compulsory later on and lose the claim
13g Crossclaim = may state against a coparty; MUST be same T/O
**********************COME BACK TO THIS
Same T/O Test (Williams Adultery)
1) Same cause of action (c of a never mentioned in FRCP) on/off switch
2) Same Evidence/Facts and witnesses
want to join CC for efficiency dont want to bring all same witnesses in twice
BUT, for justice, might want separate trials if witnesses say Williams has a bad rep for sleeping
around, jury in trial #2 might believe he did sleep w/Robinsons wife

3) Logical relation very fuzzy standard; its actually an experiential relationship courts like to try certain
claims together
5. Amendments R15: Can amend any PLEADING: Always ask 2 questions:
I. 15a before trial as a matter of course
i. w/in 21 days after pleading OR
ii. **IF responsive pleading required (i.e.- youre waiting for an answer), 21 days after the
response is served/or R12 motion earlier; i.e if D moves, you now have 21 days to
amend your complaint; if D then serves an answer later, the 21 day period does not start
iii. OR, if parties consent or court gives leave should do so freely; freer = earlier
II. 15b at trial
i. If evidence is presented that is not w/in the pleadings SURPRISE evidence (protect
yourself w/good discovery!)
ii. UNLESS, will prejudice the respondent opposing the amendment respondent wont be
able to respond w/own evidence effectively
iii. After trial, conform pleadings to the trial we had
2. DOES IT RELATE BACK? (and thus you can backdate it)
I. Law w/applicable SOL allows relation back OR
II. Same T/O in pleading OR
III. If you want to change the D in your pleading, must have:
i. same T/O AND
ii. new D knew that originally named D was served AND that, but for mistake, it knew or
should have known the action would have been against him
new D in amendment must have known about the suit w/in the SOL
If not, new D can claim SOL as a defense
To avoid amendments:
1. Less specificity in original complaint/more ambiguous pleading: they were negligent
2. Discover find out facts beforehand and amend earlier
6. Disclosure & Discovery
First, you have a 26(f) Conference of the Parties Counsels make a discovery plan and submit it to the court
26(a)(1) Mandatory Disclosure
1. Witnesses/anyone you are going to use
2. Documents youre planning to use at trial does not include those you might use
3. Damages and how you computed them
4. Insurance that might cover you
(2) Expert testimony and written report of their opinions, qualifications, and compensation
(3) evidence you may produce at trial
EXCEPT: Anything to impeach/catch someone in a lie
Discovery proceeds w/cooperation of the parties. Court isnt involved unless theres a problem (or R35 motion)
Deposition on
Oral Questions



For non-parties
For parties can ask followup Q (cant in written depo)
Confrontational atmosphere
hope someone will

Use at Trial/Supplement/Court
R32: Use at trial IFF Party was at
the depo or had notice of it AND as
its ok with FREvidence
2) To impeach someone

crack/expose lies

R31 Deposition on



Less $; attorneys glaze

could help show how theyre
looking at the case; flesh out
the legal theory if the
complaint was broad

R34 Request
for Documents,
entry onto land


duces tecum

Get the evidence you want

to bring to trial

R35 Mental
Physical Exam


R36 Request
for Admissions

For less important witnesses


4) if someone is not
available/dead/too far
LIMITS: Court can limit # and length
30(e) deponent can review and
edit deposition w/in 30 days
Court can limit #

R33: Use at trial according to

FREvidence (exception to hearsay
since its a party)
Not binding (see Freed) BUT duty to
Court can limit or add to # (youre
limited to 25)
Docs can be used as evidence
Must supplement

Semi-it; show someones

crazy; personal injury cases

Re-think and commit

cements other partys
*Which are helpful for SJ? pleadings, affidavits, discovery, disclosure

No response = its admitted

Must supplement
Court can limit #

SCOPE OF DISCOVERY R26(b) What is allowed?

1. Nonprivileged no Dr/patient; lawyer/client; spousal; religious
a. Only person who could assert privilege at trial can resist discovery on the grounds of privilege
2. Relevant to any claim or defense
NOTE: Need not be admissible at trial
o Hearsay is ok it might help you find out where to get more info/admissible evidence
On motion, court can order discovery of any matter RELEVANT TO THE SUBJECT MATTER
R26(b)(2)(C) - Limits on scope on motion or on its own, courts must limit if:
1. Unreasonably cumulative or can come from another source
2. Party wanting to discover has had ample opportunity to do so before
3. Burden of discovery outweighs the benefit
Can limit: # or length of deposition, # of interrogatories, # of requests for admission
26(c) - Protective Orders on motion:
If annoyance, embarrassment, undue burden or expense:
1. Forbid discovery
2. Different method of discovery
3. Forbidding inquiry into certain matters
4. Sealed deposition opened only if needed
5. Trade secret not be revealed
26(e) Supplementing (added in 1993) when you find out new facts. Is required of:
1. 26(a) disclosure
2. 33 Interrogatory

3. 34 Production Request
4. 36 Request for Admission
R30 all parties must agree to a deposition; otherwise you have to get courts permission
Courts leave also required if more than 10 depositions under 30 or 31; OR if the same deponent has
already been deposed
Must give all parties NOTICE of who you want to depose and if youre serving a duces tecum
Must object at the time of depo (or lose right at trial) but the depo carries on UNLESS you move to end
R33 You must object with specificity; no more than 25; can ask application of law to fact
R36 if you attempt a motion not to discover, you will probably fail; privacy trade-off for justice the info
R37 Motions and Sanctions for failing to comply w/discovery or disclosure
Party can motion to compel discovery must show you tried to get the other party to cooperate
Can move for 26(a), 30, 31 33 or 34; not 36 why? If a party does not respond to a request for
admission, it is assumed admitted
Can be sanctioned for failing to comply w/above orders or 35 (because its a motion and thus ordered) or
26(f) conference
R16 - End Discovery w/a Pretrial Conference not mandatory; court ordered. Parties should know when
Discovery is coming to a close.
includes summary of evidence, witnesses, etc. Want to facilitate settlement and the judge may ask for
evidence upon which to rule JMOL or SJ.
Discoverys Relationship to the Pleadings
Deposition cannot ask about the law; only about facts (see Bradenberg must answer any factual basis for
your claim)
Interrogatory can ask about theory of law applied to the facts (R33(a)(2)) BUT not about pure legal theory
can ask Explain the manner in which I violated the Constitution (OBrien)
7. Pretrial Termination
1) R12(b)(6) Failure to state a claim
2) R12(c) Motion for Judgment on the pleadings
P moves (D would use 12b6)
o Must accept as true everything D says:
8b Ds factual denials
8c Ds affirmative defenses
Complaint only the facts D admitted
o NO LEGAL DEFENSE use if D accepts all relevant facts of the case
3) R12f motion to strike kill off some of Ds answers defenses
In all 3, the movant must accept all of opposing partys statements as true
No need for a jury; no need for discovery = NO FACTUAL DISPUTE
R56 Motion for SJ
Either party on all or part of the claim; until 30 days after close of discovery
Standard for granting: if affidavits show there is no genuine issue as to any material fact and the movant is
entitled to JMOL
Respondant opposing the motion for SJ must set out specific facts in controversy cant rely on pleadings
56(e)(2) added in 1963 (see AA v. Ulen)
If move for partial SJ, court decides what facts are not at issue including damages and relief and specifies
them as settled in the action

R41 Voluntary Dismissal

1. No preclusive effect/without prejudice; D might settle w/assurance he can sue later
R55 Default Judgment if:
1. D never files an answer
2. D fails to comply with a court order during pretrial and default J is penalty
Can set aside default J under R60(b)
8. Provisional Remedies
R64 Seizing a Person or Property = Goods and $ (provisional remedy at law)
Remedies under state law are available; why state law? Remedies under state law are long and
lots FRCP dont want to reinvent the wheel
Attachment seizing of property before judgment
Garnishment debt owed to D by a 3rd party
R65- Injunctions and TROs = Conduct and Actions
(b) TRO
Standard = Immediate and Irreparable Injury before the hearing
A TRO is issued Ex-parte = 1 party w/out the other (no notice to other party)
If granted -> shifts losses from P (movant) to D
(a) Preliminary Injunction = mini-trial that can last a long time
Standard is omitted -> look to case law; Conscious decision not to codify would be too long and
Case Law Standard:
A. (1) Probable success on the merits AND (2) possible irreparable damage
B. (2) Serious questions on the merits AND (1) balance of hardship for the movant
o (1) Harder to prove
o (2) Easier to Prove
The strategy is Risk Aversion - Want to minimize the effects of a wrong decision; criticism of equitable
provisional remedies is that they are only as good as the judges ability to predict the winner
These are preliminary decisions predictions about what will happen in the future, and you could get it wrong
A is What would happen anyway (P would win) + prevent accrual of greater losses
B is 50/50 on who is going to win, but the loss will be huge
Criticism of provisional
65(c) Security = P puts $ in escrow as insurance -> in case D wins in the end and D incurred losses as a result
of being wrongfully restrained
Problem = how much should the bond be? It can be a deterrent to asking for a TRO or PI
The current test is the 4 factor test:
whether P will be irreparably harmed if PI is denied
whether the harm to P if PI is denied will exceed the harm to D if PI is granted
whether P is reasonably likely to prevail at trial (>25%)
whether public interest is affected by granting or denying PI
9. Trial Motions
Ps Case-in-Chief =
Prove the complaint
Ds Motion for JMOL
Ds C-in-Chief
Defend Answer
Ps Rebuttal

50(a) JMOL once a party has been fully heard on

an issue, before the case submitted to a jury

Due Process = Cant JMOL after youve made your

own case

If you JMOL and its not granted, you dont forfeit

the right to show your evidence

More opportunity to JMOL = more opportunity to

save time and end the case

If nonjury trial -> 52(c) Judgment on the Partial Findings is the JMOL equivalent

50(b) Renewed Motion for JMOL = if you dont JMOL during trial, you lose the right to do so after trial
Most parties will JMOL at the end of evidence to preserve the right
59 New Trial = doesnt grant the judge more power; its just taking the case away from this jury; not denying
the right to a jury trial
50(a) JMOL Standard for Granting Reasonable Jury Would not Find Evidence for respondant
1) P must prove A + B + C -> no evidence on C
Motion for JMOL on C is granted
2) P must prove A + B + C; A + B proved, some evidence of C, but its hard to decide definitively
Judge must decide what a reasonable jury would find the degree of evidence
Look to the 3 Rules of subjectivity:
1. Reid evidence equally in 2 directions -> party w/burden loses
*Only when respondant is party w/burden P has burden and D moves for JMOL
2. Cruzan mere disbelief of evidence evidence in support
3. Incredibility Doctrine
3) P gives A + B yes, some evidence C; D counterevidence = A, B, and C is overwhelming disproof
DENIED determinations as to whether the witnesses are telling the truth are always for the jury
4) A, B, and C all have evidence given; D rests; P moves for JMOL Can the jury just believe Ps witnesses?
COME BACK w/Burden of Proof
10. Judgment
R58 Entering Judgment = very specific/formulaic for specificity = we need to know exactly what happened in
judgment/what verdict the jury returned; need the date set in stone because there are time limits to appeal, grant
new trial, etc.
3 parts of a judgment:
1) Relief = Awards; R54(d) get the relief you are entitled to/what you deserve may differ from the
pleadings, unless it is default J
i. Money = Law
ii. Injunction = Equity
iii. Declaratory = Equity?
2) Enforcement - R69 $ enforced by writ of execution; standard is state law, i.e. state enforces law
a. R69, winner can use discovery to find out where loser had assets
i. R65(d) court enforces a PI or TRO, i.e. court enforces equity
3) Costs P should get reimbursed for all except attorney fees (although civil rights cases are an
1, 2, and 3 are all at courts discretion
R57 Declaratory Judgment
What are the limits? It is kind of like a provisional remedy because people use it to prevent future
Court could say you need to wait until you have an injury-in-fact (see Longshoremens) OR preventing
accrual of avoidable damages is what declaratory relief is for (see De Bothezat fans)
How can we reconcile De Bothezat and Intl Longshoremen?
Easier to decide private K law than constitutional law

Distinguish by the degree of harm would give declaratory judgment in a criminal case because the
harm would be much worse than in a civil case; or degree of threat De Bothezat clearly threatened
w/a lawsuit
Degree of adversariness what is concrete at this point? If we let it play out, well see the concrete
results -> Proximity to controversy; De Bothezat was 1 step closer to controversy
o In Longshoreman, court waited until there was 1 person with real harm

11. Appeals
Order: District Court -> Circuit Court of Appeals -> SCOTUS
Regulated by 28 U.S.C:
1291 Final decisions can be appealed
Final decision final judgment; a final decision is narrower technically, you can appeal any decision
made on an issue -> When you appeal, you are saying 1 decision infected the entire judgment of the case
i.e. the judge wrongly denied my motion to admit this evidence, and thus I lost the entire case
o Important to identify which decision is being appealed
BUT, usually, all issues must be decided before you can appeal; have to wait and appeal all at the end
for efficiencys sake -> what if you win in the end, i.e. the decision you would have appealed did not
hurt you?
R54b if multiple claims, a judge can release 1 claim w/a final judgment; it can then be appealed
EXCEPT: Interlocutory SJ on liability can be given separately before damages are settled (56(d)(2))
Usually dont allow appeal of non-final judgments
1292 Interlocutory orders can be appealed = primarily PI
(a) PI from R65, but they are seldom successful
(b) District Ct. asks for a question of law AND Ct. of App. accepts
1254 - Ct of App -> SCOTUS
Writ of certiorari OR
Certified questions (like 1292(b) requirements)
No final decision requirement some cases might need speeding up in the national interest
1257 State Ct. -> SCOTUS = only the highest court in the state; must have FQ or a state law is repugnant to
Constitution, federal statute, or treaty
Direct appeal = to the higher court; i.e. circuit ct. -> SCOTUS; on the merits of a judgment, alleging errors of
law or fact
Collateral appeal = to a court based on validity of a previous judgment; i.e. states highest ct. -> SCOTUS
alleging the previous judgment was not valid

II. Federal, State, and Other Nations Courts: Choice of Courts and Law
A. Subject Matter Jurisdiction and the Potential for Multiple Forums
1. Article III and Statutes: FQ Statute
*Can you get in to federal court?
State courts are courts of general jurisdiction they can hear anything, including what the federal courts can
hear; jurisdiction is concurrent
Federal courts are courts of limited jurisdiction: Limited by Art. III 2 1
1) Arising under the Constitution, laws, treaties of USA -> FEDERAL QUESTION
2) Ambassadors and Public Ministers (fed. bias)
a. ORIGINAL J no stripping
3) Admiralty and maritime
4) US federal bias -> even if state law, goes to federal court when the US is a party
5) State A v. State B -> even if only state law (anti-state bias); preventing state judicial wars
a. ORIGINAL J no stripping
6) Diversity of Citizenship CitState A v. CitState B

1+3 are about topics; 2, 4-6 are about parties = all are topics of federal concern
2+ 5 = original J in SCOTUS -> cannot be stripped
All the rest are appellate, and thus subject to exception
Congress makes the lower courts. The 1 st were set up in Judiciary Act of 1789 to collect tax $$.
Courts of Appeal depend entirely on existence of lower courts.
District Court Jurisdiction Comes entirely from 28 U.S.C.
1331 Federal Question
Civil actions arising under same language as Constitution
1337 Commerce and Antitrust
1338 Patent and Copyright, trademark
o an example of when Congress has given Art. III jurisdiction exclusively to the federal courts
states cannot hear Patent claims
1343 Civil Rights
All of these statutes are redundant given 1331 FQ used to have a $ amount requirement; they kept
these in case the $ amount is put back in
1332 Diversity of Citizenship
$75,000 amount-in-controversy requirement
o under goes to state courts Congress wanted to limit workload of district courts
Relationship between Constitution
and Statutes:
Creation of lower courts is
discretionary -> Congress can take
away SMJ or make it exclusive

Congress can't give

this; cant ADD Fed.
Art. III.2
Jurisdiction Congress must still
give to Federal
Court via statute

1331 FQ Jurisdiction
Well-pleaded Complaint Rule:
FQ must arise in the complaint (not
Exclusive: Congress
can make Art. III.2.1
anticipated in the answer)
exclusive (see 1338
**P is master of the complaint
see Mottley: the FQ arose in
an 8b affirmative defense,
even though they tried to
put it in the claim
SCOTUS interprets statutes different than the Constitution
o Can remove to federal court if a constitutional question arises in the answer (just not a federal
statute question)
o Art.III applies to all federal courts
o 1331 only applies to district courts; statute is interpreted more narrowly
Formalism v. Realism youre stuck in state court if the constitutional question arises
later and cert is denied
2. Federal Diversity and Removal Statutes 1332 and 1441
1332 Diversity of Citizenship main purpose is to remove bias to out-of-stater in state court

Moves to IL after arm shot off in OK citizenship is established at the time the claim is filed, not when
the events occurred
Its ok to move w/the intent of creating diversity
Test of Citizenship:
1) Physical presence/an abode
2) Intent to stay (the absence of a present intent to leave)- Decided by the circumstances and is objective
COMPLETE (state) DIVERSITY required narrower interpretation than Constitution, just like well-pleaded
complaint rule
1) baby is born w/no intent to remain = same as parents cuz a baby is usually w/its parents
a. Problems: divorce/joint custody; transitory students
2) Wife = w/husband in the same home
a. Statute has not changed, but you cant argue this one, so its dying out
3) Traveler = keep old place of citizenship until you establish a new one -> always have 1
4) Lived in MO -> moves to London indefinitely
a. HOLE in the statute: a US citizen w/no state citizenship
i. Could apply R#3 action commences when filed; thus they have no state citizenship at
that time
5) P Md v. D Foreigner who is a resident alien of MD -> no diversity; US law determines state citizenship
a. State citizenship national citizenship
Legal representative = only has same citizenship as the person they represent (dont want to create diversity by
assigning an out-of-state representative)
1332(c)(1) = Corporate Citizenship -> corporations CAN have dual citizenship
1) State in which they are incorporated
2) State in which the Principle Place of Business (PPB)
a. Adding this duality is constitutional because it subtracts SMJ from the federal courts; there will
be fewer complete diversity cases
b. PPB Test: Kelly ruled activity center; Hertz (2010) overruled in favor of the nerve-center
where the decisions are made
i. Is the concept of PPB pass? What about decisions made on Blackberries/remote locales?
ii. Or is it best to have a uniform legal standard for now?
c. If you sue an Insurance co. = citizen of the co. they insure and where they are incorporated;
fewer federal diversity cases when suing an insurance co.
1441 Removal transferring a case from state to federal court (no removal from fed -> state); 1% of cases;
you remove to the district court in the same state where state court action is pending; P loses more often in
removed cases
Ds choice; veto Ps choice of forum all Ds must agree to the removal
Youre only in state court if:
o No original Art.III Jurisdiction (FQ or Diversity)
o There was Art. III J, but D doesnt care
o Filed in Ds home state
Much of Federal Ct. Jurisdiction is not concurrent because it can be removed
(a) District Court must have original Jurisdiction (incorporates the SMJ statutes)
(b) If FQ is the original J, no other requirements for removal; FQ = REMOVABLE (if FQ in well-pleaded
complaint, that is, or constitutional question)

(b) If diversity is the source of jurisdiction, the state court cannot be Ds home state (theres no bias against
him there)
(c) If FQ claim is joined w/non-removable claim, can remove the entire case; District Ct. decides whether to
keep state law claims or send them back to state court (see Supp. J??)
a. NOTE: This does NOT apply to diversity cases; P can use it as a tactic
3. Choice of Forum- 1391: Can you serve D?
1391 Venue
(a) Only 1332 Diversity Jurisdiction: When action is brought
(1) district where any D resides, if all Ds reside in same state (reside citizenship)
(2) events occurred or property that is subject of the action is
(3) FALLBACK: If neither 1 or 2 is possible, a district in which any D is subject to personal
NOTE: this is only if there is more than 1 D (otherwise #1 is possible)
You may still encounter the problem of D #2 not being subject to personal jurisdiction, and D #2
could move to dismiss.
(b) Other kinds of jurisdiction FQ (1331 or other):
(1) and (2) same as above
(3) If neither, a judicial district in which any D can be found
Why no personal J requirement? Must be a forum in which to bring FQ cases.
(c) Corporations: reside in district where it is subject to personal jurisdiction at time action is brought
(d) alien can be sued in any district
R4 Service of Process Notice to D; subject D to adjudication
4(e) unless theres a federal statute stating otherwise, you can serve someone according to the state law OR
delivering the summons in-person, leaving it at Ds house w/an adult
4(k) territorial limits of service
(1) serving someone establishes personal jurisdiction over him if:
A. he is subject to jurisdiction in state court where the district court is
B. he is a party joined under 14 3rd party or 19 required joinder and w/in 100 miles
C. If a federal statute allows the service (like DECA in Cartier problem)
B. Applicable Law in Cases Involving Multiple Jurisdictions
1. State Law in Federal Court: The Erie Doctrine In Diversity cases, federal courts must follow the law that
would be applied by the courts of the state in which they sit
***A federal judge should assure the suit comes out the same way in federal court that it would have in
state court; we are talking about 1332 diversity cases
1332 = Federal Court interpreting STATE law
Procedure FRCP apply only in Federal Court
Some Federal Court law = federal case law (frcp)
*What is the difference between state law and FRCP/fed. case law?
Swift v. Tyson - 1938
SCOTUS says Rules of Decision Act laws of the several states only means state statutes. Federal courts are
not bound to follow state common law.
In absence of a state statute, do NOT follow state case law
Erie RR v. Tompkins
Tompkins was hit by a RR. If Tompkins brought the case in PA state court (where the action occurred), the
common law of PA would be the rule of decision. PA common law said he was trespassing, and he would lose

automatically. He chose NY District Ct. under Diversity Jurisdiction (RR was incorporated in NY; Tompkins
was PA citizen). District court follows federal common law that he was a licensee, a tort, and awards
Tompkins $$.
Holding: SCOTUS reverses.
Erie doctrine:**Unless a federal law dictates, state law is supreme. Federal courts are bound by state statutory
AND common law. Federal court must apply state law to substantive questions. Federal law is ok for rules of
Swift v. Tyson


Erie RR v. Tompkins

Common law exists the judges job is to find it

State court cases are attempts to find it, but they
can be wrong (federal court is better)
Uniform law want states to cave in and
follow the federal law
Good for commerce


1652 Rules of Decision laws of several

states only means statutes

No common law exists: we make it up

and it evolves Judges make it
Positive law Judges are legislators
No uniformity; states stayed put and held
on to their decisions
Hard to apply the distinction between
statutory and case law
2 laws guide daily life RR doesnt know
until its in court which law to follow
Art.I 8 Congress can govern states
powers, so judiciary cant
1652 laws means ALL state laws
Constitution equal protection;
Tompkins got to choose between 2 laws;
if a New Yorker was hit, he would have to
go to NY court + follow NY law

Congress and SCOTUS came together to change everything: Erie was decided the year the FRCP came out.
The difference between substance and procedure still defines federal cases.
Is the burden of proof a substantive or procedural rule?
o In City Services Oil Co., SCOTUS rules that is Bdn. Of Proof is a substantive rule.
o In Palmer v. Hoffman, SCOTUS says the burden is not in the FRCP, so federal rules dont apply.



Federal (Swift)

State (Erie) (reinterpretation of Rules of Decision Act)


State (Conformity Act)

Federal (Rules Enabling Act = FRCP)

Substance = All State laws

Procedure = Federal FRCP and case law
1332 Diversity means at least 2 states laws apply: citizenship of parties and where the T/O occurred
Which states law do you apply?
Choice of law = Pointer rules of each state: where the T/O occurred, state of performance, etc.
o IDEAL accident of forum doesnt determine the application of justice
o But, different states have different choice of law rules; they are a kind of common law and thus
there is no uniformity to them
o Klaxon federal court follows the choice of law rules in the state in which it sits.
Replaces Sibbach court was choosing the choice-of-law for her case and saying to look
to IN (cause of action where the claim arose)

COURT prevent forum shopping w/in a state state-to-state forum shopping is ok; it exists because
states exist)
2. State Law in Federal Court: Modern Hanna Approach
1332 Diversity of Citizenship Jurisdiction:
2. If state law, which states law? - Klaxon rule: State in which court sits.
Congress could pass Federal choice-of-law rules which state and federal courts would have to follow
(but they havent)
1. When do you follow state law and when do you follow federal law?
#1 Potential answers:
1) Erie = substance-procedure test
2) Guaranty Trust = its often hard to tell the difference between substance and procedure
a. Anything that changes the outcome is substantive outcome analysis test
b. This gives most power to the state laws -> almost everything changes the outcome
3) Byrd 2 Part Test:
a. Is there a state package of substantive and procedural rule?
i. If yes, federal court must follow the state law
b. If there is no package, balance the federal-state interests (political, open-ended)
Hanna 1965 modern approach:
R4(e) leave at abode service of process was directly in conflict w/MA service of process in-person rule.
1. FRCP 4(d) applies if it is valid under the REA
2. Look at the reasons behind Erie:
1) Prevent forum-shopping
2) Unequal administration of the law (2 rules in daily life for the in-state citizen the federal common law
on negligence v. the PA state law on trespassing (Tompkins got to pick between PA state court and NY
federal court)
1+2 are a modified outcome test takes the degree of difference:
1) Forum shopping: Law must have a substantial effect; will the attorney notice and choose federal court?
(Ps eyes)
2) 2 rules to guide daily life if a reasonable person knew about the law, would they change their conduct?
(Ds eyes)
3) Erie doesnt matter its only applicable when there is no direct conflict of laws
a. FRCP/REA If REA is constitutional, then the FRCP are valid
b. Art. I 8 = power to create REA, so its Constitutional
c. FRCP wins because of Supremacy Clause
Hanna Test of if a law really regulates procedure: first of these cases that uses an actual FRCP, previous
always looked at conflict with judge-made case law.


Is there an FRCP
directly on point/in
conflict with the
state rule?

YES. Test #1.

a) is it valid under
the REA?

b) Is the REA
Constitutional (yes,
cite Hanna)

Yes -> apply FRCP.

NO. only an "frcp"

(rule in federal case
Test #2.

a) Would frcp cause

someone to choose
federal court?

b)) Would it cause 2

rules in daily life?

Yes to either a or b > apply state law.

Why Test #1? Uniformity is more important than forum-shopping with respect to the FRCP.
Why not make common law frcp binding? Court doesnt want to give COMPLETE preemption by federal law
(only partial).
Modern cases still discuss the substance/procedure distinction, but it is in relation to Hanna not as black and
white as it used to be discussed.
Harlan dissent in Hanna Everything should be the frcp test -> allowing all FRCP creates Swift problems and
blows apart state packages. Now, state legislators have to know that an FRCP wont interfere when they create a
state package.
Walker shows the tension in Hanna SCOTUS rules that Hanna doctrine does not apply; R3 is not directly on
point with the state SOL law. We dont want people going to federal court under diversity to take advantage of
FRCP supremacy. An action based on state law should not continue through the federal court system when the
state statute would have ended it.
Problems in Hanna:
1) Application Difficult: Takes a lot of wisdom to know part 2, if it would change someones behavior
2) Difference between FRCP and frcp is fuzzy COME BACK
3) State packages can be blown apart there are lots of them, which pressures judges to decide if an FRCP is
really on point
3. Federal Law in State Court: Reverse Erie
1) Federal Law in State Court
Federal Statutes
Federal common law: Art. I 8 = if Congress can create it, it can be federal common law; gets
supremacy treatment over state law
2) Fed. Common Law made -> can be displaced by later federal statute; its provisional
3) Can state apply its procedural rules to those actions?

SRCP are rarely followed; FRCP take precedence (Supremacy Clause)

1) If Congress explicitly passed a statute making it applicable in state court (preempting state law) -> state court
must follow it
2) If not, state court decides/interprets the law itself (unless SCOTUS has ruled on it)
State courts do not make federal law; they merely apply it. The problem is sometimes state courts will have to
guess how SCOTUS would interpret a federal law. State and federal courts are simultaneously interpreting the
same law differently.
**Erie and reverse-Erie: court should apply the other sovereigns existing law as it thinks the other
sovereign would (apply, dont create law, of the other jurisdiction)
C. Mixed Federal and State Claims and the Expanded Federal Forum
1. Multiple Claims and Parties: Original Jurisdictional Response
If a district court has no statutory SMJ over a claim, we can find SMJ:
Old terms: Plaintiff Adding J = Pendent Jurisdiction; Defendant Adding J = Ancillary Jurisdiction
When is there supplemental jurisdiction?
1. What is a case under the Constitution? 3 state claims + 2 federal claims: are they all 1 case or separate
CNOF CASE TEST: Common Nucleus of Operative Fact (Gibbs) all claims must be (1) same
evidence or (2) logical relationship/experience. Rejects cause of action in T/O test.
If P seeks damages on a FQ, the court takes all claims. If the FQ claim is dimissed, the court is stuck
w/only state claims. Court has discretion to take claims or not.
o This was NON-STATUTORY JURISDICTION. Congress had not given the courts this J.
Supplemental J is convenient and sometimes necessary (when you cant sue someone w/out suing
someone else too)
2. If you claim theres a FQ, is there really a FQ claim? What are limits on arising under in 1331?
A claim is a FQ if the plaintiff states his claim in terms of a FQ Plaintiff is master of the complaint
EXCEPTIONS: 1) Ps intending to establish fed. SMJ never invoked because hard to prove; 2)
Frivolous (dismissed under 12(b)(6) and cant sue again under res judicata) or insubstantial claim
(12(b)(1) dismissal can sue again on; look up case law to see if the claim is foreclosed by precedent;
otherwise, its substantial and ok)
2. Modern Supplemental Jurisdiction: Old non-statutory J is codified in 28 U.S.C. 1367
Can you sue a 3rd party? Different question than does the court have SMJ.
1) CNOF test.
2) But, if original claim is based on Diversity jurisdiction -> look to 1367.
R14 3rd Party Claim = P v. D -> impleader (liable to D) 3rd party practice (T/O required in rule) -> D brings
in, usually D says, this implead party is liable to me/should pay the $ that Im being sued for
R19 Required Joinder = multiple parties, multiple issues (required unless SMJ or service of process cant be
R20 Permissive Joinder = multiple parties, multiple issues (same T/O in rule)
R24 Intervention = a party wants to join as P or D
Exceptions in 1367(b)
R13(g) Crossclaim to a coparty = P1 and P2 v. D -> Ps start suing each other (same T/O required)
R13(a) + (b) counterclaims (T/O required in a but not permissive b)
R18 Joinder of Claims = same parties, multiple issues
R22 Interpleader = 2 people claiming rights to 1 fund; P v. PP 1 and PP2 (punitive plaintiff)
R23 Class Actions; P or D can be the class

Old Supplemental Jurisdiction:

1) Is there statutory jurisdiction over some of the claims?
If yes -> do the other claims arise from the same CNOF? Yes, then pendent or ancillary jurisdiction.
2) EXCEPT: Allowing it would undercut 1332
Complete diversity ruined
$ amount not met
Punitive plaintiffs joined under 19 or 24 cant destroy diversity
3) If #1 is met and you can possibly have supplemental j, the court may exercise discretion not to take the case
1367: Test:

Is there SMJ over at

least 1 claim? Yes ->

Does the supp. claim

arise from same case
or contr. (pass CNOF
test)? Yes ->

Is there an exception in
1367(b) & Diversity
would undercut? No ->

Jurisdiction exists.

a) same FQ test as old supplemental jurisdiction is automatic if theres a FQ

b) Diversity is similar to #2: undercutting $ amount and Complete div. is not allowed if:
Ps claim against a party joined under 19 or 20 (required and permissive), implead D (14), or intervenor
o [OK over interpleader (22)]
Punitive plaintiff claim (joined under required 19)
o [OK to take Ps claim if P was joined permissively under 20]
Punitive plaintiff under 24 (intervenor)
BUT, if the claims do not undercut 1332 requirements, they are fine
c) same discretion available to the court i.e. if there is a complex state law claim
*A punitive plaintiff under 19 or 24 can be a D its just a party joined and then asserting a claim for $
*Everything must pass CNOF
*Dont try getting around 1332 requirements
*All claims by D are ok (except permissive counterclaims under 13(b) because they dont pass CNOF)
Class actions are not an exception ever; R22 interpleaders are not an exception
Original P cant cross the lines
D can cross (unless D is an intervenor OR permissive counterclaim not
Supplemental J under 1367
same T/O).
Intervenor P

3rd Party D
Intervenor D


III. Fact-Finding and the Adversary Process

A. Law and Equity in the USA and Rule 2
1. Law and Equity


More just but

In the US, there used to be courts of law, which followed state

(procedural) laws under the Conformity Act, and courts of equity. Then came R2 There is one form of action
the civil action.
1. R2 did not get rid of statutes which distinguish between law an equity or the 7 th Amendment right to
trial by jury
We inherited the law system from England, where there were about 160 legal writs you could file, each of
which corresponded to a legal rule/right.
There were many types of courts, but only 1 survived: the Kings court because of its right to jury trial.
Writ A = legal wrong A -> jury was unsophisticated and could only decide 1 legal issue at a time
All law courts developed a procedure by 1700s:
1) choose a writ (area of law) (8b)
2) D has 3 options
a. Demur:
i. General no legal wrong (12b6)
ii. Specific wrong words/technical
b. Dilatory Plea wrong jurisdiction; postpones trial and P goes to new court (R12 1-5, 7)
c. Plea in Bar:
i. Traverse denial of fact (8b factual denial)
ii. Confession & Avoidance (8b affirmative defense)
3) P replies (FRCP assume this/automatic denial)
a. When theres eventually a traverse, it went to the jury
Post-Jury Options: 1) Motion in arrest demurrer again or 2) Motion judgment n.o.v. ( both like R50 JMOL)
The FRCP are like the Old English pleadings history of R12
Butno joining claims (writs) or parties, no discovery, amendments/relation back, no inconsistent pleading ->
strict pleadings not construes as to do justice
Law may have died out without the creation ofEQUITY
Equity did 3 things:
1) New subject matters divorce, fraud, wills
2) New defenses relief against claims (many contract law defenses)
3) New form of relief equitable accounting, injunction
Competition -> law courts saw the equity courts were taking people and created new writs & defenses
Equity Maxims: Problem was Justice varies by the length of the judges foot
1) clean hands (Carmen case in which actress for skipping out on K and being morally wrong)
2) Equity itself does not give relief when there is adequate relief at law self restraint (Carmen went to the law
and got damages there tortious interference w/K)
3) He who seeks justice must do justice conditional relief, i.e.- Willard hotel; well give you specific
performance if you pay in gold instead of the depreciated greenbacks
4) Balancing of interests P, D, public interests
R2 combined law and equity so you can now invoke all legal wrongs (writs) AND all equity maxims.
Pleading a claim, you dont need to show a difference; can plead law and equitable remedies
Pleading must be specific enough so D knows why hes being sued

R54 get the relief youre entitled to (not what you requested) -> doesnt matter in the pleading; well
get to the judgment later, whether its $ or equity
How do you decide which claims are at law and which in equity?
STATES: choose their own. 7th Amendment doesnt apply to them
FEDERAL: Quasi-historical test of 1791 (when Constitution was passed): If it would have gotten a jury in
1791, it gets one now.
Law = witnesses went to the jury
Equity = only depositions were heard (no jury)
In 98% of cases:
Law = $ damages
Equity = injunction to do something
If you request an injunction, but theres an adequate remedy at law -> sent back to law court
2. Jury Trial in Mixed Cases
Problems: (1) L + E claims are joined in the same case and (2) facts in common to L + E claims
R38 7th amendment right to jury trial is preserved
(b)demand a jury trial w/in 14 days of last pleading about issue
(c) specify the issues you want heard by a jury
(d) right can be WAIVED if you dont demand properly
R42(b) Separate trials = judge can choose the order in which to hear claims
4 Historical Approaches at the State and Federal Level:
1. Divide the 2 claims -> 2 separate trials
Potential for 2 different findings
2. Equity 1st and the judge cleans up law claims by deciding same way as E claim was decided
3. Law 1st -> just must then decide equity claim as jury did in law claim
This is current federal approach the jury, in effect, decides both claims
4. Essentially is the claim more law or more equity? -> judge decides how its tried
Post-1938 Federal Approach: Beacon rule
**In cases w/both law and equity claims based on the same facts, try the legal claim first to preserve right to
jury trial
Issues of fact should be heard first to preserve right to jury trial
This changes the scope of the equity claim: FRCP provide more adequate remedies at law (maxin #2);
You can always deny a counterclaim
Dairy Queen: R53 masters means that many equitable claims actually have a remedy at law. An accountant can
assist the jury, so equitable accounting now has a remedy at law. But, justice Black is assuming the FRCPs
are law remedies -> R2 has abolished the distinction, so how do we know?
Other Issues: Historical movement has always been to move more cases from equity to law, leaving less up to
the discretion of judges and more to juries.
#1: Shareholders can sue a corporation for not taking an action it should have (ask the court to make the
corporation file a lawsuit it should have) Shareholder class actions are in equity. Court says this should be seen
as two claims: its (1) an equitable device (2) processing a legal (damages) claim. We use Dairy Queen rule
where legal claim is decided first. Should therefore be tried with jury.

Right to jury trial has expanded w/the FRCPs all FRCP can be used for all claims in either law or
If this is right, 99% of equitable claims can be transformed into legal claims, with underlying law claim
and equitable relief claim. But this did not happen. Why not? Just because cases can be decided in law
does not mean they should be.
Judges are not trying to kill off equitable claims. Are judges right to want to preserve injunction cases
for themselves?

Hypo #2: Landowner v. trespasser. Landowner sues for legal claim (writ of trespass) but wants equitable
remedy (injunction) -> court said try the equity claim first; we dont want equity to disappear.
B. Adversariness in the Trial Process
1. Discovery and the Work Product Doctrine
R26(b)(3) Work Product: cannot discover documents and tangible things prepared in anticipation of
litigation by anyone (representative/lawyer/secretary)
CAN discover:
o 1) not expert testimony (which wont be used at trial)
o 2) otherwise w/in scope of discovery non-privileged and relevant
o 3) IFF a) substantial need, b) unable to get w/out undue hardship and 3c) substantial equivalent
unavailable by other means = these are necessity defined
Can never discover legal theories or mental impressions black it out (can only ask in R33 and R
(c) can always discover your own statement (but the other party can depose you before giving it ->
(5) if you are claiming privileged material, must clearly say so and describe the docs you are
Work Product Doctrine:
Opposing counsel cant ask other counsel for his work you cant be a lazy lawyer
Only discoverable if NECESSARY:
o Witnesses who cant be deposed (death, etc.), Impeached, Info hidden in attorneys files
o necessity exception means attorneys wont write anything down -> dont want to create a record
1) Want to discover notes between Hillary Clinton and Sec. of Interior
a. If not prepared in anticipation of litigation -> discoverable
b. If she was a counsel -> NOT discoverable
c. If you are the Sec. of Interior -> discoverable because your own statement
d. If you want to depose Hillary and ask about a meeting while she was the counsel -> not
discoverable because its the same info by analogy
i. If you are orally trying to discover whats on the document, WPD protects it
2. Production and Persuasion Burdens
Burden of Proof = 2 ideas:
1) Burden of Production for the JUDGE
a. 1 party produces evidence so the other party needs to respond or they will lose the issue
b. somewhat arbitrary who has the burden; usually if you plead it, you have the burden
c. Issue-by-issue
2) Burden of Persuasion for the JURY
a. Tie-breaker rule: party with the persuasion burden loses in the case of a tie
b. Promotes the adversary system youll work harder if you have the burden

Football Field: Issue X

Ps Endzone
Ps Production Burden -------

Ds Endzone
P must push ball into the
middle of the field ------------

- if P doesnt meet -> JMOL

directed verdict for D

If P pushes all the way into Ds

end, D has a Production
-if not met -> JMOL for P

Wine at a party decision: Issue X

Step 1 = Production: Judge decides what is so out-of-the-question that its discarded
Step 2 = Persuasion: Jury decides
Step 1- Pass the Product Test
Franzia = too bad
doesnt meet a good enough standard
(doesnt Ps production burden)

Step 1
Chateau Lafitte = too $$$
Doesnt meet a price standard
(Ds production burden)
Step 2 Persuade your jury friends
Other wines = nicely priced & taste good
- friends decide what to bring: Wine A or
Wine B? In competition -> if cant decide,
more expensive loses (Reid rule evidence
in both directions, party w/burden loses)

Issue-by-issue (P's issues, then D's issues)

Production = for the Judge
Persuasion = for the Jury

Standard to Prove = preponderance

(more than half/51%) of evidence

Evidence Rules for JMOL, Directed Verdict, and Summary Judgment:

1) Reid cow rule: If the evidence points equally in 2 directions, party w/burden loses no
preponderance of evidence
o equal is more likely when there is very little evidence
Cant use probability/mathematical formulas:
o Collins case: % chance that a blonde woman and black man would be a different couple is very
low; this is one of the most difficult problems in civil procedure
We allow common sense to go to the jury a witness who says yes, those 2 did it but
common sense is just statistics
Witness testimony is often wrong
2) Cruzan rule: mere disbelief of denial affirmative evidence (does NOT meet a persuasion burden)
o You cant say theyre lying and have it count as evidence
o Without this rule, every case would go to the jury. You have to produce some evidence.
o In most cases, its pretty easy to produce some affirmative evidence just say I heard it when
Ds witness says I never heard the slander
3) Incredibility Doctrine: if evidence is incredible/could never be believed -> inadmissible
o Conventional Science; must be REALLY incredible (otherwise issues of credibility go to jury)


Famous Players way to get around Cruzan; jury might believe 1 part of testimony and not another ->
goes to jury
o If an employer says I dont hire women, but I didnt hire her for a different reason

3. Trial Motions and Burdens

4 Motions
1) Summary Judgment (old directed verdict)
2) JMOL (old j.n.o.v)
3) Renewed JMOL
4) New Trial
New trial has different standard than 1-3
Objective = look at ALL evidence (R, U, and M movant)
Subjective = clear, strong feeling that an injustice has been done
Justification: youre taking the case away from this jury, not all juries
State Court Variations on granting motions:
1. All evidence = against the weight of the evidence (judge is the 13 th juror)
2. Only evidence favorable to the respondent (party opposing the motion) what would a reasonable jury find?
3. All evidence, but resolving all conflicts favorably for the respondent reasonable jury
4. Scintilla Rule rarely used; only a scotch of evidence for the respondent, and case goes to jury
2 components:
1. Objective Which evidence do you look at?
2. Subjective What do they say about it?
4 out of 5 times, the jury decides how a judge would; 20% of the time its different
Federal Approach to Granting a Midtrial SJ/JMOL Motion Deciding if the judge or jury decides an issue
Its the production burden because its not in front of the jury yet.
Movant = U - Any UNCONTRADICTED evidence
favorable to movant
No fight on these issues, and R would have benefitted
from resonding; thus, evidence must be it
Respondent = R all favorable evidence (P or Ds)


What would a Reasonable Jury decide?
3 rules apply (but they are soft and depend on case):
1) Reid: equally 2 direction -> w/burden loses
2) Cruzan: mere disbelief affirmative evidence
3) Incredibility
(If party w/the burden of proof is making the motion,
be more sensitive in applying subjective rules
reverse Cruzan: no evidence evidence)

Denying a motion means the judge is reserving the option for a jury to decide an issue; the jury may or may not
rule for the respondent. The judge just thought the jury could POSSIBLY rule for respondent. R-U standard is
designed so judge wont decide issues of credibility.
Pennsylvania RR v. Chamberlain
D has production burden to show Ps negligence.
P has 3 witnesses testify to no collision. This could be 400 it doesnt matter because people lie.
**credibility is for the jury
D has 1 witness who says I heard a crash and looked. This evidence is an inference he didnt see the crash
this led me to believe A. Ps evidence is directly to the contrary (non-A happened).
-> this reasoning is rejected because the strength of inferences varies; we infer all the time. Expert testimony
relies on inferences.

Allowing direct non-A to disprove inferred A assumes non-A witness are telling the truth -> jury should resolve
issues of credibility
R = D saying he saw the crash U = he was at a 3 degree angle (incredibility: couldnt have seen from this angle)
R U = Motion granted. Summary Judgment for P
Granting Trial Motion Examples
1. P wants to prove D was negligent. P says D drove 65+. D says he drove 55. Both move for JMOL.

Ps Motion (D is respondent)

Rs evidence = 55
No U

Ds Motion (P is respondent)

Rs evidence = 65

Reasonable jury could believe
= motion denied

Reasonable jury could believe

= motion denied
Case goes to the jury -> 95% of all cases which go to trial are this scenario.

He said/she said cases (most cases) rarely reach pretrial termination. Reaction is the judge is deciding what
the decision would have been.
2. P must prove Ds negligence. D claims act of god affirmative defense snow storm blinded me. Ps expert
meteorologist says it was 85 degrees in August in Phoenix. P moves for JMOL.
Ps Motion

Rs evidence = snowstorm
U = Phoenix & August (but the
temperature is disputed)

Reasonable jury
incredibility. Motion granted.

3. P wants to prove trespassing. 3 witnesses and D say D did not trespass. D moves for JMOL.
Ds Motion

Rs evidence = nothing/witnesses are

U = no trespassing

Cruzan mere disbelief of
evidence/witness testimony
is not affirmative evidence

4. Subjective rules are soft rules: P is bible salesman saying man owed him $500 for a bible.
P testifies. D rests. P moves for JMOL.
R = nothing; U = everything. When the movant has the burden, we are more lax about the subjective rules.
Reverse Cruzan no evidence for D affirmative evidence in support of P
If P is claiming sexual harrassment and its her 14th case, that becomes affirmative evidence for D even if D
rests/puts on none of his own evidence.

IV. Power to Adjudicate and Its Consequences

A. Personal (Territorial) Jurisdiction
1.US Adaptation of Basic International Law Concepts
For a court to have jurisdiction over you, it needs 2 kinds:
Subject Matter Jurisdiction - 12(b)(1) and 12(h) say it can never be lost; court should bring the issue up
even if it is not claimed
Constitution is the outer boundary.
Statutes = District Courts -> Congress can give less than Art. III
1331 FQ: on the face of a well-plead complaint; P must put in the complaint as Master of the complaint
1332 Diversity: complete and amount0in-controversy
1441 Removal: a function of the other SMJ bases FQ always; Diversity IFF not in Ds home state

1367 Supp. Jurisdiction: CNOF + Federal Jurisdiction over 1 claim; limitations on Diversity Cases

Personal Jurisdiction Can be lost under 12(h)

3 Parts of Personal Jurisdiction
Territorial Presence


At the time of service

Prior to litigation

1) in personum on/off: are you there or not

2) in rem:
3) quasi-in-rem

Procedural Due Process: allow

D to know why hes being sued,
which land
Prevent Fraud: P cant take land
w/out D knowing

State Statute
Up to the limit allowed in
the Constitution (due
Can choose less (some have
done for corporations)

Substantive Due Process

Determining who has personal jurisdiction may determine the outcome of a case. OH will rule for OH

Pennoyer v. Neff
Neff claims (1) OR had no personal jurisdiction over him while he was in CA and (2) he was never served
properly in the 1st case where default judgment was rendered against him.
#1 TERRITORIAL RULE: every state has jurisdiction over everything w/in its territory and nothing outside of
its territory
Territorial presence is an on/off switch
Whats in your territory?
o People (in personum)
o land (in rem)
o suits against land to get at the person (quasi-in-rem)
#2 NOTICE RULE: no limits on the person; go wherever the person goes. Limits on the property = wherever
the property is.
States were considered their own sovereigns; Territorial and Notice rules came from international law. BUT,
international law does not make separate sovereigns give full faith and credit to each others judgments.
Full Faith & Credit
1. States must give to each other Constitution Art IV I
2. Federal Courts must give to state court judgments - Statute 28 USC 1738
3. State Courts must give to federal courts Supremacy Clause
In rem and Q-in-rem did not receive FF&C in other states. The notice on the property was only w/in 1 state.
You cant sue on it again because it is property.
In Personum = can sue on again in another state.
#3 STATE STATUE: can authorize up to the limit of territorial notice (i.e.- in Pennoyer, would be w/in
cant do more, but you can authorize less (some states have for corporations)

Personal jurisdiction would have died w/out Pennoyer supplements:

1) Transitory Presence the suit takes place in a state different from the cause of action; if you commit a
crime in DC and flee to VA, you can be sued in VA
**must always have AT LEAST 1 FORUM TO BE SUED IN
2) Citizenship (of a state) if you live somewhere (no intent to leave), the state does not lose jurisdiction over
you when you go on vacation, etc.
3) Consent - when you go to another state, you consent (implicitly) to be bound by their laws; very limited and
topical. Not for general transitory presence for dangerous activities.
*TRUE? Because you can now lose the right to claim lack of Personal Jurisdiction under 12(h), none of these
cases would have made it to SCOTUS today. They were all collateral attacks on courts jurisdiction.
2. Territorial Presence of Corporations: International Shoe
If youre in a corporation, youre liable for only the assets youve put into a corporation, not all of your
States may require a corporation if it wants to do business in their state - to appoint an agent upon
whom process may be served
Corporate Presence
1. State of Incorporation legal presence
2. Where most activities are de facto presence
International Shoe Co. v. Washington 1945
Shoe was a Delaware corporation who sent agents to WA to sell shoes. Pursuant to a WA statute, WA served
Shoes agent and mailed notice to the corporate headquarters in DE. SCOTUS ruled the WA statute was ok.
1) Minimum contacts organic approach: traditional notions of fairplay and substantial justice
2) Minimum contacts structured approach:
a) systematic and continuous acts w/in the state
i) or a single act is enough if
ii) state has a manifest interest expressed in a statute
b) cause of action arises from acts in (a)
In Shoe, the court assumed the issue to be decided: says the agents are employees when in fact they are
independent contractors. The entire issue revolved around whether or not they were employees and whether or
not Shoe had to contribute to WA unemployment fund as an employer in the state of WA. The agents could be
seen as independent contractors.
Fair and just argument = if corporation benefits from being in the state, it should pay to unemployment fund.
*BUT, when the organic approach is involved: we dont know who the good guy/bad guy is. Fair play is
based on where the Corp. is located, etc. NOT who is in the wrong.
McGee v. Intnl Life Insurance 1 life insurance policy of CA citizen; TX corp. sued in CA court.
Structured approach becomes:
a) a single act is enough IF
b) state has a manifest interest expressed in a statute
Cause of action must still arise from the act
New problem: whats a manifest interest? Its the organic approach all over again.
Can only protect your own states citizens

Must have a general state statute AND a specific manifest interest statute
3. Evolution: The Height of the Structured Approach to Minimum Contacts
Hanson v. Deckla, 1958 Purposeful Availment
Bank in FL. Trust in DE. Both D and P are residents of FL.
Suit # 1) DFL sues TrustDE in FL court. FL court rules for D (wants to tax the $)
Suit # 2) PFL sues TrustDE in DE court. DE court rules for P (want to show its trusts are solid).
SCOTUS: Suit #1 FL had no personal jurisdiction over DE Trust because the trust did not personally avail
itself to litigation. All of the acts were unilateral by the dead woman she sought the trust out.
RULE: To satisfy minimum contacts, D must purposefully avail himself to litigation (seek the acts in the state).
Purposeful, in-state contacts
Worldwide Volkswagon v. Woodsen 1980
Car was bought in NY. Accident in OK. Does OK have jurisdiction over WWV who sells car parts in NY, NJ
and CT? No, it doesnt matter that the car is in the stream-of-commerce. D must have control over where can
be sued.
RULE: Did D seek any benefit from the forum state?
Theory of Minimum Contacts (and purposeful availment):
1. Protect D from inconvenient forum
2. Limit state reach dont go beyond your sovereign
Prevent OK from deciding if NY is guilty
Do what you want in your state, but youre limited to it prevent state wars
Like Erie states can do what they want: no 2 rules in daily life
*NOT to be the most convenient forum convenient for P? D? dont know who the guilty party is
*NOT D should be sued if they made a bad car part: we dont know if D made a bad part or not
4. Evolution of Personal Jurisdiction: Look at the Structured Approach 1st, but Organic Approach can overrule
Specific Jurisdiction = minimum contacts/extraterritorial -> long-arm statutes
General Jurisdiction = Corporation is incorporated there/PPB, at home (Milliken domicile)
MODERN APPROACH TO Minimum Contacts and Specific Jurisdiction
Burger King v. Rudzewicz 1985
Specific Jurisdiction/Minimum contacts exist if:
1st Step: STRUCTURED APPROACH (and new definition of purposeful availment)
1. Stream of commerce: 2 views this debate still exists:
a. You KNEW; your purpose was to sell to that states market (harder to get OConnor)
b. Awareness that it your product could get to that state (easier to get specific jurisdiction Brennan)
2. Selling/distributing/hurting someone -> voluntarily initiating contact w/forum state
3. Reaching out to forum state tv ads, etc.
2nd Step: If you go through the 1 st step and do not find minimum contacts, look to ORGANIC factors.
Center of Gravity Test: All players involved P, D, States interest (could be multiple states)
Supporters: No more on/off switch need variability to get right results in each situation
Criticisms: 1) Organic is a very indefinite approach equity maxim: justice varies w/length of foot
2) you dont know if the 1 st court had personal jurisdiction until you get to the 2 nd court
Asahi Metal Industry 1987 Debate to Minimum Contacts

The stream-of-commerce debate still rages on under the minimum contacts structured approach:
Yes, jurisdiction if you are selling a product which you know will move interstate. (Brennan)
No jurisdiction if you sought no benefit from the forum state. Yes, your products went there, but there
wasnt really personal availment. (OConnor)
Look to organic as a tie-breaker: reasonable or unreasonable to make D litigate in that forum?

Minumum Contact Spectrum

Extent of Contacts: No contacts

Continuous but
Substantial or
No jur.


No jur.


Specific Jur.
Specific jur.
General Jur.
(claims dont have to arise from the acts if they are general?)

Consists of 3

1. Territorial
due process)

On/Off switch.
Are you in the
state or not?
Citizen of the
State (not

2. Notice
due process)

3. State Statute

Showing desire to
go to extent of
Constitutional right
(Min. Contacts =

4 Supplements:

policy, etc.)

(1 forum at all

Contacts Test ->
Look to BOTH

**Minimum contacts is taking over the other supplements. It applies to both people and corporations (Kulko).
They are contacts when the acts occur (not when file claim).
R4(k)(1)(A) Federal courts have personal jurisdiction if state in which it sits has personal jurisdiction


2. Structured

(1) Systematic and

Continuous Acts
(Intnl Shoe)
(2) Claim arises
from those acts

(1) adds 1 act + a

manifest interest
(McGee v. Intn'l Life

NOW (1) is
availment - =Did D
seek a benefit from
the forum state?
(2) claim arose
from acts

1. Organic

traditional notions
of "fairplay" and
justice" (intnl Shoe)
- if corp. benefits
from being in a
state, they can be
sued there

Center of gravity
test (Burger

Fairn play and

justice rears
againa in Asahi

B. Former Adjudication (Res Judicata)

1. Claim Preclusion and Its Uses
Res judicata:
Within 1 jurisdiction, the rules which prevent litigation of a prior:
1) Valid
a. Territorial Jurisdiction
i. Notice
ii. Compliance w/state statute of substantive and procedural due process
b. SMJ Constitutional, but look to statute
c. Valid Correct
2) Final
a. In federal court, final is when they file the paper at the trial level
b. Race-to-judgment: 1st-in-time decided is the final
3) Personal (Jurisdiction)
a. In personum (in rem and quasi-in-rem dont get res judicata preclusion)
4) Judgment on the merits
a. Varies by state
b. Federal level = R41: Dismissal of Actions
1. (b) Involtuary dismissal: A motion to dismiss is a judgment on the merits
EXCEPT 12(b) 1,2,3,7 = SMJ, Personal J, Improper venue, Failure to Join Party
2. (a) Voluntary dismissal = NOT a judgment on the merits (unless youve brought
and dismissed the same claim before in state or fed. court)
5) a. of the same claim
a. Federal case law tells us the standard for a claim in federal court; frcp heavily influenced by
the FRCP (same T/O)
5b) or same issue
a. dimensions
b. Multiple Issues: different approaches to if there is issue preclusion
1. All issues get preclusive effect BUT judges are people
2. Close look approach: how important/how much weight did the 1 st court give to the issue?
The problem is you end up retrying the 1 st case and have lost any efficiency you might have
c. Inconsistencies: Suit #1) P v. D, Suit #2) P v. D (in court if res judicata not raised as a defense)
Last-in-time rule: suit #2 gets preclusive effect; why? #2 should have raised res judicata;
punishment for wasting the courts time
6) Except couldnt have brought 5a or 5b; foreseeability: if 2 claims are so disproportionate you couldnt
have foreseem the effects of the first on the 2 nd (i.e. 1st suit for $100 and the 2nd is for $10,000)

Williamson v. Columbia Gas & Electric

2 claims brought in 1938 2nd suit bars the 1st. Ps lawyer thought he had 2 different causes of action (kind of
like 2 different writs) but then the FRCP were passed, forcing all claims to be brought at the same time.
What is SOL had been different for the 2 claims? Or if they were the same, but the 1 st suit was filed
before it elapsed?
R18 You may join as many claims as you want. BUTdont know the consequences of not joining
a claim
Res judicata is not in the FRCP. Its an 8(b) affirmative defense, and R41 says a dismissal is w/prejudice
if involuntary
CONSEQUENCES of your choices are found in CASE LAW
Statute of Limitations does not bar action in another state Erie (another 1938 case) problem: federal courts
apply statute of limitations as they want
Efficiency: Youre forced to bring all claims together because you might lose the right to bring it again if the
court thinks it was the same T/O [lose under compulsory CC R13(a)]
Indefiniteness means you want to be sure to join all claims
Court can always separate the claims if they want to (if judge decides it was not part of same T/O)

Res judicata does NOT bar a claim based on the same kind of actions, but the acts occurred after
original claim was filed. See OBrien v. City of Syracuse trespassing.
Only serious issues of public policy can override res judicata
o Harrington sexual harassment Ct. of Appeals says she should have tried to bring the claim
even though it was not available; try to overturn the case law -> R11 sign the pleadings if you
know theyre true, claims are warranted by existing law or should establish new law
o No retroactive claims are permitted if the law changes and you have a new action for damages;
courts would be unwilling to change the law and open up the possibility for new claims

*Injustice/public policy would rarely be enough to override a res judicata defense

Dont want to destroy the finality of judgments
Dont want people to claim they can override res judicata all the time
o Like Cruzan rule cant have all production burdens met by party denying
2. Issue Preclusion (Collateral Estoppel) and Its Uses
Little v. Blue Goose Motor Coach Illinois defines an issue as larger than a claim; anyone would know that all
the issues are related to the same claim. Need to think strategically: which case do you want to bring 1 st?
Federal approach: a claim is bigger than an issue.
Erie-Hanna problem: Do you use the state rules (IL does not allow contributory negligence as an affirmative
defence to willful and wanton negligence) or the federal rule (8(c) you MUST plead any affirmative defense,
including contributory negligence, or youll lose the right to bring it up later)?
*FRCP and the federal definition of a claim (bigger than an issue) mean that all claims are brought and all prior
suits are barred by res judicata (compulsory counterclaims if you dont bring them, you cant ever bring the
claim). BUT, issue preclusion looks to the pleadings if an issue wasnt brought (even if it could have been) it
is not barred by issue preclusion.
Issue Preclusion Generally
If an identical issue has been fully and fairly litigated, decided by a court, and courts decision was necessary to
outcome of first suit, then collateral estoppel can be asserted a/g any party (or non-party in privity to) the first action.


persons who are actually represented by a party to an action
successors in interest to a partys property involved in an action
nonparties who control the prosecution or defense of an action
Does not include issues that could have been litigated but were not.
o Attention to Pleadings
Pleading rules are important: in order to apply collateral estoppel, need to know what issues were raised in
the suit to know what cant be re-litigated; the pleading will tell us what issues were raised
RULE: in merger and bar. T/O defines previous claim raised; in collateral estoppel, pleadings define
previous issues raised
Does not include defenses that could have been brought but were not (Jacobson)
Definition of the issue: An issue is the factual relationship about the defendant or the plaintiffs conduct, and may be
bigger than a claim. But only preclusion of issues that have been raised (not may be raised.)
Only applies when the issue actually raised was necessary for the decision.
Voluntary dismissal is not a bar to future suit, unless notice of dismissal states otherwise.
When a judgment rests on multiple alternative grounds, any of which would be sufficient to sustain it, do
they all get issue preclusive effect? Either none do, all do, or Federal Rule: the careful look approach. (If
the court really paid attention to this, then it gets collateral estoppel effect.) Restatement view is that
neither should get collateral estoppel effect.
Where there are two cases, and one prior decision, the first in time gets claim and issue preclusive effect.
Where there are three cases and two prior decisions, the last in time gets preclusive effect. Explanation
punish the guy who required the case to be heard the second time. (In other words, the most recent
decision gets res judicata.)
Default judgments and settlements (usually) get same effect as regular judgments, giving the winner
chance to take collateral estoppel of all the issues he won on in future litigation.
Foreseeability doctrine value of the issue must be foreseeable in subsequent litigation for issue
preclusion to take effect. Otherwise defeat in one suit might result in outcomes never imagined during the
first litigation
Suit #1 BG v. Little
Suit #2 Little v. BG
How does BG use issue preclusion to win?
Count #1 negligence
Count #2 willful and wanton negligence
For count one: Use Littles negligence as contributory negligence affirmative defense since it was proven in suit #1.
So you cant litigate on it.
For count two: Yes you can litigate it, no issue preclusion (because BG did not have to bring up its own negligence
in first suit under normal rules above case was before FRCP)
Same as above, except under Federal rules. Suit two should have been brought as compulsory counterclaim
[13(a)], so since it was not it is precluded. T/O test. This is actually claim preclusion.
Suit #1 Little v. BG for property damage
Suit #2 Little v. BG for personal injury
How does Little use issue preclusion to win?
Count #1 negligence
Count #2 willful and wanton negligence.
For count #1: BGs negligence must have been shown in Suit #1 and decided. But in Suit #1 it was only negligence
in regards to the property, not necessarily the injury. In this case, issue is bigger than the claim. Claims separate,
but issue of negligence is general. So you cant litigate on it.
For count #2: You can litigate (no issue preclusion) because you didnt prove willful and wanton negligence in the
first suit.
(Claim preclusion does not bar this because under Illinois rule these are two different claims. Claim-split: one if for
property damage and one if for personal injury)


Same as above, but in federal court. Federal rules dont allow claim splitting. When L brings second suit, BG can
bring claim preclusion as an affirmative defense.

Federal courts deal with issue preclusion by adopting a wide definition of what a claim is and then apply
claim preclusion broadly. But in Illinois, they have claim splitting and a large definition of issue preclusion
and burden of pleading, production and persuasion, resulting in the same level of res judicata as in Federal
courts. In fact, in Illinois there are more issues decided in cases and so system is more efficient because
more issues are precluded. But if defendant wins we dont get the Illinois effect.

Strengths and Weaknesses:

1. Federal Approach
Justice becomes more transparent
Not efficient information overload, jury confusion, lots of discovery
2. State Approach
Bad to not see all of the issues
Much simpler only a few issues to deal with
Smaller definition of a claim, wider definition of an issue
What is ideal? New pleading rules (see Iqbal and Twombly plausibility test) have easy requirements, meaning
more claims come to court (justice = federal).
If the requirements were harder, you would have to do more work/discovery beforehand to prevent
frivolous claims (efficiency = state)
Mechanics of Judgment
Settelement: the case must be eliminated in some way (its on the courts docket, and now we need to get rid of
1. Voluntary dismissal R41 no preclusive effect/without preudice D might settle so he can sue later
2. Judgment on the record for either P or D = issue preclusion
3. Settlement agreements say this shall have no preclusive effect in the future
3. Limits, Expansion Via Full Faith & Credit
Collateral Estoppel Rules:
1. Same issue in both suits
2. Issue must actually have been litigated and decided in suit #1 (not just raised
3ish. Decision on the issue must have been necessary to the previous judgment
Remember: Party Res judicata is asserted against must have been party in previous action. A previous winner
can never assert res judicata against a new party. You cant try to use your previous winnings against a party
who wasnt involved before -> due process violation.
Suit #1: P v. D
Suit #2: P v. New D
Due process violation. P trying to assert res judicata when new D hasnt had his day in court. (P won
and is trying to use his winnings against a new party).
Mutuality of Estoppel = old rule that in order to claim res judicata, you had to have been a party/privy in the
prior suit. If you were not bound by a prior judgment, you should not be able to benefit from it.

Suit #1: P v. D
Suit #2: New P v. P
New P could not claim collateral estoppel because new P was not a privy in the previous suit.

Collateral Estoppel = 1 issue previously decided

New rule post-Berhard:
A party asserting res judicata need not have been a party, or in privity with a party, to the earlier
action. (Mutuality is not required.) Test:
o Was the issue decided in the first case the same issue?
o Was there a valid, final judgment on the merits?
o Was the party against whom res judicata is used a party or imprivity to the original suit?
Non-Mutual Collateral Estoppel Hypos: Assuming state court & both suits in same jurisdiction; P usually has
the production and persuasion burdens.
Bold = winner, Underlined = asserting res judicata;


Suit #1: P v. D
Suit #2: P v New D
(Bernhard v. BofA)
Suit #1: P v. D
Suit #2: D v. ND
Suit #1: P v. D
Suit #2: NP v. P
Suit #1: P v. D
Suit #2: NP v. D
Suit #1: P v. D
Suit #2: D v. ND
Suit #1: P v. D
Suit #2: NP v. D
Suit #1: P v. D
Suit #2: P v. ND
Suit #1: P v. D
Suit #2: NP v. P

Yes, ok. P has choice of forum in #1.

But, P might have lost in #1 because she had the burden of production and the
evidence was in equipoise (Reid)
D had persuasion/production burden advantage in suit #1.
But, D had no choice of forum in #1.
P had choice of forum.
Burden disadvantage, and now she has been brought in as a defendant.
No forum choice, burden advantage, but now youre a D again.
1-2 are defensive/shield uses of res judicata accepted by most courts. The new
party is asserting res judicata as a defendant brought in against his will.
3-4 are offensive/sword uses of res judicata which are harder to defend; the
new party is suing an old, losing party and using her losses against her.
5 8 all present due process issues. The winner of a previous suit is trying to use
his winnings against a party who was never a party in the original suit, who
never had his day in court.

If you choose to sue someone, collateral estoppel can justifiably be asserted against you (new party D uses as a
shield). If you are a defendant being sued, it is less fair to allow the party suing you to claim issue preclusion on
an issue they know you lost before (new party P trying to use as a sword). But states vary on what to allow.
Mulitiple Plaintiff Anomaly: Courts will consider if it is fair to use non-mutual estoppel in this case. (All
200 passengers are killed when a plane owned by D crashes. If each plaintiff sues, D might win the first 20
suits (litigating every time because, as the winner, he cannot invoke collateral estoppel see #6 above).
Then, if he loses the 21st suit and we allow offensive non-mutual collateral estoppel, he can be estopped
from denying liability in the rest of the cases (see #4).
Full Faith & Credit
Within the same judicial system you have 1 set of res judicata rules
State A = own res jud rules w/own definition of a claim
State B = different
Federal system = federal courts have their own rules
We have as many as 51 res judicata regimes; as many as there are judicial systems

States give each others judgment FF&C because of the Constitution


Federal courts give state judgments FF&C under a statute

State courts give federal judgments FF&C under the Supremacy Clause

Methods of Attack on a Prior Judgment

1. Direct Appeal = trial court says they have personal jurisdiction, you dont think so -> appeal
International Shoe, McGee Life Insurance
2. Motion for Relief from Judgment = FRCP; ask the trial court to reconsider
3. Collateral Attack P won and wants to enforce the decision in another state -> bring suit to claim no
jurisdiction in #1
Suit # 2 (1-2 methods are suit #1) claim the judgment wasnt valid
Usually from default judgments
-> you can only do 1 method. If you try #1 and fail, #3 is precluded by issue preclusion.
C. Hard and Soft Law as Social Policy Choices
1. The Uses of Law and Process: Chinese Law and More
Same T/O = Assert all claims! Amend! Supp. CNOF test
Erie-like problems Res Jud, Personal Jurisdiction
I. Phases of a Lawsuit
1. Pleadings: Complaints, answer, alternatives to answer
2. Discovery: uses, scope, termination under SJ
3. Provisional Remedies: R64 conforms to states; Equity = Fed. Ct. made own rules
4. Trial: JMOL and other motions whats for the jury and whats for the judge?
5. Judgment types and Appeals (When?)
II. Can you get to federal court?
1. SMJ Constitutional to SCOTUS
2. District Courts FQ, Diversity complete + a-in-c, Removal
3. Venue + Service of Process
4. Complicated SMJ Problems
a. Erie and reverse-Erie: state law claims in federal court and federal law claims in state court
b. Multiparty and multiple claims
III. When do you look at FRCP? Case law? Wheres the standard?


Patterns in FRCP:
1) Standard is in the rule itself (*)
2) Standard in the state rule ()
3) its omitted -> look to case law ()
1- Purpose: Just, Efficient, Cheap in Fed. Ct.
3 Commencing an Action
5 - Service
7 Pleadings allowed
8 Rules of Pleading
a. Claim
b. Defenses, Admissions, Denials
c. Affirmative defenses
11 Signing pleadings, motions, and papers;
sanctions dont purposefully impede R1
12 Defenses and waiving defenses, M to Strike
13 Counterclaims and Crossclaims
a. Mandatory
b. Permissive
30 Deposition
31 Deposition by Written Questions
32 Using Deposition at Trial
33 - Interrogatories
34 Request Documents
35 Mental or Physical Exam
36 Request for Admission
37 Motion to compel discovery; disc. Sanctions
45 Subpoena ducus tecum = docs
26 Disclosure and Scope of Discovery
(b)(3) Work Product
Pretrial Termination
12 b. M to Dismiss (can waive if not done in 1 st
56 Summary Judgment; Partial can be liability on
all but the damages *
Provisional Remedies
64 Person or Property
65 b. TRO
a. Preliminary Injunction
Trial Motions
50 - a. Judgment as a Matter of Law (JMOL) *
b. Renewing JMOL (must have done before; J
notwithstanding the verdict)

52(c) JMOL in non-jury trial (judgment on the

partial findings)
59 Motion for a New Trial
58 entering
69 Enforcement ($ + discovery = )
54 Judgment + Costs = you get what you deserve,
except in default (get what you asked for)
57 Declaratory J
60 motion for relief from judgment
1291 Final decisions can be appealed
1292 Interlocutory Appeals
1254 Cert. from Ct. App. to SCOTUS
1257 Highest state ct. to SCOTUS
54(b) Judgment on multiple claims judge can
separate out 1 claim expressly
Subject Matter Jurisdiction of District Courts
1331 Federal Question
1332 Diversity of Citizenship
1441 Removal
1391 Venue
4 Summons/Due Process
e. serving w/in US district
k. territorial limits
Erie Laws
2072 REA: no affecting substantive rights
1652 RDA: state laws act as rules of decisions
unless federal law applies
Law and Equity
2 one form of action, the civil action.
38 right to jury on any issue triable by jury
53 Masters = provides more remedies at law; but,
R2 abolishes distinction between L + E -> are these
remedies at law?
42(b) separate trials judges can choose to hear
sep. or together
41(a)(1) have until D files an answer to drop the
claim w/out prejudice (right to refile still intact);
cant do it twice (in state or fed. ct)


Same Transaction/Occurrence
R13 Compulsory Counterclaims
R15 Amendments
1367 Supplementary Jurisdiction (CNOF)
Summary Judgment Standard
R12(d) motion for 12(b)(6) failure to state a claim and 12(c) motion for judgment on the pleadings
56(e)(2) cant rely on allegation or denials in the pleadings; must set out specific facts to contest a sj move

State Law Standard

64 seizing person or property as provisional remedy
69- executing judgment
Conformity Act
Case Law Standards
65 preliminary injunctions
On/Off Switches
Subject-Matter Jurisdication (& statute) - FQ statute arising under uses same language -> but Mottleys
interpret statute narrower