Professional Documents
Culture Documents
Civ Pro Yeazell Fall 2012
Civ Pro Yeazell Fall 2012
FR 12(b)(1), 12(b)(6)
FR 11
FR 8(a)
FR 50
FR 15
FR 20
FR 26, 26(c), 26(b)(1)
FR 45(a)(1)
FR 56
USC 1332(a), 1332(b) Fed. Ct. original juris.
USC 1291
Hawkins v. Masters Farms, Inc. D. Kan. 2003.
P Hawkins rep. estate of Creal files suit in federal court alleging diversity jurisdiction.
Creal killed in Kansas by KS driver; live there with wife for 1 year; moved possessions there.
Creal visited mother in Missouri 1 x week; car title and license there; mail and pay stubs; address on ins.
Domicile established by physical presence and state of mind intending to remain there.
Creals connections to Kansas overrode connections to Missouri. Motion to dismiss granted for D.
Jurisdiction can decide case before it ever goes to trial.
Subj. matter juris. for Fed. Courts when diversity of parties. Article III of Constitution.
Why lawyer brought suit in Fed. Ct.: Creal was out-of-towner. Wanted bigger jury pool than small town.
Erie R.R. v. Tompkins: When Fed. Ct. hears a case, must apply same law the state court would.
Theme: Division of power between state and federal government: political bargain of 1789.
Bridges v. Diesel Service, Inc. E.D. Pa. 1994.
Bridges brought suit against employer for discriminating against him for disability in violation of ADA.
Trial Ct dismissed complaint bc plaintiff failed to exhaust admin. remediesshould have filed complaint with
Eq.Employ.Op.Commission (EEOC).
D moved for sanctions against P Rule 11: reasonable factual investigation before filing suit. (Motion denied.)
Counsels signature certifies pleading is supported by R.F.I. and competent level of legal research.
Holding: Rule 11 sanctions not necessary bc designed to punish improper conductnot fee-shifting device.
Theme: Procedural errors can kill your caseyou certify having evidentiary support when you sign complaint.
Bell v. Novick Transfer Co. D. Md.1955.
Infant P Bell was in auto collision; filed suit against driver and company owning tractor-trailer.
D moved to dismiss for failure to state a claim; no specific allegations of negligence.
Holding: Claim meets requirements of Rule 8: short and plain statement. Motion denied.
Theme: If we make it easy to let weak cases get by thru easy pleading, waste time and money. If we make it
hard and require detailed pleading, some good cases will die before discovery, denying worthy plaintiffs.
Theme: Does notice pleading conflict with Rule 11? Before you sign complaint, need evidentiary basis.
Pleading has gotten harder after Iqbal.
Larson v. American Family Mutual Ins. Co. D. Colo. 2007.
Ins. Co. did not pay house-fire claim; P retained Ross-Shannon as attorney.
He moved slowly on case bc in negotiations to represent ins. co.; P got new counsel, filed suit against ins. co.
P amended complaint to join Ross-Shannon in suit on claims of malpractice, br. of fiduciary duty, conspiracy.
D objected that civ. conspiracy claim unsupported, so no joinder bc remaining claims did not arise out of same
transactions or occurrences (Rule 20(a) also requires common q. of law or fact for all D).
Holding: conspiracy claim is supported, joinder permitted bc claims arose from same trans./occ.
Larson lawyer strategy: keep case in state court by joining Ross-Shannon, destroying diversity.
Removed from State to Federal court Remanded from Federal to State court.
Outcome turns on interpretation of Rule 20 idea of what counts as common issue of law or fact.
Complaint
- Must state claim upon which relief can be granted: 12(b)(6) Motion (Demurrer)
- Rule 8(a)(2): short and plain statement of the claim showing pleader entitled to relief.
Discovery
- 3 restrictions under Rule 26(b)(2) and (c): relevant, not privileged, not more undue burden or expense than benefit
- Disclosures: Rule 26(a)(1). Interrogatories: Rule 33. Producing records: Rules 34, 45. Phys./Ment. Exam: Rule 35
Appeals
- Depend on: error in trial court plus error resulted in erroneous outcome.
- CAN appeal Rule 12(b)(1) motion to dismiss on grounds of jurisdiction.
- CANNOT appeal Rule 26(c) motion for protective order blocking requested discovery.
- Cant appeal interlocutory judgment final judgment rule but Fed. Courts have statutory exception to rule.
Summary Judgment After discovery is complete: no genuine dispute as to any material fact. Rule 56.
Default judgment D fails to answer complaint/defend. Rule 55.
Dismissal P fails to comply with orders of court. Rule 41(b).
Voluntary Dismissal P seeks if he thinks hed be better off starting over. Rule 41(a).
Directed Verdict Judge can refuse to submit case to jury. Rule 50(a).
Judgment as a Matter of Law Reverse jury decision. Rule 50(a). Also; J. N. O. V. or J. notwithstanding V.
Trial Fewer than 5% of Fed. Ct. cases go to trial.
History of Procedure
1. 1100-1800: Early Common Law: all procedure based on case-by-case rulings
2. 1789-1850: Early US Law: Occasional statutes supplemented by inherited English Common Law procedure
3. 1850-1938: State legislatures began regulating procedure by statutes.
4. 1938: Federal Rules plus statutes; some procedure still regulated by common law (eg. principles of former adjud.)
Litigation statistics
- 41,000 Federal civil cases/year
- Median time to trial for all cases: 18 months+
- 95-98% of US litigation in State Court; 106 million cases in 2008.
- 54% of those are traffic cases
- 48 million non-traffic cases
- Remaining 46% (almost equal criminal and civil dockets)
o Criminal 44%
o Civil 40%
o Domestic 12%
o Juvenile 4%
- 19 mil civil lawsuits/year up 67% over last 20 years (also up: GDP and pop.closer correlation w/ econ. activity)
o Small claims 19%
o Probate 15%
o Mental health 2%
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o Civil appeals 1.1%
o Real property 1.1%
o Other 4.1%
o Torts 4.4%
Disproportionately represented among cases going to trial bc material facts usually in dispute
90% before jury
27 mo. average time to trial 4 days average length of trial
Plaintiffs win 50%
Median recovery $21,000 bench; $24,000 jury
5.7% end in $1 million+ recovery
o Contracts 54%
65% Debt collection
Mostly bench trials
21 mo. average time to trial 2 days average length of trial
Median recovery $25,000 bench; $75,000 jury
8.3% end in $1 million+ recovery
- 3% of cases go to trial most end in settlement or abandonment
- Jury trial: 70% - Judge trial: 30%
- Jury awards have declined by 40% since 1992
- Long tails of damage awards: high damage awards are outliers but get a lot of attention.
- Theme: Speed vs. Quality, Fairness vs. Justice
- Of 250,000 cases each year, only 85 decisions granted certiorari by Supreme Court
Remedies
1. Substitutionary: provide plaintiff with reasonable substitute
a. Most common: money damages
b. Noneconomic damages barred entirely for certain categories of cases (i.e. emotional distress in CA)
2. Specific: restore directly and specifically what has been taken from the plaintiff
a. Courts can order parties to do something or refrain from something; recapture personal or real property.
b. Agreement beforehand: liquidated damages clause of contracts
c. Reasonable in light of anticipated/actual harm; unreasonably large = void as penalty. UCC 2-718(1).
d. Punitive damages for wrongful behavior
a. Only 5% of plaintiffs win
b. Median award $64,000
c. Constitutionality questioned by SCOTUS
1. Browning-Ferris Indus. V. Kelco Disposal: 8th amendment does not limit punitive
damages, but Due Process clause/14th amendment does for civil damages.
2. Honda Motor Co. v. Oberg: Appellate review of punitive damages.
3. Cooper Industries, Inc. v. Leatherman Tool Group, Inc.: Appellate review of punitive
damages must be de novo.
4. BMW of North America, Inc. v. Gore: Guidelines for punitive damages: relate to the harm.
a. Lays out 3 part test for de novo appellate review.
i. Reprehensibility of defendant. How reprehensible is the conduct?
ii. Disparity b/w Ps harm and damages award. Focus of evidence
harm to P in this state, not elsewhere?
iii. Difference b/w award and comparable civil penalties.
Disproportionate? 9x is guideline after State Farm.
3. Two kinds of remedies
a. Equitable remedies Courts of Chancery/Equity
a. Rescission/cancellation of contract.
b. Constructive trust.
c. Injunctions.
d. To get one: must prove harm is irreparable so money damages are not adequate.
b. Legal remedies Common Law Courts
a. Action in replevin: recover personal property
b. Action in ejectment: recover land wrongfully in possession of another
c. Writ of mandamus: court orders lower court/public official to perform act required by law
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d. Habeas corpus: civil writ used more in criminal casesjustification for holding someone prisoner
4. FR 1 merges equity and common law courts in federal system.
5. Declaratory relief sought mostly in patent/insurance litigation.
Punitive damages 3 requirements for Due Process. Phillip Morris USA v. Williams (2007)
1. Procedural: comp. damages make P whole; pun. damages = deterrence/retribution.
a. De novo appellate review.
b. Tailored written jury instructions.
2. Substantive: cannot consider harm beyond Ps own circumstances. Look to Gore 3-part test.
3. Evidentiary-jurisdictional: relevant civil sanctions
Financing Litigation
- American rule: each party pays its own fees.
- English rule: losing party (defendant) pays both its own fees and those of other side.
- Types of financing
o Insurance
Pay for lawyer and damages up to policy limits
Other policyholders share costs with you
o Contingent fee
Parties share costs with other similarly situated persons.
Most tort litigation
Campbell v. State Farm
o Alternative litigation finance
Consumer lending
Lawyer lending
Direct investment in commercial claims
Making money by investing in large commercial disputes, not injured parties/individuals
Example: Burford
Third party assesse case, invests, takes part of recovery
Is it legal? Champerty (dividing proceedings of lawsuit) a crime at common law; maybe
violates attorney-client privilege.
o Public subsidies and professional charity
Legal Aid
Criminal system:
Plaintiffs: prosecutors mostly self-financed
Defendants: 80% public defenders since Gideon v. Wainwright
Private defense bar is exception
Civil system:
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Plaintiffs: Contingent fees for personal injury cases, the restprivate funds: hourly, fee-
shifting, affinity groups, pro bono (institutionalized, often thru brokersPublic Counsel
in LA)
Defendants: insurance
Public subsidy is exception
o Fee shifting
The common fund
Affinity groups
o Members contribute dues
o Groups finance litigation to further their goals; organized around a cause
o NAACP Legal Defense Fund, Natural Resources Defense Council
By contract: provision will assert English ruleloser in dispute pays other sides attorney fees.
By common law
By statute
Civil rights laws: 42 USC 1988 says courts may at their discretion shift attorney fees of
prevailing party.
Prevailing party interpreted as only plaintiff; at their discretion interpreted as always.
- Parties paying their own lawyer?
o Auto accident litigation: No.
o Contract dispute between two small businesses: Yes.
o Discrimination suit under civil rights statute: No.
o Class action lawsuit: No.
Injunctive Relief
- Ex Parte Temporary Restraining Order (TRO)
o No notice/hearing, short duration; ex: domestic violence; parent may flee (custody); money may transfer.
- TRO: Notice, brief hearing, short duration (10 days with possible extension)
- Preliminary injunction: Notice, hearing, duration until trial on final injunctive relief, a form of interlocutory review
under USC 1291.
- Final injunction: Full trial, indefinite duration, review under 1291/1292 if final judgment/if other matters TBD
Chapter 6: Pleading
FR 7
FR 8, 8(b), 8(c)
FR 9
FR 13
FR 11
FR 55
FR 12(e), 12(f)
FR 15
Haddle v. Garrison S.D. Ga. 1996.
At-will employee Haddle was fired allegedly to deter his participation as witness in federal criminal trial on
fraud charges pending against supervisor Garrison.
Sued for discrim. under 1871 Civ. Rights stat. USC 1985(2) even though K allowed termination for any reason
D made 12(b)(6) motion for failure to state claim; granted bc statute doesnt apply to at-will employees.
Haddle v. Garrison 11th Cir. 1997.
Haddle appealed District Cts dismissal; his arguments foreclosed by Morast v. Lance; judgment affirmed.
Fed. Ct disposes of 250K civil cases/year; Fed. Ct of App. disposes of 55K.
Haddle v. Garrison US 1998.
Haddle appealed again; Supreme Ct reversed judgment11th Cir. wrong was to conclude petitioner must
suffer injury to constitutionally protected property interest to state claim for damages under USC 1985(2).
No such requirement; loss of at-will employment is injury; USC 1985(2) gives at-will E right to claim damages.
Takeaway: 12(b)(6) motion can define boundaries of substantive law.
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Why does Court cite to very old legal authorities? Bc the statute is from 1871 and they are using kinds of
authorities Congress would have in mind when passing the legislation.
Haddles lawyer knew relevant Cir. Ct. had ruled against position he was taking, but not worried about Rule
11(b)(2) sanctions because other Circuits had contrary rulings: non-frivolous suit when good faith argument
for reversing existing law.
Aftermath: 12(b)(6) motion would have stopped the lawsuiteven if you can prove everything youve said, the
law wont give you remedy (what Garrison learned).
Haddle has only won right to continue trialwill go to expensive discovery stagea qualified victory.
How will he pay for it? Probably not Legal Aidnot indigent; maybe has to take out loan to pay Ct Reporter.
Haddle is an unusual case: dispute about what the law is, not what happened. Blackstones aphorism:
Experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one
where the law is doubted of.
Ashcroft v. Iqbal US 2009.
Iqbal was citizen of Pakistanarrested Nov. 2001 on charges of fraud, conspiracy; moved from detention
center to Admin. Max. Spec. Housing as person of high interest post-9/11; kept on lockdown 23 hr/day.
Pleaded guilty to crim. charges, deportedlater filed Bivens action in US Dist. Ct. against 34 federal officials.
Complaint alleged violation of 4th/5th amendments because subject to harsh conditions of confinement on
account of race, religion, and national origin.
D motioned to dismiss on affirmative defense of qualified immunity; denied by Dist. Ct. & Ct. of App. affirmed.
Rule 8(a) short & plain statement of facts is all required, but need more than naked/unadorned assertions.
Bell Atlantic Corp. v. Twombly: precedent of flexible plausibility standard for complaintobliges pleader to
amplify with factual allegations when needed to render the claim plausible.
Need facts to nudge complaint from conceivable to plausiblemore than just mere possibility of misconduct.
o Legal conclusions supported by factual allegations
o Factual allegations plausibly give rise to entitlement to relief
Holding: allegation that Ashcroft, Mueller instrumental to harsh confinement = too conclusory; formulaic
recitation of elements of constitutional discrimination claim.
Holding: other explanations besides discrimination for detaining thousands of Arab Muslim men in 9/11
investigation: comes as no surprise that legitimate policy produced disparate impact on Arab Muslims.
Respondents arguments not persuasive:
o Twombly limited to antitrust disputes Twombly applies to all civil actions.
o Discovery improperly cabined to preserve defense of qualified immunity Legitimate action; litigation
is substantial diversion for public officials.
o General discriminatory intent F Rules dont require Courts to credit conclusory statements w/o facts
Dissent (Souter, Stevens, Ginsburg): Complaint satisfies Rule 8(a)(2). Ashcroft and Mueller knew
of/condoned/affirmatively acted to create discriminatory detention policy. Twombly says Court must take
allegations as true no matter how skeptical they may be.
Dissent (Breyer): Important to prevent unwarranted litigation from interfering in govt, but not sufficient
justification here. Courts have ways to structure discovery to diminish unwarranted burden on public officials.
Aftermath: Appendix of Forms use conclusory language; they are rendered invalid by ruling.
Double gauntlet of non-conclusory and plausible: cases will die at pleading if only 1 side has info that creates
or avoids liability.
Stradford v. Zurich Insurance Co. S.D.N.Y. 2002.
Stradford stopped paying insurance premiums on his office and Ins. Co. cancelled policy 10 Oct-18 Dec 1999.
6 Dec 1999: Stradford submitted letter that he had no losses and started paying premiums again.
14 Dec 1999: Ins. Co. reinstated policy.
9 Jan 2000: Stradford notified of reinstated policy; 10 days later filed claim for property damage of $151,000+
Ins. Co. paid out; Stradford submitted revised claim for $1 mil+ and Ins. Co.s investigation determined
damage occurred in lapsed insurance periodStradford sued to collect and Ins. counterclaimed: alleged Ps
schemeto defraud defendants and obtain money by false pretenses and representations. (Fraud)
Stradford filed Rule 9(b) motion to dismiss counterclaim for failure to state claims with sufficient particularity.
Holding: Ins. Co. said Stradford lied, but failed to identify the lie and allow fair notice to one accused of fraud.
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Ps motion correct but Ct. granted D leave to amend pleading to conform to Rule 9(b)then granted Motion
for summary judgment under Rule 56(b): P breached contractual obligation by failing to cooperate in
investigation of claim; breach precludes P from recovery.
Specifically whats missing from original counterclaim: Were Stradfords losses improperly inflated? Did
Stradfords office actually flood? If it did flood, was it covered by a term in the policy?
Jones v. Bock US 2007.
Inmate Jones alleged MI prison refused to reassign him work he could do after an injury, exacerbating injury.
Basis of claim was USC 1983 civil rights statute that does not require exhausting administrative remedies.
Holding: Most prison lawsuits frivolous but this one can proceed to trialno way for Jones to document his
injury, so no way to exhaust remedies before filing suit.
Does it matter whether administrative exhaustion comes up in complaint or answer? Burden of proof falls on
one alleging it. If you fail to prove, other side wins on 12(b)(6) motion.
Who has burden of pleading some element? Thousand years of common law tells us how to sort it out.
Statutes also set requirements:
o Implicitly Liable for breach of contract unless s/he is a minor at time of entering agreement.
o Explicitly It shall be a defense to claim for breach of contract that defendant was a minor.
o If silent puzzling out legislative intent from language, background, etc.
Bock (Warden) should have pleaded failure to exhaust administrative remedies as affirmative defense.
What should his lawyer do when case is remanded? Motion to amend answer to include it.
Walker v. Norwest Corp. 8th Cir. 1996.
Massey alleged breach of fiduciary duty in case of a minors trust fund.
Complaint unclear on basis for diversity jurisdictiononly some Ds were citizens of different states.
D informed Massey he lacked complete diversity jurisdiction but Massey did not amend complaint.
D filed 12(b)(1) motion to dismiss for lack of jurisdiction and moved for sanctionsDist. Ct. granted motions.
Ct rejects appellants argument that Ct. should have inquired into Masseys financial circumstances/hardship.
Could judge have awarded sanctions without monetary penalty? YesCLE and heartfelt apology in one case.
Christian v. Mattell, Inc. 9th Circ. 2003.
Christian alleged Mattel copied her Claudene doll bc it was similar to cheerleader Barbie dolls.
Mattel informed lawyer Hicks that suit was frivolous (copyright on Barbie head predated Christians doll)
Hicks declined to inspect dolls; served with motion for Rule 11 sanctions but did not withdraw complaint.
Dist. Ct. granted motion (based on Ds list of Hicks objectionable behavior) and 9 th Cir. overturned
Issue: can a laundry list of misconduct be used for Rule 11 sanctions?
No. Sanctions must be based on specific pre-discovery written, signed, and filed documents.
Reversed bc Circuit Ct. couldnt be sure what basis Dist. Ct. to award sanctions.
Zielinski v. Philadelphia Piers, Inc. E.D. Pa. 1956.
Zielinski sued Philadelphia Piers after companys employee collided with him in forklift crash.
They denied any negligence but admitted ownership and operations.
One year later D realized that Carload Contractors was actual employer/owner but stat. of limitations had run.
On this basis judge made original D stay as defendant in the lawsuit, even though they did not own forklift.
Holding: D should have filed more specific answer than their general denial under Rule 8(b).
Plausible argument: it was bad pleading in complaint as much as in answereach allegation should have
gone into a separate paragraph.
Affecting judges decision? Insurance Co. providing counsel for case is the same for Philadelphia and Carload
so in this way, they are the same D.
Beeck v. Aquaslide N Dive Corp. 8th Cir. 1977.
Beeck was injured on water slide thought to have been manufactured by Aquaslide; sued in diversity personal
injury action for negligence.
Three investigators (for Beeck, accident site Kimberly Village, and Aquaslide insurance companies) found it
was manufactured by Aquaslideso Aquaslide admitted to manufacturing in their answer to Ps complaint.
President of Aquaslide inspected slide on-site and realized not Aquaslide product; moved for leave to amend.
Holding: sloppy pleading by D (admitting to untrue allegation) meant tough luckwould have to stay in lawsuit
P argues that stat. of limitations will have run on claim so they cant sue the right D.
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Not all is lost for P: the new claim can relate back to original complaint if D knew or should have known it
was liable Rule 15(c)(1)(C).
Court held separate trial on issue of slides manufacture; Aquaslide found not liable.
Distinguish from Zielinski: the two Ds are not the same (like same insurance co. for Philadelphia & Carload)
Moore v. Baker 11th Cir. 1993.
Moore consulted Dr. Baker about blocked artery; he recommended surgery and warned of its risks.
She signed consent form and underwent surgery; bad result left her disabled.
She sued under GAs informed consent law that he failed to advise of alternative therapies.
Later moved to amend complaint to include allegations of negligence.
Holding: Cannot amend bc original complaint would not put Dr. Baker on notice that new claims of negligence
might be later assertedorig. complaint very specific to informed consent issue.
New claim does not relate back bc no same conduct, transaction, or occurrence.
After discovery, parties locked into the story theyre going to tell/the theory of the case.
Bonerb v. Richard J. Caron Foundation W.D.N.Y. 1994.
Bonerb slipped and fell playing basketball at rehab facility; sued for negligent maintenance of basketball court.
He moved for new counsel (granted), then moved to amend complaint for counseling malpractice.
Holding: amendment changing legal theory of the case appropriate if 1) same factual situation, and 2) claim
was brought to Ds attention in the original complaint. Test for relating back: same nucleus of operative facts
In this case: no undue delay or bad faithDistinguish from Moore: here, discovery period has not yet expired.
Pleading reform
- Three Overlapping Eras of Common Law
o The Writs 1200-1850
o Code pleading 1850-1938
o Modern process 1938-
- David Dudley Field wrote procedural reforms: pleading went from legal formulas to facts starting cause of action.
- Charles E. Clark dreamed up Federal Rules.
- All procedure was pleading at one time/no discovery or laws of evidence until 19 th/20th centuries
- 19th Cen: Pleaders have to state facts and use short and plain statements (FR 8)very brief Forms 10 and 11.
- Theme: Conflict between stringent pleading requirements to screen out cases weak on law or facts vs. eliminating
technical barriers to cases that will be meritorious if they can get to discovery.
- 14th Amendment Due Process underlies:
o Forbidding excessive punitive damage awards.
Always subject to review; occur in less than 10% of cases.
Cannot be awarded for Ds behavior toward persons not yet parties. Campbell, Williams.
Although these can factor into reprehensibility of conduct consideration.
o Allowing car towing/repossession without hearing.
o Allowing court to refuse preliminary injunction on public interest grounds (Winters v. NRDC).
Timeline of Pleading
- First: Bell v. Novick Transfer
o Short, plain, conclusory statement.
o Good for P: Either we know D did something bad and we can prove it, or we are pretty sure D did
something bad and well be able to prove it after discovery.
o Bad for D: Any factual basis to the complaint? If not I have to endure 8 months of expensive discovery
before I can convince court of that on a motion for summary judgment.
- Next: Bell Atlantic Corp. v. Twombly
o Rule 8 no longer a loose screenmore stringent requirements for facts in the complaint.
o Extraordinary 20,000+ citations in first 23 months.
o Narrow reading of result: standards for pleading antitrust conspiracy thru allegations of parallel conduct
only would affect cases where massive discovery was likely.
o Broad reading of result: Changes meaning of Rule 8 for all cases.
- Then: Ashcroft v. Iqbal
o Still massive discovery, but no antitrust: takes away narrow reading of Twombly; definitive ruling on FR 8.
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o What it means
For judge: disregard conclusory allegations; assess plausibility of remaining allegations in light
of judicial experience and common sense.
For legal system: system premised on low pleading barrierseasy access to discovery now
destabilized.
Rule 9
- Suppose Haddle told his lawyer that boss Garrison lied to him when hiring himassured him no fraud in company
- Does that change theory of the case? Becomes fraud casemore onerous pleading rules under Rule 9.
- What remedy? Outright lie gets punitive damages; automatic trigger of Courts Due Process review of damages.
- Complaint must be specific (exact circumstances showing fraud or mistake): screen of Rule 9(b). What was lie?
- Whats policy for making it harder to bring claims for fraud?
o Discovery required to investigate them is very expensive
o Dont want to make it easy to bring claims that undermine contractsprotect regime of contract as way
of ordering economic life.
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- What other claims have higher pleading requirements?
o Securities fraud (Private Securities Litigation Reform Act of 1995)
o Punitive damages in CA medical malpractice cases
Responding to complaint
- Rule 12(a)(1): 21 days to respond to complaint; extended to 60 days if D waives service of process.
o 90 days outside US; 60 days if US official/agency.
- No response: default judgment under Rule 55.
o Many civil claims are debt collectionif not paid, judge can enter default judgment against D.
o In common law tradition, default judgment only on cases related to land; now, applies to all cases.
- Pre-Answer Motion
o Do NOT have to admit or deny substantive allegations of complaint or any counterclaims.
o They delay time before answer has to be submitted and save time/money!
o Rule 12(b) motions = affirmative defenses/reasons to dismiss Ps casecan all be combined in 1 motion
o Rule 12(e) Motion for a More Definite Statementrarely and almost never successfully invoked.
o Rule 12(f) Motion to Strikedirected to individual allegations, not whole complaint; used to remove
irrelevant prejudicial allegations in pleadingno relation to case, confusing, overly long, derogatory, etc.
o Trap: if you file pre-answer motion and do not include all motions/defenses, they are waived.
o Three un-waivable super defenses:
Lack of subject matter jurisdiction
Failure to state a claim upon which relief can be granted (12(b)(6))
Failure to join a party as required by Rule 19(b)
- Answer
o Chance for D to tell their own side of the story
If worried about public opinion, maybe you want to show case won on merits instead of on a
technicality (pre-answer motion).
o Denial
Rule 8(b) requires D deny only allegations s/he actually disputes.
Rule 8(b)(6): anything not denied is admitted.
General denial denies every allegation.
o Affirmative Defense
Rule 8(c)(1) lists common affirmative defenses.
o Counterclaim
Requires reply from P; lawyers usually reply to all new matters raised in answer to avoid possible
inadvertent admission.
- Motion for Judgment on the Pleadings
o Court can match up allegations of the complaint and allegations of the answer and decide whether
judgment should be entered on basis of pleadingsex: statute of limitations has run; similar to early
motion for summary judgment.
Rule 15
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- Allows amendments/revisions, but limits extent/timing of such changes.
- Interpreted by Courts to mean they should freely give leave to amend if 1) good reason and 2) prejudice if not.
- Fights happen over amendments when a) time has passed, b) something has changed.
- Why have Statute of Limitations? Pragmaticstale evidence issue (unfair when all witnesses are dead/senile).
- The relate-back problem
o Occurs when party wants to amend complaint to add/change your claimand statute of limitations has
run on that claim
o If the new claim arises from same transaction or occurrence, it is fair to amend claim as if it were there
from the beginning (hence statute of limitations has not run).
o Theme: Respect values behind statute of limitations vs. allow leeway when those values would be
threatened by amendment.
Pre-answer Exercises
- As complaint fails to allege Bs negligence caused injuries. What motion by B? 12(b)(6) failure to state a claim
- A brings suit in IL but B is citizen in another state. What motion by B? 12(b)(2) lack of personal jurisdiction
- Can B combine both motions? Yes 12(g)(1)
- If B makes 12(b)(6) motion and it is denied, can she raise 12(b)(2) subsequently? Yes B cannot raise it in a
second pre-answer motion, but s/he can raise it in answer, in motion for judgment, or at trial super
defenses under 12(h)(2)
- What if no motion, but Court realizes it lacks jurisdiction? Court must dismiss the case 12(h)(3)
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Chapter 7: Discovery
FR 16(e) Final pretrial disclosures happen at judges final pretrial conference, which sets ensuing order.
FR 26(a)(1)(A) A party must, without awaiting discovery request, provide information to adversary.
FR 26(a)(2) Experts specially hired for litigation require a written report and a list of information about the expert.
FR 26(a)(3) List of witnesses and other evidence each side proposes to introduce at trial must be disclosed.
FR 26(b)(1) Permits discovery into any nonprivileged matter that is relevant to any partys claim or defense.
FR 26(b)(2) Court can limit discovery if discovery is unreasonably cumulative or duplicative, obtainable from another
source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery
outweighs its likely benefit.
FR 26(b)(2)(c) Brief summary of conclusions needs to be written for experts, but its not clear who has to write those
summaries.
FR 26(b)(3)
FR 26(b)(4)(k)
FR 26(c)
FR 26(f)(1), (2) Parties must confer and develop a proposed discovery plan, then submit a written report to the court
within 14 days of the scheduling conference.
FR 26(g) Similar to Rule 11; all disclosures must be signed, certified to the best of L knowledge after reasonable inquiry.
Important things not in Rule 11: discovery material must not be interposed for improper purpose such as harass, delay, or
increase costs.
Rule 30(a)(2)(A)(i) Deposition rules.
Rule 30(b)(6) Allows requester to just identify topic to be explored, placing the burden on the organization to produce a
knowledgeable person.
FR 33 Interrogatories
FR 34 Requests for documents and tangible items, land, electronically stored info, medical records.
FR 34(b)(2)(E)(i) Must produce documents as they are kept in the usual course of business
FR 35 Must make special application showing good cause for requesting physical and mental examinations of parties
FR 36 Request for Admissions: only against parties, in writing, cheap, and of limited usefulness. Used to eliminate
essentially undisputed issues
FR 37 Introduces sanctions for parties violating more specific obligations.
FR 37(b) Sanctions can be sought only after court has ordered a party to comply and they have refused.
FR 37(c)(2) Gives Rule 36 teeth.
FR 37(d), (f) Sanctions available for misbehavior.
FR 45(a)(1)(A)(iii) Subpoena issued to non-party to the suit specifying documents requested for discovery
Davis v. Precoat Metals N.D. Ill. 2002.
Title VII class action against employer for alleged racial/national origin discrimination
Civil Rights law = fee-shifting
15
Ps requested discovery docs about complaints from employees at same plant and complaints from
employees of same kind of discrimination.
Court held the request was sufficiently tailored to specific claims of the case: same plant, same discrimination.
Why was employer so reluctant? Because the other complainants could join the class action lawsuit.
Relevance is a relational concept: there is only relevance to something.
Steffan v. Cheney D.C. Cir. 1990.
P resigned from Navy after admin. board recommended he be discharged for declaring himself homosexual.
He sued to be reinstated bc dismissal was for invalid reason.
P claimed 5th amendment privilege against self-incrimination & refused to answer non-relevant depo qs
about past homo. conduct [5th amend. only available in criminal cases, which homosexuality was at the time].
District court dismissed his case as sanction for refusing to comply with discovery order.
Court ruled his conduct would be relevant if conduct were the basis for his discharge, but actually only his
statements were the basis for discharge.
Navys discovery request was too broad.
How did case go to appeal if discovery findings are non-appealable? Dismissal as a sanction is appealable.
Silvestri v. General Motors Corp. 4th Cir. 2001.
Silvestri crashed car; his lawyer retained two accident reconstructionists to examine vehicle and airbag was
deemed defective
3 years later, P sued GM in product liability action but never gave them opportunity to inspect the car.
Court dismissed Ps case as a sanction because destroying car was highly prejudicial for GM.
Could this be a malpractice case? Yes.
o Ordinarily competent lawyer would not make this mistake.
o Would have won the case were it not for lawyers incompetence.
Hickman v. Taylor US 1947.
J.M. Taylor boat sank in freak accident; tugboat owners retained counsel for potential suits from drowned
crewmembers surviving families.
Lawyer interviewed survivors and recorded his mental impressions.
Court ordered him to comply with Ps request for all statements and papers; he refused (went to jail).
Supreme Court held that work product is privileged; Ps could have obtained same information if they wanted.
No Rule 26(b)(3) at the timeappeared in 1970 as a codification of the Hickman doctrine.
Underlying historical factual material is discoverablejust his opinions that are protected.
Thompson v. The Haskell Co. M.D. Fla. 1994.
P sought a Motion for a Protective Order for her psychological evaluation post-alleged sexual harassment.
Mental examination took place 10 days after her termination from employment; court found it highly probative.
26(b)(4) can obtain testimony of expert witnesses if party cannot obtain the facts by any other means.
Probative because only her depression 10 days after firing is important, not psychological state now.
You waive doctor-patient privilege when you sue.
Chiquita International Ltd. v. M/V Bolero Reefer S.D.N.Y. 1994.
Cargo of bananas was destroyed by alleged shipping malfunction.
Chiquita retained expert to inspect boatnon-testifying expert, so opinions should not be discoverable
Court held there were no exceptional circumstances to compel Chiquita to reveal their experts opinions.
What distinguishes it from Thompson: opportunity available to Ds to get their own information/surveyor.
Stalnaker v. Kmart Corp. D. Kan. 1996.
Kmart employee Graves allegedly sexually harassed P.
D filed Motion for Protective Order to not allow discovery of voluntary romantic conduct/sexual activity of 4
non-party witnesses.
Rule 26(b): Information sought in discovery need not be admissible at trial if it appears reasonably calculated
to lead to the discovery of admissible evidence.
Court held P could not discover any voluntary romantic/sexual activities except to the limited extent of those
activities related to sexual harassment by Graves.
Witnesses did not ask to be involved in litigation.
Rule 26(c) gives judge power to weigh importance of evidence vs. embarrassment from it srelease.
16
Zubulake v. UBS Warburg LLP S.D.N.Y. 2003.
Zubulake sued former employer for discrimination and retaliation under federal law.
P maintained proof was in email correspondence; she sought sanctions against UBS after it was discovered
some back up tapes were missing and some emails deleted.
Rule 34(a): There is a duty to preserve documents and tangible things likely to have discoverable
information that the disclosing party may use to support its claims or defenses.
Court held that UBS did endeavor to place litigation hold on relevant documents. P failed in her burden of
proving the evidence was not just destroyed, but that it would have been favorable to her position.
No showing from the evidence produced that D did not like P because of her gender.
Lost on adverse inference instruction; won on costs for additional depositions.
Three elements of adverse inference instruction (which Zubulake does not get):
o Obligation to preserve evidence at time it was destroyed
o Records were destroyed with culpable state of mind
o Records destroyed were relevant Court says no.
Another spoliation case. Distinguish from Silvestri because there, the expert specifically told lawyer he should
tell GM about the car and he still didnt.
Parties' Exchange
Exchange of Final
Complaint Parties' of Final Pretrial
Pretrial
Complaint & & Conference Expers' Reports
Expers' Reports
Service Conference :: Initial
Initial Scheduling
Scheduling Party-Initiated
Party-Initiated Pretrial
Pretrial Order
Order ::
Service :: Discovery Disclosures :: Experts
Experts
Rule 8 : Rule Discovery Disclosures :: Order
Order :: Rule
Rule Discovery
Discovery :: Depositions
Depositions ::
Disclosures
Disclosures :: Superseding
Superseding
Rule 8 : Rule Plan
4 Plan :: Rule
Rule Rule
Rule 26(a)
26(a) 16(b)
16(b) Rules 26-35
Rules 26-35 Rule
Rule 26(a)(2)
26(a)(2) ::
Rule
Rule 26(a)(3)
26(a)(3) the Pleadings
the Pleadings
4 26(f) :: Rule 16(e)
26(f) 26(b)(4)
26(b)(4) Rule 16(e)
18
Chapter 8: Resolution Without Trial
FR 41 Allows one re-filing of a suit that has been voluntarily dismissed.
FR 41(b) Dismissal for failure to prosecute (plaintiff doesnt follow through)
FR 55
FR 60(b)
FR 26(c)
FR 56 Summary judgment
FR 56(d) If non-movant shows that it cannot present facts to justify its argument, court can either
Defer motion or deny it
Allow time to obtain affidavits or declarations to take discovery
Issue other appropriate orders
Rule 56(e) In order to withstand a summary judgment motion, nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.
28 USC 1738 Full Faith and Credit Act. Judicial proceedings of any state have same FFC in every other state.
FR 16(a)(5) Establishes facilitating settlement as goal of a pretrial conference
FR 16(c) management techniques ranging from establishing time limits to encouraging settlement
Federal Arbitration Act
19
Implication: arbitration agreements are a way around class action lawsuits.
High minimum recovery designed to show courts the arbitration was a reasonable alternative to litigation.
Ferguson v. Writers Guild of America, West Cal. App. 3d 1991.
P sued to get credit for his screenplay; Writers Guild had procedures in place for arbitration of credit disputes
Court held that they would defer to Guild arbitration.
System might be unfair to new writers, but Ferguson was well established and could not make this argument.
Celotex Corp. v. Catrett US 1986.
Adickes precedent: party who moved for summary judgment had burden of demonstrating no possible factual
dispute to any part of claim or defense. Having to prove other side cant win=almost impossible to get
summary judgment.
Celotex changes that by making non-moving party prove there IS an issue of factual dispute.
Catrett sued Celotex alleging husbands death from asbestos coming from Celotex products.
Celotex filed for summary judgmentunder old rule, D would have to show Catrett could NOT have been
exposed to Celotex asbestos.
Under new rule, Celotex just shows witnesses testimony raises no factual dispute; Catrett must show
evidence that he was exposed.
Celotex aligns burden of producing evidence at trial with burden of producing evidence at summary judgment.
Important implications: Must have all your admissible evidence gathered before trial, at the summary
judgment stage, to meet burden of production. Discovery may not be such an essential part of the process if
evidence needed must be gathered before trial ever comes.
Three things after Celotex:
o A party who avoids summary judgment will ordinarily avoid a directed verdict at trial, because the two
burdens are aligned (same result unless available evidence has shifted significantly).
o Parties are under pressure to use available discovery devices well before trial. They need to use the
evidence that carries the burden of production on their claim.
o There should theoretically never be a directed verdictevidence will be the same at trial, so should
have been knocked out in summary judgment.
Bias v. Advantage International, Inc. F.2d 1990.
Basketball star Bias told his agent to secure a $1 mil life insurance policy
A few days later he died from cocaine overdose and agent had never secured policy like he said
Court awarded Ds summary judgment b/c even if agent had tried to get the policy, he never would have
succeeded b/c jumbo policies not given to drug users.
Even though Bias parents disputed fact of drug use, it was undisputed/corroborated by many.
Ps lost because they couldnt point to a specific insurance policy that would have taken a drug user.
- Alternatives to Adjudication
o Default and Default Judgments
o Involuntary Dismissal
Scheduling Orders
Failure to Prosecute
o Voluntary Dismissal
- Avoiding Adjudication
o Negotiations and Settlement
Contacting to Dismiss
Third-Party Participation
Contracting for Confidentiality
- Arbitration
- Adjudication Without Trial
o Summary Judgment
20
Fairy godmotherdiscovery process used to gain fuller picture of what trial may look like, and
parties arrive at converging assessments of value of claimssettlement avoids risks of trial and
saves costs, and terms can be custom-tailored to serve parties interests.
Ogreplaintiff, ground down by party with greater resources, abandons strong claim; or
conversely, D pays to settle a meritless claim out of fear of small chance for large judgment.
- Settlement is an affirmative defense to future litigation on same case.
- Mediation: Assisted negotiation aimed at settlement. Alternative Dispute Resolution Act of 1998, 28 USC 651.
o Muscle mediating: threaten to tell judge party/parties are being unreasonable
o Positional mediation: start by asking parties how much they want to settle the cases.
o Even if no agreement on outcome, might be agreement on process.
- 3 main ways of non-trial resolution:
o Default judgments
o Settlement
o Involuntary dismissal
- Criminal cases before 1900s more like civil system b/c private prosecutors commonparties propelled system
- That system elevates justice above fairnesschanged to state-sponsored justice b/c of victims-rights movements
- The difference between Common Law and Civil Law systems:
o The degree to which the judge assumes responsibility for a just outcome
o The extent to which parties are able to suggest or insist that judge pursue lines of inquiry
US system goes farthest in assigning parties responsibility for initiating/pursuing civil claims
- Involuntary dismissal: Ps file suit but fail to pursue the case. Rule 41(b) dismissal for failure to prosecute.
- Demography of civil litigation:
o Growth in civil filings outpaces population but lags behind GDP.
o Contracts & torts have different financing mechanisms and go to trial at different rates.
- History of summary judgment
o 19th century: designed to eliminate unnecessary jury trials in a very small number of cases: Ps suits on
bills of exchange (checks). Very few defenses available if you didnt pay the amount of the check.
- Admissible evidence in summary judgment: sword statement; copy of deposition transcript.
Arbitration
- Agreement to arbitrate put into contracts before any disputes arise: cell phones
- Differences from litigation:
o No appeal
o Not as public
o Customized procedure
o More expensive sometimes, less expensive other times
o Choice of judge (arbitrator) usually 3 (one from each side plus third chosen by first two)
o Hi-Lo: lower limits and upper limits can be defined
o Parties decide what substantive law applies
o No jury
o Limited discovery
- FAA preempts state law that bans arbitrating disputes; arbitration can only be voided on grounds that nullify the
whole contractbut state law of unconscionability will apply.
- Celotex Hypotheticals
o If D moves for summary judgment and asserts there is no evidence of exposure to Celotex asbestos?
Responses: a deposition of supervisor stating where purchase records are kept or an affidavit
from supervisor saying Celotex was used by most people in the industry.
o If D moves for SJ on grounds that suit was filed after 10 year statute of limitations?
This shifts burden of production onto Celotex: they must show a reasonable person would have
recognized his condition more than ten years before the suit was filedif no such showing, the
motion will be denied.
22
Amendment VII
FR 38
28 USC 1861-63
28 USC 455
Amendment XIV
FR 59
23
Flawed verdicts
Conditional new trials
New trial limited to damages
Remittitur and Additur
o The Reexamination clause and the jury as a black box
Juries
- During drafting of constitution, proponents believed juries would be sympathetic to the claims of rural debtors
when sued by big-city or foreign creditors.
- Rule 48: unanimous verdicts still required in federal system unless parties agree to non-unanimous verdict
Judges
- 28 USC 351: Persons can file complaints against judges
o 1/3 of states allow peremptory challenge of judges by timely filling of affidavit that judge is prejudiced
One challenge for each side
o 28 USC 144: Requires cause for peremptory recusal in fed. Ct; 455 defines causes
New Trial
- Rule 59
- Sounds like 7th Amendment Reexamination clause because it does not specify reasons: any reason for which a
new trial has heretofore been granted
o Example: flawed procedure [Mainly: flawed verdict went against the great weight of the evidence]
Impermissible argument allowed
Improperly admitted evidence
Erroneous jury instructions
Juror misbehaved
- 59(d) allows judge to order a new trial even if no parties asks for one
- Conditional new trials: limited to damages
- Remittitur judge orders new trial unless P agrees to accept reduced compensatory damages
- Additur judge orders new trial unless D agrees to higher damages
25
Land dispute: Durfee said in NB; Duke said in MO. Nebraska trial court found for Durfee and SC affirmed.
Duke then filed suit in MO court alleging land was in MO; removed to district court on diversityfound for P.
US SC held that question of jurisdiction was decided in first case, so could not re-litigate that issue.
A party who appears and litigates a challenge to SMJ is bound by the resulting decision.
United States v. Beggerly US 1998.
Fed. Gov. brought quiet title action for land so they wouldnt have to purchase it; they settled for modest sum
after no evidence found that ownership was legit.
Evidence of legit. ownership found later, but Ct did not reopen case b/c no grave miscarriage of justice.
Res judicata claim preclusion estoppel by judgment. [Res judicata is also collective term for issue & claim preclusion]
- Forbids a party from litigating a claim that was or could have been raised in former litigation
- Goals of finality, avoiding inconsistency, and efficiency:
o Common law pleader could not combine writs in a single suit
Could not bring second claim on same writ, but could bring different writ on same facts
o Field Codes (19th c) and Federal Rules (20th c) free pleaders from confines of writs
o Rule 8 designed to make pleader consolidate all claims into one suit
- Rule 42(b) does not force court to try all the claims in a single suit
- Doesnt apply if first court lacked jurisdiction or if its from same occurrence, but different partys claim.
- Rule 60(b)(5) postpones decision on claim preclusion until after appeal is resolved.
- Preclusive effect applies only to judgments on the merits. (Exception: suit dismissed as sanction is precluded.)
- NO CLAIM PRECLUSION: Dismissals for lack of jurisdiction, improper venue, or failure to join party under FR 19.
Collateral estoppel issue preclusion estoppel by verdict. Deeper but narrower bite.
- Claim not barred from subsequent litigation because its a different cause of action, but some issue decided in first
suit cant be brought up in second.
- Prevents inconsistent findings.
- R2d of Judgments 27 must be actually litigated and determined.
- 1st Civil (P wins), then Criminal precluded? Nodifferent burden of proof.
- NO ISSUE PRECLUSION: verdict was result of jury compromise; prior determination manifestly erroneous, newly
discovered information not available to P at first trial.
- R2d of Judgments 28: no issue preclusion when inconsistent judgments, new info or diff. relationships in 1st case.
- R2d of Judgments 26: exceptions to splitting claims into different cases.
Claim Preclusion
o Precluding the Same Claim
Efficiency
ConsistencyThe logical implications of the former judgment
o Between the Same Parties
Binding a nonparty to the results of a lawsuit
Substantive legal relationships
Express agreement to be bound by a decision to which one is not a party
Instances of procedural representation
o After a Final Judgment
o After a Judgment on the Merits
Should the federal preclusion doctrine change after Iqbal, which increase the level of detail in
federal pleading?
- Issue Preclusion
o The Same Issue
o An Issue Actually Litigated and Determined
o An Issue Essential to the Judgment
o Between Which Parties?
The Victim of Preclusion
The Precluder
- The Boundaries of Preclusion
26
o Claim Preclusion
o Issue Preclusion
o Probing the Borderlands of Preclusion
- Repose: Collateral Attack and Reopened Judgments
o Full Faith and Credit as a Bar to Collateral Attack
o The Reopened Judgment as an Alternative to Collateral Attack
- Auto Accident
o Sue same party a second timethey can plead affirmative defense of res judicata (claim preclusion).
o They would then move for summary judgment.
o Policy?
More efficient, unfair to keep litigating same thing.
- Rush v. City of Maple Heights
o Personal injuries in second suit precluded because she only sued for property damage in first suit.
o Claim preclusion: not just claims litigated, but all claims that could have been litigated
o HYPO: What if system did not allow her to combine claims for pers. injuries & damages? NO preclusion.
- CENTRAL THEME: competing goals of civil procedure
o Air disputes completely End disputes quickly
o Things that promote finality:
Statute of limitations
Precedent limits dispute about governing legal principles
Appellate courts have limited power to overturn trial court findings
Claim and issue preclusion
- Counterclaim
o Must arise out of same transaction/occurrence
o Cannot add party over whom court cannot get jurisdiction
o Rule 13 has explicit command to bring related counterclaims; Rule 8 contains no explicit instructions.
- In privity
o Someone not formally named as a party was so closely related to a suit, its appropriate to treat them as if
they were so namedin privity describes party bound by the first suit.
- Binding a non-party
o Substantive legal relationship. Successive owner of property, beneficiary/trustee, heirs/executors.
o Express agreement to be bound by suit to which one is not a party.
o Procedural representation. Guardians for minor appointed by court, class actions, contingent beneficiary
The interests of the party were sufficiently represented in first suit.
- Rule 52(a) requires bench trial judge to set forth findings of fact/conclusions of law.
- Restatement 1 of Judgments: when alternative grounds for decision exist, both issues should be precluded.
- Restatement 2 of Judgments: neither should be precluded.
- Reopening a case: Rule 60(b) allows reopening on post-verdict motion.
o Unlawful means of victory for prevailing party: improper service of process; concealing key evidence.
o Why not appeal? B/c original court committed no procedural errors.
Chapter 2: Personal Jurisdiction
Article IV, section 1 Full Faith & Credit: comes into play when party seeks to enforce judgment they have obtained
elsewhereother party will challenge default judgment against them.
Amendment XIV Due Process clause: Comes into play when party learns they have been sued in court of doubtful
jurisdictionthey will follow up with 12(b)(2) motion to challenge personal jurisdiction.
FR 12(b), (h), (g)
FR 4(k)(1)(A) Lines up personal jurisdiction of federal court with state court.
FR 4 Jurisdiction in federal court.
28 USC 1391, 1404
Federal Interpleader Act gives fed. Courts power to serve process anywhere in the country..
27
Constructive notice of summons in newspaper; default judgment against Neff led his land to be seized, sold.
Second suit: Neff sues Pennoyer to recover the land by invalidating first judgment on lack of personal J.
Court held that first judgment was invalid b/c newspaper is insufficient constructive notice, but service of
process by seizing land is permissible.
Claim preclusion does not attach when first judgment lacked jurisdiction. (Nor does FF&C apply.)
If jurisdiction is litigated in the first forum, it cannot be raised a second time on collateral attack.
Implications:
o Giving notice within the state brings nonresident under state courts jurisdiction.
o State courts have power to take land, but only if they attach/seize land prior to adjudication (not what
happened in Neff).
International Shoe Co. v. Washington US 1945.
Washington sued to recover employer payments to state fund; Shoe responded they dont do business in WA.
Court adapted Pennoyer doctrine to a business corporationlegal fiction that certain amount of systematic
and continuous activity = presence in the state.
Pennoyer concepts of presence/consent Shoe concepts of minimum contacts/substantial justice & fair play
Sliding scale: more activities means less the claim filed needs to relate to those activities for PJ to exist.
McGee v. International Life Insurance Co. US 1957.
CA resident paid premiums on life insurance by mail to TX office; Ins. Co. refused to pay after he died.
Is 1 CA customer enough to create activity? Court held yes. Contract delivered there; insured was resident.
Hanson v. Denckla US 1958.
PA resident created trust in DE and subsequently moved to FL.
Court held not enough minimum contacts with FL b/c no office there for trust company; no availing itself of
privileges of conducting activities in forum state nor any invocation of benefits/protection of FLs laws.
Shaffer v. Heitner US 1977.
Board of Greyhound sued by shareholder on behalf or the corp. (shareholders derivative suit).
He obtained jurisdiction over Ds by sequestration of 82,000 shares of stock options belonging to Directors.
Fuentes establishes seizure without hearing ok for public interest or greater state interest.
Court held that seizing stock did not satisfy Shoe requirement: minimum contacts/traditional justice & fair play
World-Wide Volkswagen Corp. v. Woodson US 1980.
NY distributor and dealer sell car to Ds, who get in accident in Oklahoma on their way moving to Arizona.
Court held not enough minimum contacts to support products liability action in OK: autos inherently mobile.
Ds did not target OK because they bought no advertising or made any sales.
Tactical maneuvering: knocking out 2 NY Ds gets suit into federal court on diversity grounds.
Burger King Corp. v. Rudzewicz US 1985.
BK, HQd in Florida, bring suit against Michigan franchisees to recover defaulted loan payments.
Court holds Ds purposefully availed themselves of benefits of FL laws because contact with BK in FL.
May be wrongly decided: BK had much greater leverage than R.
Pavlovich v. Superior Court Cal.4th 2002.
P was sued by DVD creators for website explaining how to save encrypted DVDs to computer.
CA court held there was no evidence his site targetedPs lawyer should have tried to find evidence of
deliberate intent to target CA; that would have established PJ there.
Lawyer worked for free because hew wanted to establish himself as Internet defense lawyer whiz kid.
J. McIntyre Machinery, Ltd. v. Nicastro US 2011.
Worker injured by machine sues foreign (UK) manufacturer.
D escapes jurisdiction because did not target the NJersey market or purposefully avail themselves of NJ laws.
Suit could have been brought in Ohio, where US distributor had contacts, but distributor went out of business.
Important: Split court decision. 4 plurality; 3 dissent (Ginsburg/Sotomayor/Kagan); 2 concurring (Breyer/Alito)
Goodyear Dunlop Tires Operations, S.A. v. Brown US 2011.
Goodyear subsidiaries made tire that caused bus accident in France killing American children.
Court held no jurisdiction in NC because nonresident D didnt place product into stream of commerce in that
forum; stream of commerce/systematic activity only germane to specific jurisdiction, not general.
28
If parent and subsidiaries treated as one corporation, the suit would have come out differently.
Burnham v. Superior Court US 1990.
Burnhams married in NJ; divorced and she moved to CAserved him w/ divorce papers on a visit to see kids.
Court held state could have jurisdiction over nonresident personally served with process while temporarily
present in the state (general jurisdiction)revival of tag jurisdiction.
Important: No majority, but unanimous result. 4 justices voted it was PJ because he was served in CA; 4
justices voted it was PJ because he availed himself of CA laws; 1 didnt say why.
Carnival Cruise Lines, Inc. v. Shute US 1991.
Ps bought ticket to cruise that had a contractual forum-selection clause clearly marked on back of ticket.
Court held it would be unreasonable for Shutes to negotiate terms; they could have chosen not to get on boat.
Reasoning behind forum clause: passengers from all over; too expensive for co. (and thus consumers) w/o it.
Mullane v. Central Hanover Bank & Trust Co. US 1950.
Accounting is letting beneficiaries know they can challenge Bankss exercise of power.
Pooled trusts managed by D; beneficiaries sued after Bank notified them of accounting only be newspaper
when it had addresses on fileCourt held that when addresses available, or when reasonable due diligence
makes them identifiable, they must be used for service of process.
Need only ask what would satisfy a prudent man of business in knowing how much effort to put in to contact.
In practice, need not worry about constitutional adequacy of notice because Rules have standard procedures.
Piper Aircraft v. Reyno US 1981.
Scottish air crash; suit against manufacturer of plane brought by estate administer in CA court.
Ds remove to federal court in PA. (Did not challenge PJ, although Goodyear suggests they would not be
subject to PJ if the suit were going on today, and could have successfully challenged it.)
Ds make motion to dismiss on grounds of forum non conveniens.
- The origins
- The modern constitutional formulation of power
o Redefining constitutional power
o Absorbing in rem jurisdiction
o Specific jurisdiction: the modern cases
o General jurisdiction
- Consent as a substitute for power
- The constitutional requirement of notice
- Self-imposed restraints on jurisdictional power: long-arm statutes, venue, and discretionary refusal of jurisdiction
o Long-arm statutes as a restraint on jurisdiction
o Venue as a further localizing principle
o Declining jurisdiction: transfer and forum non conveniens
Forum Non Conveniens
29
o Corporations
State of incorporation.
State of principal place of business.
- HYPO: Children injured trespassing on your out-of-state property. Can you challenge jurisdiction? No: property
itself gives rise to the claim. But cases not related to the property do not provide grounds for PJ in that state.
- Specific Jurisdiction: Claims arising out of activities in that state. (Burger King)
- General Jurisdiction: Claims not arising out of activities in that state. Domicile/Incorporation/Principal P.o.B.
o Auto accident in place youre just passing thru: they can establish PJ there.
- Spectrum of contractual clause:
o Choice of law. Particular jurisdictions law will govern disputes.
o Consent-to-jurisdiction. Consent to suit in particular place; waives PJ challenge.
Why would co. want this? Home court advantagemore familiar, cheaper.
o Forum selection. Stronger than consent to jurisdiction; limits forum to single location.
Difference from consent? Suit can be brought nowhere else; previously just agreed not to fight it.
o Arbitration. Disputes must be settled by arbitration.
What if international? USA has no treaties to enforce judgments outside US. UN Convention on
Recognition of Foreign Arbitral Awards makes arbitration enforcement by domestic courts routine.
o Confession of judgment. Waiving right to hearing/notice: only ok in cases to get extension on a loan.
- Sample Exam Question: what if Carla leaves WA corp. Microsoft /sues them in CA (new home) for discrimination?
o Show what cases are relevant: Dunlop at minimum.
o Show you understand sliding scale: more business means more justification for general jurisdiction.
o Show what additional information you need: how much business Microsoft does in CA.
- Dismissals for purely jurisdictional reasons do not have preclusive effect.
- State courts limiting their own jurisdictional reach:
o Long Arm Statute (statutory)
California CCP 410.10 explicitly reach as far as we can to limits of due process
NY Civil Practice Law & Rules fulfill criteria before NY will exercise jurisdiction over you
o Venue (statutory)
Jurisdiction & Venue Clarification Act of 2011 28 USC 1391.
Civil action may be brought in:
o Judicial district of Ds residence.
o Where events giving rise to claim occurred.
o Any judicial district in which D is subject to personal jurisdiction.
o ANY judicial district for alien corporations.
28 USC 1404: Can transfer from one court to any other court in same district where it might
have been brought or that all parties consent to.
o Forum non conveniens (Common Law)
Declining to exercise jurisdiction even where possible because less convenient, just, or efficient.
In return, Ds agree to waive statute of limitations defense/jurisdictional or venue defense in
alternative forum. [Only 4% of cases moved overseas actually reach trial there.]
Rule 4
- Serving summons from district court establishes PJ over D who is subject to state jurisdiction where that district
court is located.
- Waiver of service is alternative (time and cost = carrot and stick)
o Send first class letter with copy of complaint and Form 5
No response:
Duty to avoid unnecessary expense. Rule 4(d)(1).
Must pay cost of subsequent service. Rule 4(d)(2).
If they do respond:
They waive objection to sufficiency of summons. Rule 12(b)(4)-(5).
First, they get 30 days to respond to waiver.
30
o If they do, they get 60 instead of 21 days to answer the complaint (90 for foreign).
Rule 12(a)(1)(A)(ii).
o For many states, statute of limitations does not stop running until process has been served. Rule 3.
o Hague Convention on international service of process (US Dept of Justice in America).
- Other forms of notice:
o Personal service of private process server
o Federal marshal as last resort
o As specified by federal statute, state statute, or international treaty
- Rule 4(k)(1)(A) Federal courts have PJ over any D whom state courts would have PJ over.
- Rule 4(k)(1)(B) 100 mile bulge in personal jurisdiction of fed. district court when joinder under Rules 14/19.
- Rule 4(k)(2) Foreign Ds subject to PJ by tag jurisdiction.
- Sewer service: intentionally fails so process server does less work for same $ and P gets easy default judgment
Power
Power Consent
Consent Notice
Notice
Over persons
Over persons
Over
Over Property
Property and
and Carnival Cruise
Carnival Cruise Mullane
Mullane
(in
(in rem)
rem) corporations
corporations Lines
Lines
(in
(in personam)
personam)
International
International
Shaffer
Shaffer Shoe
Shoe
Burnham
Burnham
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Federal Compromise
- Affiliated sovereigns divide power on agreed-upon lines
- Personal jurisdiction flows from Due Process clause
- Federal subject matter jurisdiction flows from Article III and/or related statutes
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Court held there were common and operative facts from which both claims derived, and neither claim could
be resolved without affecting the other, so there was supplemental jurisdiction for state claims in Fed. Ct.
Szendrey-Ramos v. First Bancorp D.P.R. 2007.
Szendrey brought both federal Title VII discrimination claims and Puerto Rico law claims to Fed. Dist. Ct.
Court held that non-federal claims raised complex/novel issues and predominated over federal claims
Declined to exercise supplemental jurisdiction over Puerto Rico claims; suit went forward w/ only fed. claims
Caterpillar, Inc. v. Lewis US 1996.
P Lewis (KY) filed suit against Caterpillar (DE corp.) and Whayne (KY corp.) for job-site injury.
His insurer Liberty Mutual sued the two corps. to recover amount paid out in workers comp.
After Lewis settled with Whayne, suit was unjustly removed to fed. Court of basis of diversity.
Court holds that even though it was wrong, they will not vacate removal for reasons of efficiency, economy.
Chapter 12
FR 13
FR 18
FR 20
28 USC 1367
FR 14(a), (b)
FR 13(g)
FR 19
FR 24
FR 22
28 USC 1335
28 USC 1397
28 USC 2361
- Joinder of claims
o Joinder of claims by plaintiff
Historical background
The Federal Rules
Joinder and jurisdiction
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- Joinder of parties
o By plaintiffs
o By defendants: third-party claims
o More complex litigation
- Intervention
- Interpleader
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