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FALL 2005


Pleading Discovery Summary Judgment Motion Trial Verdict j.n.o.v

//Directed Verdict
/Directed Verdict
If appeal is granted after a Directed Verdict, legal process goes all the way back to pleadings.
If appeal is granted after a j.n.o.v. or order for a new trial, just go back to original verdict.

9. Filing Suit: Pleadings

Pleadings: papers which parties file w/ court to commence litigation
files a complaint which includes jurisdiction, short and plain statement of claim, demand for judgement
files an answer that denies, affirms, or states ignorance for each of s charges.

A. Main objectives
1. short and plain statement to give notice to both parties
2. screen out cases immediately if not meet jurisdiction, venue, or service of process
3. cases decided on the merits, not dismissed on technicalities (old fact-pleading rules)

B. Federal Rules of Civil Procedure (FRCP)

Established under the Rules Enabling Act of 1938, USSC committee drafts rules.
If Congress does not reject, rules go into effect.
Only applies to federal courts, but most states copy FRCP for themselves.

Relevant rules: 7,8,12

FRCP 7: Forms of Motions
a. complaint by ; answer by
reply to counterclaim/answer to cross claim
b. motions shall be in writing unless during trial; must set forth relief or order sought

FRCP 8: Rules of Pleading

a. Short and plain statement of: grounds for jurisdiction, entitled to relief, specific relief the
pleader seeks statement must either invoke a body of law or have facts to apply to the law
b. In response to claim deny, affirm, or state ignorance to each statement in the complaint
c. Affirmative defenses include statute of limitations, fraud, waiver, contributory negligence etc.
which serve as additional facts constituting a defense
d. Failure to deny acts as admission
e. Alternative theories, even if contradictory, are allowed; pleadings must be simple and concise

FRCP 12: Defenses and Objections

12(b): Grounds on which to obtain dismissal
(6) most common: failure to state a claim upon which relief can be granted
even if everything your motion is true, the law hasnt been broken i.e. so
must allege sufficient provisions to support the claim
Other motions include: lack of jurisdiction over subject matter or person
improper venue
insufficient process or service of process
failure to join a party under rule 19
12(c) motion for summary judgement after pleadings but before trial
12(h) waiver of defenses: (1) personal jurisdiction, venue, and process waived if not upfront

(2) others, such as 12(b)(6) are preserved at the trial
(3) subject matter jurisdiction NEVER waived, can be raised by
any party (including court) at any time
FRCP 15: Amended and Supplemental Pleadings
(a): party may amend pleading before response is served, or if no answer is required, within 20
days after filing
(c): leave shall be freely given when justice so requires
i. for : court may allow amendments to relate back to the original date even if statute of
limitations has run if the claim arose out of the original claims conduct or occurrence
ii. for : may deny change in amendment when statute of limitations has run out if was in
the best position to prevent the mistake

C. Pleading Cases:

Formal Sufficiency of the Complaint

1. Swierkiewicz v. Sorema 2002 (U.S.) p. 40
Rule of law: 8 - Pleading only needs to give fair notice of claim and grounds for claim.
Facts: filed claim for discrimination in district court, complaint dismissed because claim
insufficient to raise an inference pf (age and ethnicity) discrimination, appealed.
Holding: Supreme Court ruled a plaintiff need only give the defendant fair notice of what the
plaintiffs claim is and the grounds upon which it rests.

Filing and Serving the Complaint

2. Rio Poperties v. Rio International Interlink 2002 (9th Cir.) p. 50
Rule of law: Rule 4: service of process must be reasonably calculated to notify of the
proceedings against him.
Facts: unable to serve with process, court granted petition to allow to serve through e-
mail, appealed claiming insufficient process.
Finding: Court upheld service, ruled that in these circumstances e-mail was a means reasonably
calculated to apprise of the pendency of the lawsuit, and the Constitution requires
nothing more.
Note: Technicality of rule 4 creates a tension with generally liberalizing nature of rules.

Rule 12 Motions
3. Conley v. Gibson 1957 (U.S.) p. 58
Rule of law: 12(b)(6): motion to dismiss cannot be granted merely on the grounds that the
allegations are false (fact-finding is for the jury).
Facts: filed claim for unfair representation by union where black employees were replaced by
whites. moved to dismiss on 12(b)(6) grounds (failure to state a claim)
Holding: Complaint should not be dismissed for failure to state a claim unless in appears beyond
a reasonable doubt that can prove no set of facts in support of claim which would
entitle him to relief.

4. King Vision v. J.C. Dimitris Restaurant 1998 (N.D. Ill.) p. 64
Rule of law: 8(d): answer must admit, deny, or ask for more information. Non-conforming
answers are treated as an admission.
Facts: filed answer stating Neither admit nor deny, but demand strict proof thereof
Holdings: Non-conforming answers are a positive admission.

Affirmative defenses
5. Carter v. United States 2003 (7th Cir.) p. 67
Rule of law: If is not harmed by later affirmative defense, judge can admit it.
Facts: Suit for medical malpractice, sought to later invoke affirmative defense, appealed
claiming forfeited defense by failing to include it in answer.

Holding: could have reasonably assumed the affirmative defense would be used. The judge can
admit the late defense even though not generally admissible because outside 8(c) time

Amending the Pleadings

6. Robinson v. Sappington 2003 (7th Cir.) p. 70
Rule of Law: Rule 15: leave to amend should be freely granted when justice requires.
Facts: filed sexual harassment suit against employer. included affirmative defense in motion
for summary judgment that hadnt been included in its answer, motioned for leave to
amend answer and trial judge granted.
Holding: 1) had notice, 2) had ample opportunity to response, and 3) failed to show prejudice.
The court did not abuse its discretion in allowing to amends its pleadings.
Note: tension between two goals of rule 15: liberal permission to amend to reflect variance of the
case as it develops; and not wanting to unduly prejudice the other side.

7. Tran v. Alphonse Hotel 2002 (2nd Cir.) p. 74

Rule of law: A new action relates back to the original claim if it arose out of the conduct set forth
in the original pleading.
Facts: seeks to amend complaint to include RICO violations but state of limitations has run out.
Argues that RICO claim relates back to original claim & thus does not violate the state of
Holding: s amendment introduced significant new factual allegations that fundamentally
changed the nature of the allegations. Amendment denied.

D. Ethical Limitations: Rule 11

a. General Functions: ethical limitations
i. makes for good lawyers
ii. prevents frivolous cases with large settlement values
iii. prevents litigation as harassment
b. Controversial Rule
i. Tension between goal of discouraging frivolous litigation (litigation should be taken
seriously) and simultaneously not discouraging good litigation (civil rights litigation)
ii. Competing Narratives
1. Franz: Litigation costly and time consuming, dont file suits lightly want to deter
frivolous lawsuits
2. Patsys: people make mistakes and dont want to discourage good litigation fear of
over-deterrence of even good claims
c. Requires lawyers to sign all pleadings and motions
d. Make reasonable inquiry before filing (motions and pleadings)
i. Filings cannot be intended just for harassment or delay
ii. Cant file frivolous extensions of existing or new lawsuits
iii. Cant file if know that have no evidence
e. Sanctions
i. discretionary
1. court may impose them but dont have to
ii. Nature of Sanctions (judges discretion)
1. limited as to act as a deterrent
2. monetary penalty
3. attorneys fees
4. reprimands
5. censure
f. Hypo: What if someone brought a frivolous suit just to force defendant to settle and avoid court
fees? (Basically extortion)

Rule 11 Cases

1. Patsys Brand Inc v. I.O.B Realty 2002 (S.D.N.Y.) p.76 and Re: Penne & Edmonds 2003 (2nd Cir.)
p. 83
Rule of law: When court brings sanctions su sponte there is no safe harbor provision (21 days to
amend violation this applies when brought by opposing party) so standard must be higher.
Facts: lied in affidavit and counsel ignored that fact. Court brought Rule 11(c) sanctions su
sponte (on its own).
Finding: sanctions against attorneys, later overturned.

2. Frantz v. US Powerlifting Federation 1987 (7th Cir.) p. 88

Rule of law: sanctions if file a suit w/out reasonable inquiry of established law
Facts: filed suite alleging conspiracy between managers and corporation.
Finding: apply sanctions to law firm for lack of legal research (precedences says cant have
conspiracy between manager and corporation)
Note: Ignorance is no excuse for getting out of Rule 11(c) violations filing a lawsuit is serious so
dont file if you dont know the facts.

**Modern Pleading summary: not as rigid as past, fewer pleas dismissed on technicalities
Price: pleadings not as sharp, not give as much information to other sides
Information to come out in discovery

II. Discovery

A. Main Objectives
1. gather all evidence that is relevant and not privileged
2. find out what other side has: No more Perry Mason surprises
3. ideally, lead to fair pretrial settlement if both sides know complete story

Discovery tools: 1. Asking questions (oral deposition or written interrogatories)

R 28,30-33,37
2. Examining things (documents, physical objects, persons) R 34,35
3. Asking other side to admit to facts R 36
All tools can be used to get information from a party, but only depositions and exams
of physical objects may be used on nonparties subpoena

Problems w/Discovery Possible solutions

Conflict b/t discovery and privacy Privileges (lawyer/client, priest/penitent)
Conflict b/t discovery (shared exchange) and Work product rule
adversarial system (not want to do work for other Nontestifying retained expert witness exception
One side swamping other w/ sea of pretrial Rule 11(b)(1) sanctions for unnecessary delay &
discovery requests needless increase in cost of litigation
** Tension between value of information and cost of producing it

Privilege: protection for info from certain sources, but not protection for the facts themselves.
All privileges can be waived. Ex. if client reveals lawyers conversation to a 3rd party, waived
lawyer/client privilege
Relevance: not matter because it is privileged, but if it wasnt relevant, other side would not want it.
Work product: Material produced by/for party or by/for partys representative for purposes of
litigation. Only communication b/w attorney and client is privileged. All other can be discovered
only if otherwise unavailable to other party and absence creates an undue burden.
Mental conclusions of attorney never discoverable. R 26(b)
Experts: if testify, everything is discoverable R 26(a)(b)

If not testify, only discoverable in extraordinary circumstances when facts not otherwise

Admissibility: Not need to be admissible to be discoverable, just likely to lead to admissible evidence
R 26(b)

**Power: because discovery may be broad, may force to settle in order to not answer questions

B. Discovery Rules: FRCP 26-37

Quote from Prof. Hay: Do not memorize the rules, just know your way around them, and focus on 26.

FRCP 26: General Provisions Governing Discovery; Duty of Disclosure

a. Required disclosures:
1. Initial: w/out being asked; people, relevant documents, insurance info w/in10 days
2. Expert Witnesses: name, report, publications, etc.
3. Pretrial: potential witnesses, deposition transcripts, documents
4. Methods: oral depositions, written interrogatories, physical or mental examinations etc.
b. Discovery scope and limits:
1. any material, not privileged, relevant or reasonably calculated to lead to relevant
materials (not need to be admissible) is discoverable
2. Limitations: if too duplicative, easily accessible elsewhere, burden outweighs benefit
3. Work product: if substantial need for materials prepared in anticipation of trial, and no other
means, may disclosure trial preparation materials, but lawyers conclusions/ impressions still
4. Experts: can depose testifying witness experts after report if filed, only depose retained
experts if justice demands it
c. Protective orders
To protect parties when undue burden/expense/embarrassment outweighs evidentiary value

FRCP 27: Depositions Before Action or Pending Appeal

1. Can petition to depose witnesses even if not file action yet, use proper notice and service

FRCP 28: Before Whom Depositions May Be Taken

1. W/in US: officer authorized to administer oaths or appointed by the court
2. Outside US: person commissioned by the court

FRCP 29: Stipulations Regarding Discovery Procedure

If parties agree, can change limits/restrictions for depositions as long as not delay trial

FRCP 30: Depositions upon Oral Examinations

a. Need leave (court permission): in jail, already deposed, or beyond time limits & exiting US
b. Notice: to each party stating time, place, method.
If corporation named, must designate one or more who can answer questions
c. Exam and Cross examine: same as at trial. Note all objections, but continue
d. End or limit: instruct client not to answer only if privileged or scope limited by court. If bad
faith, annoy, embarrass or oppress the deponent, officer can stop or limit (expenses)
e. Review/Changes: can alter in form or substance w/in 30 days
f. No shows: if call depo and not show or forget to subpoena witnesses, pay expenses

FRCP 31: Depositions upon Written Questions

Only need leave of court for reasons cited above

FRCP 32: Use of Depositions in Court Proceeding

a. Use: to contradict testimony of witness, in place of witness if dead/too far/old/sick/not show
despite subpoena/interests of justice
b. Objection to admissibility: object just as if witness were present

c. Objection waivers: if not made right away, waive objections to notice, officer, form of questions,
written questions.

FRCP 33: Interrogatories to Parties

Not to exceed 25 w/out permission, answer under oath, make objections or waived, not need to answer
if facts are publicly available

FRCP 34: Production of Documents, Land Inspections

a. Scope: can request anything w/in 26(b) relevance, need to be as specific as possible
b. Nonparties: w/court order, may be made to produce documents/ inspection

FRCP 35: Physical and Mental Examination of Persons

a. Must show good cause
b. Party calling for exam must provide report to other party

FRCP 36: Requests for Admission

a. Seek admission of truth of facts
b. If accepted, treated as conclusively established for present case, but no other proceeding

B. Scope and Limitations of Discovery

Three fundamental limitations:
1. Relevance
2. Privelege
3. Proportionality

C. Discovery Cases

1. Sanyo Laser v. Arista Records 2003 (S.D. Ind.) p. 111
Rule of Law: party resisting discovery has the burden to establish the lack of relevance under Rule
Facts: Copyright infringement case; Rule 30(b)(6) filed motion to compel and filed a motion
for a protective order.
Finding: Motion to compel discovery was granted because information could affect the outcome
of the case, had the burden to establish lack of relevance

2. Zubulake v. UBS Warburg 2003 (S.D.N.Y.) p. 118
Rule of law: Seven factor test for cost-shifting (though not all elements weigh the same).
Facts: Sexual discrimination case where UBS did not want to pay for production of emails for
discovery claiming it was an undue burden; wanted to shift the costs to
Holding: Court ruled that only cost shift when there is an undue burden, created a random sample
test to determine relevance and how long it would take/how much it would cost to
produce the information.

Privilege and Trial Preparation Material

3. Hickman v. Taylor 1947 (US) p. 128
Rule of law: Rule 26: work product of lawyer, while not protected by attorney-client privilege, is
not discoverable w/out a showing of strong necessity to prevent injustice
Facts: tugboat sank killing 5 crewmen. attorney interviewed survivors in anticipation of
litigation. request all of the information related to interview, attorney not answer
because of privilege
Finding: Work product not discoverable upon mere request. Need to show undue burden, not in
this case because survivors could still be interviewed. If relevant non-privileged facts
otherwise unattainable in work product, must disclose, but burden is on invading party.
Note: Absolute immunity to discovery: attorneys mental impression/conclusion

Work product privilege is not limited to attorneys products. Anything prepared in
anticipation of litigation falls under work product protection.
Note: The holding in this case has been incorporated into an amendment to Rule 26.

Expert Information
4. Re: Tri-state Outdoor Media Group 2002 (Bankr. MD) p. 139
Rule of law: Rule 26(a)(2)(B): Disclosure of information to an expert witness assumes that
privileged or protected material will be made public and effectively works as a waiver of attorney-
client privilege.
Facts: objection in bankruptcy hearing because s expert witness was once a consultant for
and knowledge should be protected by attorney-client privilege.
Holding: By listing the accountant as an expert witness effectively waived attorney-client
privilege and work product with regards to information/documents accountant was privy

D. Discovery Disputes

1. Motion to Compel

FRCP 37: Failure to Make or Cooperate in Discovery: Sanctions

a. evasive or incomplete answer treated as failure to answer
b. considered contempt of court, pay fees
c. if not reveal initially disclosable or requested materials, not use at court, sanctions

National Hockey League v. Metropolitan Hockey Club Inc. 1976 (U.S.) p.147
Rule of law: Rule 37: failure to comply with discovery orders may result in sanctions
Facts: Dismissal of anti-trust action as sanction for failure to timely answer written interrogatories
as ordered by court
Holding: Extreme sanction of dismissal was appropriate in this case by reason of respondants
flagrant bad faith and their counsels callous disregard of their responsibilities.

2. Motion for Protective Order

i. If one party asks for a motion to compel discovery the party from whom information is
sought can preemptively ask the court to relieve it of or limit its obligations to produce
the information (motion for protective order)
ii. any party from whom discovery is sought, whether or not a party, may move the court for
a protective order

Philips v. G.M. 2002 (9th Cir.) p.153

Rule of Law: Rule 26: Information is discoverable if it will facilitate settlement
Facts: Motion to breach a confidentiality agreement from previous lawsuit
Holding: Highly intrusive discovery requests require a balancing under Rule 26(c). Evidence that
is not admissible is still discoverable if it might lead to admissible evidence.

Gonsalves v. City of New Bedford 1996 (D. Mass.) p.157

Rule of law: Lawyer cannot knowingly present false testimony, and sanctions are appropriate
under Rule 26(g)
Facts: Victim is beaten to death by police while in jail and family sues the familys attorney
purposefully did not disclose victims HIV status, could have changed damage award so
should have been turned over
Holding: Attorney sanctioned $15,000 for withholding damages that could have changed the
outcome, lawyer cannot knowingly present false testimony (affidavits that knew werent

**Discovery Summary:
No more Perry Mason surprises. Goal is to have as many facts shared as possible.

Privileges and limited work-product and expert witness protections try to decrease free rider

III. Resolution without Trial

A. Case Management
1. Main objectives
a. Central Theme: Extent to which judges must move from traditional adversarial presiding role
to a more inquisitorial role
b. Standard of Review: Management decisions reviewed by court of appeals purely for abuse of
discretion Appeals Courts are generally reluctant to overturn case management decisions by
lower courts.
c. Elements
a. deadlines for phases of litigation
b. active judicial encouragement of settlement
c. judicial exploration of different means to end litigation
i. early neutral evaluation: experts give realistic view of damages
ii. nonbinding arbitration
iii. summary jury trial: summarize case to mock jury, they come up w/ damage estimate
all designed to give parties more realistic view of outcome, encourage settlement

2. Rules
FRCP 16: Pretrial Conferences, Scheduling, Management
a. Requirements
i. Judge must establish a scheduling order for completing various pretrial tasks
ii. Court must conduct a final pretrial conference shortly before trial
iii. Parties who fail to comply with Rule 16 are subject to sanction
b. Objectives: expedite action, not waste time, encourage settlement

Notes: Judge can not force parties to settle, but can make influence felt
(not want an angry Judge Bane Judge in Verdict)
May be in the parties interests to settle, even if lawyers not want to settle.
Settlement brought up by judge takes away stigma of bringing it up first

FRCP 42: Consolidation; Separate Trials

a. Allows judge to structure trial in way he thinks is appropriate
b. 42(b): judges may bifurcate or combine trials
FRCP 48:

3. Case Management case

Scheduling Order

Tower Ventures v. City of Westfield 1st Circuit, 2002 (p.176)

Rule of law: Rule 16(f) makes sanctions possible for Rule 16(b) failure to adhere to scheduling.
Dismissal is an appropriate sanction for violation of scheduling order.
Facts: Judge dismissed s case for failure to adhere to pretrial schedule. Venture repeatedly
missed deadlines.
Holding: Court dismisses the case for failure to meet scheduling order deadlines. Ventures
argument that the other side didnt object to the delay ignored the courts independent
interest in administering its docket.
Note: This sanction was unusual the most common sanction is to refuse to extend the deadline.

Basic Management Techniques

Acuna v. Brown & Root, Inc. 5th Circuit, 2000 (p. 182)

Rule of law: Must comply substantively with scheduling orders. (Not just time) (Rule 16)
Facts: Mass tort for uranium poisoning. Judges used pretrial scheduling order because of size of
case. Plaintiff failed to meet pre-discovery requirements even after judge granted
Holding: Case dismissed for insufficient affidavits the affidavits failed to meet the requirements
of the scheduling order.
Note: Management decisions reviewed by court of appeals purely for abuse of discretion

Ricutti v. NewYork Transit Authority NY, 1992 (p.184)

Rule of law: Court may order separate trial to do any of the following: 1. Avoid prejudice, 2.
Provide convenience, 2. Expedite proceedings/be economical.
Facts: brings suit against beating/attack by police and brings suit against both individual officers
and municipality. Municipality wants trials bifurcated .
Holding: Potential benefits of splitting trials outweigh the potential costs. Concludes that interests
of economy, convenience and justice support separate trials.

Final Pre-trial Order

R.M.R. v. Muscogee County School District 11th Circuit, 1999 (p. 189)
Rule of law: It is within the judges discretion to not allow a last-minute witness. 16(d)
requirements for plan for trial and admission of evidence
Facts: Mother and son sue school for molestation of boy by teacher. Last-minute witness for
plaintiff arrives when defense is halfway through their case.
Holding: Witness may not appear. The importance of the testimony doesnt outweigh the
prejudice to the defense of having the witness testify.
Note: Factors in decision to exclude witness: 1. Importance of testimony, 2. Reason for failure to
disclose the witness earlier, 3. Prejudice to opposing party if witness allowed to testify.

B. Alternative Dispute Resolution (ADR)

1. Main objectives
a. 3rd party to decide dispute.
i. Arbitrator = binding power
ii.mediator = facilitate
b. often faster, cheaper, more private
c. choice of arbitrator can ensure experience in subject matter

2. Role of courts in arbitration

a. Court-annexed ADR is almost always not binding, although it is often mandatory
b. courts treat arbitration agreements like K
c. not evaluate the merits of the K, just compliance
d. Challenges to arbitration then depend on K law.
e. Often courts limited to seeing that both parties agreed to arbitration and that established
procedures were followed

3. Problems w/arbitration
a. Employees entering into pre-dispute arbitration agreement may not comprehend actions
b. Freedom of K/will v. unknowingly signing away due process rights
c. Law trumps in some areas ex. child custody
d. If binding arbitration, no chance for appeal in court system

4. ADR case
In re Atlantic Pipe Corp. 1st Circuit, 2002 (207)
Rule of law: Courts can mandate mediation in appropriate cases.
Facts: Huge case with multiple parties, court mandated mediation, Atlantic Pipe objected.
Mandamus granted by Court of Appeals is mandatory mediation appropriate?

Holding: District court has inherent power to mandate mediation (if not in local statutes) in
appropriate cases - this was an appropriate case but court failed to set reasonable
limitations on duration and mediators fees.
Note: Mandamus: appellate review of a district courts non-final order; Hay: mandamus is when
you go to appellate court before decision to get the trial judge not to abuse power.

C. Settlements
1. Main Objectives
a. Main form of settling suits is private settlement with or without lawyers
b. Settle cases before trial can save $ and time, encouraged by courts
i. A trial is a failed settlement.
c. But courts not accept settlements at all costs, not want to harm 3rd parties
i. Ex. buying the silence of parties can hurt future litigants

2. Possible Settlements
a. prefiling agreement not to sue
b. seek voluntary dismissal, agree not to refile suit: saves $ and publicity, if breaks
settlement, can use settlement as affirmative defense
c. consent to dismissal w/prejudice and agree not to refile suit: a judgement on the merits, so
applies to claim preclusion (if break, go to state court b/c. a K matter)

3. Key Factors in Deciding to Settle

a. Litigations cost
b. What other side is demanding
c. What hell have to pay in court if he loses
d. When parties are in rough agreement about the outcome of the case they are more likely to
e. Avoid risk of going to trial estimated chances of losing at trial
f. Avoid adverse publicity

4. Ways Courts Encourage Settlement

a. Rule 68
b. Neutral mediation
c. Making it costly to go to trial

5. Barriers to Settlement
a. Differing assessments of risk/chances of winning at trial

6. Rules
FRCP 16: Allows judges to convene settlement conferences
FRCP 68: Offer of Judgment
Penalizes plaintiff for not accepting settlement
If makes settlement offer and doesnt accept AND wins less at trial than proposed
settlement, must pay costs incurred by after offer

Settlement Cases
1. Marek v. Chesney US, 1985 (199)
Rule of law: Rule 68 not incompatible with federal fee-shifting statutes for civil rights litigation
Facts: Civil Rights case where police killed s son. Ordinarily, when wins civil rights case
pays attorney fees. Here, made settlement offer and refused but then won less than
proposed settlement at trial.
Holding: has to pay s post-offer costs and HIS OWN attorney fees not responsible for
s attorney fees as he would have been if had not refused settlement.

Note: Brennan in dissent fear the majority opinion will discourage civil rights litigation

D. Summary Judgment (SJ)

1. Main objectives
Suit is filed, discovery is over, settlement fails, still not need to go to trial.
If side with the burden of production can not meet that standard and establish that there is
a material question of fact, then the judge can issue summary judgement as a matter of
law for the other side.
Purpose: to prevent futility of conducting a trial when one side has no case. Only need
trials to resolve disputes of fact. If no dispute, no trial. (SJ comes before the trial,
directed verdict (judgment notwithstanding the verdict) comes after, both considered
judgement as a matter of law)
Process: judge examines documents (affidavits, depositions, transcripts)
o Pleadings do not count bec. they are not a sworn statement
View evidence of non-moving party in best light.
Very difficult for party with burden of proof to get summary judgment b/c credibility of
witnesses and evidence decision for jury to make (must present evidence whose
authenticity is indisputable)
Judge does not determine credibility of the witness, thats up to the jury (see Hays hypos
from 10.25.05)
o One drug addicted blind mans affidavit v. 100 saints still an issue of fact

Strength of evidence
Weak Balanced (Triable issue) Strong
has Burden of Production to Burden of production is met. Trial s evidence so strong that receive
move to middle to get to a trial. decided by prepond-erance of the SJ before trial (rare)
gets summary judgement evidence: 51% has Burden of Persuasion to
(tie goes to ) move to middle to get to a trial.

Quote from Hay: Dont get hung up on the terms. Understand when a judge can take a trial/verdict away from a

2. Summary Judgment Rule: FRCP 56

a. SJ if no genuine issue as to any material fact
b. If multi-claims, can receive SJ for all, some or none.
c. Adverse party cannot just say no. Minimum, need affidavit w/specific facts showing there
is a genuine issue for trial.

3. Summary Judgment Case

Celotex Corp. v. Catrett 1986 (US) p. 616
Rule of law: Rule 56 grants summary judgement against a party who fails to establish a genuine
issue for trial. The party w/burden of proof bears burden at summary judgment.
Facts: sued for death of husband due to exposure to asbestos manufactured by . move for
summary judgment because no evidence that decedent was exposed to s asbestos in
statutory period. moved for summary judgment.
Holding: To win summary judgment (moving party) not need to produce evidence to disprove
s case, just need to show that cant meet her burden of proof at trial. Scintilla of
evidence is not enough. If have burden, must show enough evidence that jury could
reasonably return verdict for burdened side. Remand to lower court to determine if met
the burden.
Notes: concurring and dissenting opinions think moving party needs to be more active in
discrediting nonmoving partys evidence.

E. Standard/Burden of Proof

1. Standard of Proof
a. Degree of belief that the decision-maker must have to make a ruling
b. Common standards of proof
i. Preponderance of the evidence < clear and convincing < beyond a reasonable doubt
ii. In civil cases, the standard of proof is preponderance of the evidence
2. Burden of Proof
a. Says which party is responsible for proving the case
i. Usually has the burden of proof in civil cases

3. Allocation of Decision-Making Authority

a. 7th Amendment right to a jury trial in civil cases
b. Whether a judge can take a case away from the jury (judgment as matter of law) depends
crucially on who bears the burden of proof.

IV. Trial
A. Introduction
Just getting to trial does not guarantee that a jury will hear a case.
If seeking monetary damages, traditionally a case of law, right to a jury trial
If seeking injunction or declaratory judgement, traditionally a case of equity, no 7th amendment right
to a jury.
Even in jury cases, the judge can take verdict away.

B. Judgment as a Matter of Law (JMOL)/Directed Verdict:

At close of evidence, judge determines case so one sided that reasonable jury could only decide
one way, so judge makes the call.
usually moves after presents case
usually moves at the close of all evidence.
Judges reluctant to issue directed verdicts
If overturned on appeal, need a whole new trial. (expensive/embarrassing)
Waste of jurys time
Judge looks like the bad guy, let jury take the blame

C. JNOV/Judgment not withstanding the verdict/ Renewed JMOL:

After jury returns verdict, and evidence does not support the verdict, judge can override it.
needs to have made motion at end of all evidence to preserve right for j.n.o.v.
If overturned on appeal, no new trial, just reinstate the original verdict. (cheaper)
Standard of review for judge taking case away from jury (summary judgment, jmol, etc.)
is in theory de novo (but in practice certain amount of deference given to lower court)

*Criteria for SJ, DV, JNOV all the same: no legally sufficient evidence for a reasonable jury to find
for the party against whom the motion is made.

D. Rules
FRCP 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional
a. Judgment as Matter of Law: No legally sufficient evidentiary basis for a reasonable jury to find
for a party on an issue, court may grant a motion for judgement as a matter of law; motion may be
made at any time before submission of case to the jury.
b. Renewed Motion: May also grant motion after jury returns a verdict that does not match evidence;
must be filed within 10 days of entry of judgment; same standard as j.m.o.l.; moving party must
have made a motion for j.m.o.l. at the close of evidence
o See Rule 50(b) for judges options
(Granting of motions is discretionary)

E. Cases
Judgment as a Matter of Law
1. Reeves v. Sanders Plumbing Projects 2000, U.S. (p. 259)
Rule of law: Rule 50, must draw all reasonable inferences in favor of the non-moving party,
credibility should be left up to the jury, weight of the evidence (is there enough? Which
side it supports?) is a question for the jury
Facts: suing for discrimination on basis of age
Holding: Court ruled that case boiled down to a question of who you believe, which should be left
up to the jury, Court of Appeals erred in substituting its judgment concerning weight of
evidence for the jurys
Note: Burden of proof shifts in discrimination cases: plaintiff must establish prima facie case of
discrimination, then must respond with non-discriminatory reasons for actions, must
show why those reasons are not legitimate.

V. New Trial
A. Introduction
Judge gets a verdict, not like it, but cant grant j.n.o.v. because facts exist on both sides, so it
is not impossible that a reasonable jury could come to verdict.
Decision to grant a new trial is usually reviewed for abuse of discretion because original judge
the one who saw the witnesses/evidence
B. Common law grounds to issue a new trial
1. flawed procedure:
mistake by judges: wrong evidence ruling, improper jury instructions
o jurors: visit accident scene, read papers
o lawyers: prejudicial comments
2. flawed verdicts: most common: against the weight of the evidence
if against weight of evidence strong indication that jury misunderstood
cant issue j.n.o.v. because some evidence exists.
Relief awarded by jury doesnt make sense (should have awarded x and gave 20x
instead) suggests didnt understand
Can order an entire new trial (jury so biased need a whole new one) or just a new
trial for the damages phase. Or can remit (reduce damages award strictly speaking,
usually give winner choice between reduced damages or whole new trial)

C. Rules: FRCP 59: New Trials

Rule doesnt state why a new trial can be granted, rather for any of the reasons for which new trials
have heretofore been granted, so rely on common law examples above. Must be filed within 10 days.
Some courts have ruled that make a 50(a) motion at close of evidence if motion for new trial
is premised on verdict being against the weight of the evidence
Can file both 50(a) and 59(a) (not either/or)
New trial may be granted even if substantial evidence supporting jurys verdict

D. Cases
1. Weisgram v. Marley 2000, U.S. (p. 274)
Rule of law: When district court erroneously admits testimony during trial, court of appeals has
authority to direct entry of judgment as matter of law for losing party without remanding
to district court for consideration of whether a new trial should be granted.
Facts: Appellate court ruled that s expert witness was improperly admitted and that without such
testimony s motion for judgment as a matter of law should have been granted.
Question is whether the court of appeals can enter a jnov or if it should have
automatically remanded the case to the district judge for a ruling on whether a new trial
should be granted.
Holding: was on notice of alleged deficiency of its experts testimony because of s objections
during trial. had opportunity to present its best evidence and prove its case.

Authority of courts of appeals to direct the entry of judgment as a matter of law extends
to cases in which, on excision of testimony erroneously admitted, there remains
insufficient evidence to support the jurys verdict.

E. Damages
Judge can order a new trial for damages, or get winner to agree to reduced damages (remit)
Fuzzy standard: shock the conscience.
Problem: if damages way off, jury may have been off on negligence/liability verdict.
Remittitur: reduction of award
New trial risks losing money already in pocket (pending appeals)
Additur: increasing award.
Called unconstitutional bec. judge picks a # beyond jurys decision.
Critics call this a distinction w/out meaning

I. Relief from Judgment

A. Introduction
Judge has the power to set aside judgments, usually within one year (some exceptions)
Trade-off between substantive justice and closure
After one year (with exceptions) judgment is final and thats it

B. Rules: FRCP 60: Relief from Judgment or Order

1. Clerical Mistakes
2. Court may relieve a party from final judgment if file within one year for:
i. Mistake, surprise, excusable neglect
1. Whether non-defaulting party will be prejudiced
2. Whether defaulting party has meritorious defense
3. Whether culpable conduct led to default
ii. Newly discovered evidence
iii. Fraud
3. Court may relieve a party even if file after one year:
i. Judgment is void
ii. Judgment has been satisfied
1. Usually injunctive relief
iii. Any other reason justifying relief

C. Cases
1. Ackerman v. US 1950, U.S. (284)
Rule of law: Rule 60(b)
Facts: failed to filed motion to set aside judgment canceling certificate of naturalization within
one year period, claiming reason for delay was excusable and should fall under Rule 60(b)(6)
which allows for appeals after one year deadline has passed.
Holding: Neither the circumstances nor the excuses of were sufficient to set aside judgment
under Rule 60(b)(6) after one year had passed.
Notes: Dissent argued that Rule 60(b)(6) should be applied more liberally in this case and
wherever fairness requires it.

II. Appeals
A. Appealability
Final Judgment Rule: Cant appeal until final judgment has been entered
a. Efficiency: courts only want to see you once
b. Grievances have a way of going away, especially if party wins case at trial or if case settles
2 Exceptions:
a. Petition for Mandamus: If judge has abused his power can request a write of mandamus from the
court of appeals ordering trial judge to stop what hes doing these are for issues where it would

be too late to appeal after final judgment (i.e. the damage would already be done) (Ex: order to
disclose state secrets in discovery)
b. Interlocutory Appeal: Judge can certify for an interlocutory review if hes unsure about a ruling
and resolution by the appeals court would bring about a speedy resolution of the case

B. Standards of Appellate Review

De Novo (non-discretionary): review of pure questions of law, whether or not judge applied correct
legal standard
Ex: Is a promise enforceable? (matter of law)
Reasons: Uniformity across district judges (so that law is the same in every jurisdiction)
Abuse of Discretion: Deferential will only review to see if trial judge was clearly erroneous
(matter of fact) or abused discretion (management decisions)
Ex: Was a promise made? (matter of fact)
Reason: Judge saw actual evidence and is in a better position to judge questions of fact


I. Claim Preclusion (Res Judicata)

A. Introduction
Definition: The general rule of res judicata is that a final judgment, rendered on the merits, constitutes an
absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same
claim or demand. (once a claim has been litigated to final judgment cant be brought again)
Everyone gets one bite at the apple, but cant keep bobbing back for more.
Generally between the same parties

B. Main Issues
1. Policy arguments served by claim preclusion:
a. Judicial efficiency: Sensible allocation of scarce judicial resources by avoiding re-litigation of
matters that a court has already determined. No reason to assume 2nd court will be more right than
b. Party Autonomy: Protection of autonomy (particularly that of s) by preventing parties from using
the repeated re-litigation the same claim as a means of harassment.
c. Institutional values: Promotion of consistent administration of justice. Allows parties to rely upon
result and move on.

2. Policy arguments against claim preclusion

a. Judicial efficiency: Encourages parties to bring all claims, even weak ones that not want to bring,
for fear of losing the right forever.
Claim-splitting: if lose first claim generally wont bother to bring second
b. Party Autonomy: should be able to chose which claims are brought where. If want to settle some
claims in state court and some in federal court, should be able to do so. is the master of the claim.
c. Institutional values: Not want to deny meritorious claims on a technicality.

3. Definitions of same claim

a. 1st Restatement: same cause of action, same elements, same facts (narrow)
b. 2nd Restatement: same transaction, same common core of operative facts (broader)
c. Rationale for switch: more efficient to bring all claims at once
Fair to to deal w/all claims at once from same transaction
Thus, not just preclude same claims, but also precludes claims that should have been raised, but
were not.
d. Federal courts: need to look at the preclusion law of the state that rendered 1st decision. (From
Article IVs full faith and credit clause. States need to respect laws and decisions of other states.

public policy generally considered exception to this, if law of first state is so repugnant to public
policy of second state then dont have to enforce.)

4. Counterclaims
Failure to join counterclaims also subject to claim preclusion.
Counterclaims are precluded through two principal mechanisms.
a. FRCP 13(a): when a fails, at the time of pleading, to raise a counterclaim arising out of the same
transaction as the main action, the claim is waived and may not be asserted subsequently.
b. Additionally, certain counterclaims, even when not covered by Rule 13(a), fall nonetheless into a
narrowly defined class of common law compulsory counterclaims.
c. If through reasonable measures a party should have known about a claim then shouldnt be able to
sue on it later
d. Arguments for: practical when same evidence/witnesses should all be brought together, can always
split later if going to be confusing (bifurcation) or use special verdict (to later find out if jury was
e. Arguments against: in more complex cases juries could get confused, evidence for one claim could
prejudice against another,

5. Other Notes
Privity: a defendant in privity is a party so closely connected to the suit that courts treat him as if he were
named, thereby binding him to the original judgment. Indicates that relationship is close enough
to named party to include within scope issue/claim preclusion.
Mutuality of Estoppel: Claim preclusion usually operates b/t those who were parties to both suits. The
general rule is that you cant take advantage of an earlier judgment unless you are also bound by

6. Final Judgement on the Merits

Just as same parties is not literally read, allowing for privity, final judgement is not completely literal.
The question of adequate representation for purposes of claim preclusion also arises in the context
of determining whether a given decision constitutes a final judgment on the merits. Strong
presumption in favor of giving individuals a fair opportunity to adjudicate their claims, and against
binding parties who have been inadequately represented.

C. Claim preclusion cases

1. Rush v. City of Maple Heights 1958 (Ohio) p. 312

Rule of law: All claims arising from a single wrong should be brought together in a single action
Facts: was hurt in an accident allegedly caused by . sued for damage to property and won,
litigated claim to final judgment. later filed suit for personal injuries arising from same
accident, objected on grounds of claim preclusion.
Holding: When a person suffers multiple injuries arising from same wrongful act, only a single cause of
action arises and claims must be litigated together.

**Preclusion is not a set of fixed rules; there is always room for argument about whether preclusion
should apply or not.

II. Issue Preclusion (Collateral estoppel)

A. Introduction
Definition: When an issue of fact or law is actually litigated and necessarily determined by a valid and
final judgement and the determination is essential to the judgement, the determination is conclusive in a
subsequent action between the parties, whether on the same or different claim. (Restatements 2nd 27, p.
Generally between different (but related) parties (but could be same)

B. Dual Purpose

1. protecting litigants from the burden of re-litigating an identical issue with the same party or his privy
2. promoting judicial economy by preventing needless litigation

C. Main Issues
1. Actually litigated and determined
Due process requires parties have full opportunity to fully litigate each issue. Sometimes a general
verdict will leave open the question of whether a given issue has been decided. In such cases, issue
preclusion is not available to the parties.

2. Issue essential to the judgment

a. If multiple grounds explicitly invoked in support of a judgment, any one of the findings could
provide independent justification for the judgment; thus, none can really be termed essential to the
(Courts divided over whether to grant preclusive effect to such alternative findings.)
b. View of the second Restatement of Judgments: when alternative grounds for judgment exists, none
should be precluded from subsequent litigation. This Restatement favors liberal use of issue
preclusion: any other compelling circumstance
Criticism: leads to unnecessarily duplicative trials.

3. Mutuality of Issue Preclusion

Traditionally, parties not invoke issue preclusion unless both parties bound by original judgment. So,
issue preclusion not used by or against individuals who were neither parties nor privies to the original
suit. Mutuality has substantially eroded over time (Restatements 2nd nonmutual issue preclusion).
(Note that this is an anomaly: issue preclusion can be invoked by nonparties but claim preclusion

Multi-adversary claim: a party who loses the contest of an issue against one party is ordinarily
precluded from re-litigating it against any other adversary. ( already had her day in court)

Two notable exceptions to the doctrine.

a. Defensive non-mutual preclusion:

Non-party uses judgment in first suit to prevent in second suit from re-litigating issue. (new
stopping original )
Precludes a from re-litigating identical issues by merely switching adversaries.
Argument: could simply have joined X as a in the original suit and had full opportunity
to litigate issue 1st time. Preclusion therefore available to the second . (incentive to join all
potential defendants in the first action if possiblt)
Ex. Quarterback A unsuccessfully sues referee B for a blown call. Issue preclusion may be
successfully invoked by C (another referee from the game) as a defense to the same action
against him by A. Hays Flutie hypothetical (1).

b. Offensive non-mutual preclusion:

New uses judgment in first suit to prevent original from re-litigating issue. (new stopping old
When is seeking to estop from re-litigating the issues which previously litigated and lost
against another party.
Courts reluctant:
not want to give incentives to wait and see rather than join 1st suit (encourages more
Unfair to - if first action is for small/nominal damages may have no incentive to vigorously
defend self (esp. if future suits not foreseeable)
Unfair to when procedural opportunities available in one action and not another.
If 1st wins, nonparty could sue and gain all the benefits without the costs.

The Supreme Court has thus given trial courts broad discretion to determine when offensive
preclusion is appropriate.
Factors for allowing offensive non-mutual IP:
i. had full chance to litigate 1st time (not case of small damage)
ii. could foresee multiple suits (perhaps should have joined other s)
iii. not easily join 1st suit (so not guilty of wait and see or opportunism)
Ex. Quarterback A, instead of suing, publicly accuses the referees of blowing the call. Referee B
sues successfully for libel. If the trial court approves (i.e., does not believe that Referee C is
being opportunistic), C may use issue preclusion to establish liability on the part of A in a
subsequent suit. Hays Flutie hypothetical (2)

D. Issue Preclusion Cases

1. Parklane Hosiery Co. v. Shore 1979 (US) p. 321

Rule of law: Trial judge has broad discretion to permit the use of offensive non-mutual issue preclusion
to establish part of s case if not unfair to .
Facts: SEC filed case against Parklane for violation fed laws, won with declaratory judgment (no jury).
Shore () brought suit v. Parklane for securities violation. filed for partial summary judgment
on issues already decided in SEC bench trial (offensive issue preclusion). (argued Parklane had
already had its opportunity to defend itself and lost, so should get benefit of that first trial)
Finding: Not a denial of due process because had full opportunity to defend against charge the first
time. Future suits were easily foreseeable and in 2nd case not able to join in first action (not able
to waltz in to SEC HQ and join a case, and it is not likely that would have taken the SEC case
Note: court ruled that wasnt violation of s 7th Amendment even though not given chance to litigate in
front of jury
Dissent: Unfair to apply offensive collateral estoppel where party estopped has not had opportunity to
have facts of case determined by a jury.

E. Hays Hated Checklist for Issue Preclusion

1. 1st case ended in final judgment on the merits
2. Same issue litigated and determined in 1st case (no default judgments like in claim preclusion)
3. Same issue essential to the judgment
4. Only held against party or privy in 1st case (due process, need to be represented)
5. Only used by party in 1st case (mutuality), unless jurisdiction allows non-mutual issue preclusion
(offensive and defensive).

III. Joinder

A. Introduction
1. Historically: joinder of parties and claims was very difficult because the case was governed entirely by
pleadings and restrictive rules surrounding the forms of action.
2. FRCP: liberal joinder, i.e. all claims/parties connected to the dispute can be heard in one proceeding.
Core idea is that claims arising out of the same transaction/occurrence should be brought together for
purposes of efficiency.
i. s can sue together
ii. s can sue as many s as they want/bring as many claims as they want
iii. s can counter-sue s or bring cross-claims against each other
iv. s can bring third party complaints against parties didnt sue for purposes of indemnification
or contribution
v. people can intervene in the proceeding if they will be affected by the outcome and if their
interests are not well represented
vi. court can order that additional s/s be brought in if interests will be affected by the suit
3. Remember: joinder rules are trumped by rules of jurisdiction

B. Main Issues

1. Policy arguments
For: consolidation may increase efficiency by conserving scarce judicial resources. Also, joinder may
increase party autonomy by allowing them to bring claims as they see fit.
Against: bringing many claims together may dilute their individual force, and subject s to the tyranny
of numbers. Harm efficiency and autonomy because people who would not otherwise have been
sued get drawn into litigation.

C. Joinder of claims/Rules
1. Joinder of claims by s: FRCP 18, a can join as many claims as he wishes against a single --
even those arising out of unrelated transactions -- subject to jurisdictional limitations. Although
Rule 18 permits such joinder, it does not compel it. However, there are strong incentives to join
claims -- for example, claim preclusion may require the to join related claims arising out of the
same incident.
2. Joinder of Claims by : FRCP 8(e)(2)
Allows to assert as many defenses as he/she has to s claims.
3. Joinder of counterclaims by s: FRCP 13
a. permissive counterclaims. can join as many permissive counterclaims, even those arising out
of unrelated transactions, as he wishes, subject to jurisdictional limitations.
b. compulsory counterclaims: must join all claims arising out of the same transaction as that
underlying the s suit. Today, claim preclusion renders the class of compulsory counterclaims
essentially irrelevant/redundant, but in 1938 claim preclusion had a much narrower scope.
4. Jurisdictional limitations: The only limitation upon joinder of claims and counterclaims is
jurisdictional. Because courts have discretion to grant supplemental jurisdiction, however, the
bottom line is really whether it makes sense to hear the cases together. Evaluate the relative
interests of the state and fed courts. Example: (NY) sues a (NY) in federal court on a federal
claim. The tries to join a state claim. Since there is no diversity of citizenship, there can be
jurisdiction over the state claim only if there is supplemental jurisdiction. Compulsory claims
automatically receive supplemental jurisdiction, but permissive claims require an independent basis
for federal jurisdiction.

D. Joinder of Claims Case:

Painter v. Harvey 1988 (4th Cir) p. 348
Rule of law: Where the same evidence will support or refute both the claim and counterclaim, the
counterclaim will almost always be compulsory.
Facts: claims police officer assaulted and raped her and violated her constitutional rights.
counterclaims for libel and slander. Suit is brought in federal court. Issue for court is whether
libel claim is permissive or compulsory?
Holding: Counterclaim is compulsory and there is supplemental jurisdiction because the s
counterclaim is logically related to (i.e., arises out of the same facts as) the s original claim.
Since it is a compulsory counterclaim, no independent basis of federal jurisdiction is required
(claim is granted supplemental jurisdiction). Test for whether or not claim compulsory should
be based on both evidentiary similarity and logical relationship.

E. Joinder of Parties
a. Permissive Joinder of Parties: FRCP 20
Liberal joinder of s or s if the claims by or against the party whose joinder is contemplated
present (1) common questions of fact or law, and arise out of (2) the same transactions as the claims
of the parties litigating the matter.
b. Necessary and indispensable parties: FRCP 19
Situations where court must bring in outsiders and join as parties even if the parties dont want to.
This is rarely revoked.
c. 3rd Party Joinder by : FRCP 14
may join other s (i.e., for purposes of indemnification) may also join other s through the use
of counterclaims as long as the counterclaims arise out of the same transaction as that underlying the

original suit. Much more limiting than rule 20 for s. Joinder of a third party by is called an
d. Intervention: FRCP 24:
A party outside the litigation, but w/strong interest to the property or transaction at issue, may choose
to intervene. The decision is that partys alone -- if she chooses not to intervene then she will not
face claim/issue preclusion.
e. Jurisdictional limitations to 3rd party joinder Supplemental jurisdiction presents a potential problem
for third party joinder in cases where diversity is the only grounds for jurisdiction. Joinder can
NEVER break complete diversity requirement.

F. Joinder of Parties Cases

1. Alexander v. Fulton County, Georgia 2000 (11th Cir.) p. 357
Rule of law: Application of Rule 20 is reviewed for abuse of discretion by trial judge. Two criteria for
Rule 20 are 1) right to relief arising out of same transaction, 2) some common question of law or
fact arising from claims of all parties.
Facts: 18 s alleged racial discrimination, claims all heard together and 15 won at trial. appealed,
arguing that claims should have been heard separately. argued that trial judge abused his
discretion by failing to sever claims under Rule 42.
Holding: Common core of allegations, substantial overlap of the claims, and logical interconnection of
allegations meant that judge did not abuse his discretion in allowing claims to be brought together.
Two majors concerns are prejudice and confusion, and court said these were adequately
considered/addressed by trial judge.
Notes: standard of review is abuse of discretion.

2. Grutter v. Bollinger 1999 (6th Cir.) p.383

Rule of law: Must establish four elements in order to be entitled to intervene as a matter of right: 1.
motion to intervene was timely, 2. Have a substantial legal interest in subject matter of case, 3.
Ability to protect that interest may be impaired in absence of intervention, and 4. Parties already
before the court would not adequately represent those interests.
Facts: Proposed defendant-interveners were denied intervention under 24(a) and (b) in suit against U of
Michigan for use of race in considering admission applications. District court ruled that failed to
show that interests would not be adequately represented by the University (existing defendant).
Holding: Substantial interest does not need to a strong enough interest to start own lawsuit; minimal
burden to show impairment; only need to show that the existing parties wont make all the same
arguments as petitioner the potential interveners in this case met all these requirements.
Notes: review for denial/granting intervention is de novo.

IV. Class Actions

A. Introduction
Definition: The FRCP 23 class action: suit may be brought by or against large numbers of individuals whose
interests are sufficiently related so that it is more efficient to adjudicate their rights or liabilities in a single
action rather than a series of suits. A class action is binding even on parties who did not participate in the
original suit. In ordinary joinder, by contrast, parties are not bound unless they choose to join the original
litigation. Rule 23 is undoubtedly the most controversial FRCP.


III. Introduction

Key issue: whether a state or federal court possesses power to adjudicate given persons in court.

Court needs to have power over individual or property
1. in personam jurisdiction: power over individuals because of presence, domicile, minimum
2. in rem jurisdiction: power over individual because of attached property in dispute (rem =
3. quasi in rem jurisdiction: power over individual because of attached property unrelated to
Due Process Clause: outer limit of personal jurisdiction, state can choose as much or as little personal
jurisdiction as want
On exam: first evaluate states long-arm statute before moving onto Constitutional issues.

IV. Foundations

A. Main Principles/Rules
Traditional basis for PJ: 1. presence when served
2. agent
3. domicile in state
4. consent (actual, implied, waived)

Notes: Three limits on territorial reach of state courts

1. Power: sovereign rights of states over people and property w/in borders
2. Consent: individual liberty (should be able to choose laws live under) and democratic
governance (people of state should have control over internal matters)
3. Notice: proper notice and fairness of service so opportunity to defend self in court

Post-Pennoyer-pre-International Shoe world: courts stretched consent and presence to determine

personal jurisdiction. Conducting business or having an agent in a state amounted to consenting to
the states jurisdiction. Business activity also amounted to presence. But with increase in
transportation and corporations, need a new framework.

Problem: rules not work so well in a mobile society, so Pennoyer slowly erodes yet never explicitly

B. Cases
Pennoyer v. Neff 1877 (US) p. 73: state has jurisdiction over people and property within state
Finding: 2 key principles
in personam jurisdiction only when personally served process w/in the state (once have been
served in state doesnt matter if leave, jurisdiction already established)
in rem jurisdiction
1. true in rem: cases in which property that is attached is the subject of the litigation
2. quasi in rem: property that is attached is not subject of litigation but will be used to satisfy
14th Amendment Due Process clause applied to service of process and jurisdiction

C. Challenging Personal Jurisdiction: 4 options

1. Direct attack: challenge on appeal
2. Collateral attack: challenge results in a sister state trial court (jurisdiction issues are only time can
mount a collateral attack on a judgment)
3. Special appearance: some states allow to show up just to contest PJ w/out subjecting self to
presence grab.
4. Limited appearance: liability limited to value of attached rem property. (After Shaffer which
eliminates quasi in rem, not much of a role.)

D. Constitutional Requirement of Notice

Under Pennoyer, in personam require personal service
In rem and quasi in rem required publication in local paper/posted notice

(After Mullane, notice must be reasonably calculated to reach party)

V. Modern Formulations and Contemporary Problems

A. Introduction
Personal jurisdiction changed as society changed. Pennoyer established consent and presence as two
key aspect for PJ, yet corporations have no physical presence or will.
Subsequent cases will develop idea of a beings activity in a state leading towards concept of
consenting to the laws of the state, and a states jurisdiction over people outside of its borders
under the states interests and sovereign right to protect its citizens.
These concepts stretch Pennoyer w/out overruling it.

Now 2 strands of arguments:

1. Individual rights/personal liberty
2. Division of power between states in a federal system

Notes: general jurisdiction: PJ for any claim. From domicile (for people) or state of
incorporation or substantial business activity (for corporation) in a state.
Specific jurisdiction: applies when have minimum contact, but below substantial
standard. PJ for specific claim/activities related to the forum, but not unrelated claim.
Reciprocity: voluntary reciprocal exchange b/t and state: you live/have minimum
contact in state and benefit from laws and protection, you consent to obey to laws of

B. Rules/Principles

Court has personal jurisdiction over nonconsenting nonresidents if

Pennoyer: is present and served in state.

In rem jurisdiction if attach property and publish notice in paper.
For personal jurisdiction, presence and service are sufficient and necessary.

International Shoe: the person has contacts with the state sufficient to make jurisdiction consistent
with traditional notions of fair play and substantial justice. 14th Amend.
Contact systematic and continuous.
Evaluate the nature and quality of contact.

Shaffer: All assertions of state-court jurisdiction must be evaluated according to standards of Intl
No more quasi in rem, presence of property alone not enough.
There must be a contact between the lawsuit and the forum state.
So now Intl Shoe has expanded personal jurisdiction and Shaffer has contracted it (no longer
subject to jurisdiction just because have property in the state.)

WWVW: s conduct and connection w/forum state are such that he should reasonably anticipate
being haled into court there.
Mere forseeability that product can enter stream of commerce and end up in forum state not
enough, because unilateral act of third party brought car there.

Asahi: minimum contacts are not outweighed by burden of defending self in distant land, lack of state
interest, and overall failing the reasonableness test for fair play and substantial justice.

Burnham: personally served within state, even if in state for unrelated matters.

Mullane: notice is reasonably calculated to reach intended parties.

Lack of personal notice not a problem if no reasonable way to contact. Publication in paper not
enough if address is known.
Under Pennoyer, publication was good enough for in rem jurisdiction.

Note: Burger King (p.439-440): if you reach out beyond one state and create a continuing relationship
and obligation with citizens of another state, you are subject to regulations and sanctions in the other
state for the consequences of those activities.

C. Cases

Minimum Contact
1. International Shoe v. Washington 1945 (US) p. 409
Rule of law: For personal jurisdiction, due process requires that a person needs to have minimum
contact related to cause of action w/state so that the suit does not offend traditional
notions of fair play and substantial justice.
Facts: Int. Shoe incorporated in DE, HQ in MO. WA wants unemployment tax, but Int. Shoe says
no business in state, just a few salesmen. But salesman paid by commission, takes orders
but not K or $.
Holding: claims no property and no agents in WA, so no personal jurisdiction.
Quality and nature of minimum contact must be evaluated.
Activities of Int. Shoe: continuous and systematic (not a casual or irregular presence)
and availed itself of the benefits and protections of the laws of WA. Thus, Int. Shoe
defending self in WA does not violate 14th amendment protections for fair play and
substantial justice.

2. Shaffer v. Heitner 1977 (US) p. 414

Rule of law: Quasi in rem jurisdiction is dead. Jurisdiction can not be founded on property alone,
but needs to be accompanied by minimum contact related to cause of action. (If property
is the cause of action, then minimum contact likely satisfied)
Facts: brought suit against Greyhound directors () in DE, HQ in DE, over events in Oregon.
attach the directors stock in DE, although stocks not physically in DE.
Holding: Apply Int. Shoe standards to in rem jurisdiction in addition to in personam. If you cant
get jurisdiction over me, then my property wont bring me in either. Must have minimum
contacts, examine nature and quality of contact, and not violate traditional notions of fair
play and substantial justice.
Dissent: Directors knew Greyhound incorporated in DE, DE laws that benefit Greyhound benefit
shareholding directors. Connection b/t GH and directors is voluntary, so at least a
minimum contact, although not the best contact. And DE has state interest to protect
its corporations from bad directors.

3. World Wide Volkswagen v. Woodson 1980 (US) p. 427

Rule of law: minimum contact still applies, but so does fair play and substantial justice.
Foreseeability of product entering stream of commerce by unilateral action of third party
not fair, because not reasonably anticipate being haled into court, nor does
purposefully avail himself of the privileges and protections of the state.
Facts: Family bought Audi in NY, moved to AZ, car blew up in OK. sue dealer, regional
distributor, importer and manufacturer. Latter two not challenge jurisdiction, but first two
Holding: Even though forum state has interest, is convenient for litigation due to witnesses and
cause of action, and not suffer inconvenience in forum state, still use Due Process
clause to deny jurisdiction. Majority says no minimum contact. As per forseeability, just
because something is in the realm of the foreseeable does not mean it is subject to
jurisdiction. Stream of commerce not anticipated to go to OK, (although certainly
capable of it). Unilateral action of not enough to bring into jurisdiction.

Dissent: ITS A CAR!! Of course it could go to OK. If put a mobile product in stream of
commerce, it will go places. More emphasis should be placed on interests of forum state
and lack of inconvenience for to be tried in forum state. Minimum contact should
have equal weight with states interests, not trump it.
Notes: want suit in big award county OK. Need at least one NY to destroy complete
Questions: If OK is too far, what about Illinois, or DC, or PA?

4. Asahi Metal Industry Co. v. Superior Court 1987 (US) p. 441

Rule of law: 8 justices ruled that jurisdiction would be unreasonable, even if minimum contacts
were made, which is debatable.
Facts: Couple on motorcycle, tire blowout and wife died. sued Cheng Shin(Taiwan), which
cross-claimed Asahi (Japan) as 3rd party for making tube valve. All settled except Cheng
Shin and Asahi. Asahi sold valves to another company which made tires, and knew that
some of those tires ended up in CA. Filed motion to dismiss for lack of personal
Finding: no majority opinion, but most rule unreasonable to hale (Asahi) to CA.
According to WWVW, foreseeability that valves end up in CA not enough for minimum
contact. not send it to CA, but went through Taiwan.
Brennan side: If its in the stream of commerce and gets to X, there is minimum contact.
OConnor side: Need more than entering stream, need to purposefully and actively direct
product to forum state (advertising, solicitation etc.)
Both sides agree, need a reasonableness test examining factors such as:
1. burden on
2. interests of forum state
3. s interest in relief
4. most efficient forum for resolution
Notes: WWVW was a downstream case, for it dealt w/ distributors of product
Asahi is upstream, for it deals w/ manufacturing phase several times removed from the
consumer (valve to tire to wheel to motorcycle to importer to dealer to customer)

8. Zippo Manufacturing v. Zippo Dot Com 1997 (PA) 450

Rule of Law: Test is nature and quality of contacts with forum state and not quantity of contacts,
state interests and concerns outweigh burden to of litigating in forum state.
Facts: Does PA long-arm statute reach through cyberspace? Internet domain name dispute, is
resident of PA and is resident of CA. Contact with forum state almost exclusively over
Internet, has approx. 3,000 PA subscribers and contracts with two service providers in
western PA.
Holding: Likelihood that personal jurisdiction is can be constitutionally exercised is directly
proportional to the nature and quality of commercial activity that an entity conducts over
the Internet. Here, PAs interest in the dispute and the nature of s contact with the state
outweigh any burden on create by litigating in PA.

General Jurisdiction
9. Bird v. Parson 2002 (6th Cir.) p. 458
Rule of law: Specific jurisdiction applies if the cause of action is related to to contacts with the
forum state, even if does not arise from those contacts.
Facts: (Ohio) sued (WA Internet Co.) for trademark infringement, violation and
cybersquatting. Trial court dismissed for lack of personal jurisdiction. Question is
whether the fact that approx. 4,000 (1/50th of total sales) Ohio residents registered domain
names with the is enough to meet minimal contact requirement.
Holding: failed to show that had a continuous and systematic presence in Ohio for general
jurisdiction (maintenance of a passive website where consumers registrants initiate
contact is not enough). However, court ruled that both s claims and s contact with
the forum state directly stem from s operation of its website.

**If you take advantage of opportunities afforded by virtual commerce, reasonably anticipate that these
activities will subject you to suit in targeted locales. (p. 463)

Presence in Forum State

10. Burnham v. Superior Court 1990 (US) p. 150
Rule of law: If personally served in forum state, personal jurisdiction exists even if brief contact
in state is unrelated to the cause of action.
Facts: Couple married in WV, move to NJ, separate. sued in NJ but never served process.
move to CA, visit kids and served for divorce in CA. contests personal jurisdiction
because lacking minimum contact related to action.
Finding: All 9 agree that jurisdiction exists.
Scalias 4 say presence is enough; Pennoyer is alive and well. Standard of minimum
contact/fair play and substantial justice used as an analogous substitute for actual physical
Brennans 4 say need min. contact, and it was met. (3 days in state so availed self of
protections, also kids related to divorce.)

11. Carnival Cruise Lines v. Shute 1991 (US) p.477
Rule of Law: Acceptance of a forum selection clause in a contract is consent to personal
jurisdiction in that forum for actions arising from the contract.
Facts: (Shutes - WA) were passengers on s cruise (FL), slipped and fell, filed for suit in WA
federal court, filed for summary judgment because forum-selection clause on
passengers ticket required the suit to be brought in Florida.
Holding: has special interest in limiting for a where it may be sued, and because was on notice
of forum clause, has not met heavy burden of proof to set aside clause on grounds of

Requirement of Notice
12. Mullane v. Central Hanover Bank 1950 (US) p. 483
Rule of law: To meet Due Process, notice must be given in manner reasonably most likely to
reach intended parties. Notice by publication is only supplemental and not sufficient if
addresses are known.
Facts: pooled small trust funds, state court checks it periodically. Once court approves,
beneficiaries claims are barred. gave notice in a newspaper. objected because no
one would see it, some beneficiaries addresses were known, and some beneficiaries lived
out of state.
Holding: Notice can be any means reasonably designed to apprise interested parties of action and
allow them opportunity to be heard. Process which is mere gesture is no process.
Posting of real property still ok (as under Pennoyer) if likely to put party on notice.
Publication ok if location unknown. But if have addresses, denial of due process if not
mail notice.
Notes: Jurisdiction and notice are separate issues, and both must be satisfied.

D. Model for analyzing constitutional issue of personal jurisdiction

1. Traditional basis of Pennoyer?
a. presence
b. agent
c. domicile
d. consent
2. Minimum Contact?
Likely to be a stream of commerce type issue
a. Relevant contact b/t and forum

i. Purposeful availment? Arising from s actions by reaching out to the forum state
ex. using roads, advertising, taking advantage of privileges and protections. Cannot
result from the unilateral action of a third party.
ii. Foreseeability? Not examine whether it is foreseeable that product would end up in
forum, but rather, is it foreseeable that could be haled into a forum court?
b. Fairness/reasonableness test
i. Relatedness? Does the claim arise from contact w/forum? If yes, easier to get PJ for
specific jurisdiction. If a lot of contact, may get general jurisdiction.
ii. Convenience? always says it is not easy to travel. Burden must be so grave that it
would severely disadvantage in trial. Very hard to meet this standard. Due Process
not looking for the best forum, just a constitutional one.
iii. State interest? Especially strong when a state is protecting the welfare of its citizens.
3. Notice (separate issue, but must be met along with jurisdiction)
b. Meaning of due process is giving people the change to be heard must make a reasonable
effort to notify them (Mullane)
c. Most states have a rule of procedure which specifies how someone is to be notified (Fed Rule
4. Unclear issues/divided court:
Stream of commerce cases (Asahi)
Presence for process/related to contact (Burnham)

VI. Self Imposed Restraints on Jurisdiction: Long Arm Statutes and Venue

A. Statutory Tests
Test Tip: First determine whether statute allows for personal jurisdiction before moving on to
constitutional issues!
Every state has a statute for personal jurisdiction. Federal courts abide by the long arm statute of the
given state.
Long Arm statutes: 2 types
1. Some cover full extent of the Due Process ex. CA
Exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the
United States
2. Limited laundry list
Ex. subject to special jurisdiction, transacted business, committed a tort, domicile, property
Reasons to limit: costs of court, efficiency, conserve jud. resources
Watch for statutory language:
Ex. any business v. substantial business
Ex. commits a tort in forum, need to determine when tort committed. If a product
liability case, was tort at site of negligent manufacturing, or at the location of the
accident? Examine both scenarios on test.

E. Venue
1. Basic rules of venue:
Venue rules come from statutes, not Constitution primarily concerned with convenience,
protecting from unfair/inconvenient places for trial chosen by
States have own laws.

2. Transfer/Change of venue
Can transfer to court w/in same system assuming proper venue and personal jurisdiction.
So state courts can only transfer w/in same state, while feds can transfer state to state.
Transfer at discretion of courts, often in the interests of efficiency or excessive publicity.
May be done at motion of parties or independently by court.

1. Forum Non Conveniens (common law doctrine)

Allow a proper court (w/personal jurisdiction and venue) to dismiss a case because better (more
convenient) court exists in another system.
Need to have strong showing of other courts overwhelming interest.
Need to dismiss and not transfer bec. not w/in same systems
May make dismissal conditional: ex. need to waive SoL or choice of law options.

Piper Aircraft v. Reyno 1981 (US) 497

Rule of Law: Courts, even though they have jurisdiction, may dismiss cases on the grounds of
forum non conveniens if they believe the case should be tried somewhere else.
Facts: Plane mfr (Piper) from PA, Prop mfr from Ohio, plane crash in Scotland an all the victims
were from Scotland. (Reyno) is adminstatrix of estate in CA (meant to est. jurisdiction
there). Piper removes to federal court, and has transferred to PA federal court. files
motion to dismiss under forum non conveniens.
Holding: Court dismisses the case because it belongs in Scotland because connections there are
overwhelming (where all the evidence is, where the victims are from, etc.)


I. The Big Picture

A. Basics: only two kinds of cases

Federal courts created by Article III, but jurisdiction limited by Congress:
1. Federal Question cases arising under some federal law
2. Diversity
If it doesnt fit here, no subject matter jurisdiction, go to state court
Can raise a subject matter jurisdiction question anytime, even for the 1st time on appeal (unlike
personal jurisdiction which is waived if not contested at the start).
Subject matter jurisdiction defects cannot be waived (unlike personal jurisdiction, cant create
subject matter jurisdiction through party agreement)

4 Main Areas
1. Federal question: look out for unrelated federal law in complaint. Need a well pleaded
complaint 1331
2. Diversity: complete diversity rule prevents from naming stooge to get to federal court.
3. Multiparty/multiclaim disputes
a. multiparty: if no federal question, need complete diversity
b. multiclaim: if same core of operative facts, can have supplemental jur. 1367
4. Removal: if fed. issue, can remove from state to fed court 1441

B. Themes:
Implications of the federal structure.
Federal courts are courts of limited jurisdiction, state courts have general jurisdiction (with some
Presumption against federal jurisdiction, especially with respect to diversity.
Federal courts are wary of exercising jurisdiction when it is not rightfully theirs.
Conception of federal courts as an elite judiciary.
Procedural justice: what is it and how do we get there from here?

C. Categories of arguments:
Fairness to the parties
Institutional values
State-Federal relationship questions (allocation of power, competing interests)
Procedural justice
Policy, policy, policy

D. Sources of Subject Matter Jurisdiction
Article III of the Constitution
Title 28 of the U.S. Code: 1331 Federal Question Jurisdiction
1332 Diversity Jurisdiction
1367 Supplemental Jurisdiction
1441 Removal

Article III creates potential for broader jurisdiction in federal courts than Congress has seen fit to give.
Article III simply gives Congress the authority, not the obligation, to create lower federal courts.
Remember Hays diagram:

Scope of authority that Congress has explicitly given

federal courts

Constitutional limits of authority of federal courts

under Article III

E. Constitutional Limits of Fed. Judiciary Power

Article III: Creates the federal judiciary.
1 requires creation of Supreme Court but lower courts created only as Congress may establish.
2 enumerates and limits the cases over which federal courts may have authority:
cases arising under the Constitution, federal law or treaties
cases involving ambassadors
all admiralty and maritime cases
cases in which the US is a party
cases between two or more states
cases between citizens of diverse states
cases between citizens of same state involving land grant of another state
cases between a state or a citizen thereof and a foreign state or citizen
also some procedural requirements: trials by jury (except in impeachment cases), trials shall
be held where crimes have been committed
3 definition of treason.

Fundamental Problem of Allocation of Power Between Federal and State Courts

General arguments supporting creation of various types of federal question jurisdiction:

need for uniform interpretation of federal laws
protect federal governments right to conduct foreign policy
protect diverse parties from bias of state courts
promote interstate commerce
create a forum that is insulated from political pressure

Pragmatic arguments for getting into federal court:

shorter waiting time to get to trial
may have history of rulings more favorable to your side
in theory, judges feel less political pressure
federal judges often believed to be more competent
often believed to be more hospitable to cases based on federal law

Federal courts jurisdiction should be interpreted narrowly

If Congress wanted to create jurisdiction it would have
o In ambiguous cases should keep in state court
Giving federal courts more cases means less time for real federal questions
Federal judges are accountable to no one

II. Federal Question Jurisdiction

A. Source/Rules
Article III: over all cases arising under the federal constitution, federal law or treaties.
28 U.S.C. 1331: over all claims arising under the federal constitution, federal law or treaties. Court has
interpreted 1331 to include well-pleaded complaint rule. (More limited)
Creates concurrent, not exclusive, jurisdiction. With rare exceptions (eg. patent & copyright cases in
1338, admiralty & maritime in 1333), a claim that can be brought in federal court can also be
brought in state court.

B. Main Issue
Interpretation of arising under. How much of a federal ingredient is enough to confer federal question
Classic cases: sues on fed. cause of action.
Hard cases: 1. Federal element, but fed. law does not create the cause of action.
2. Federal defenses ex. s claim anticipates s answer has federal defense
Article III and 1331 have different interpretations of arising under
Article III cases: can arise under fed law if fed law not direct cause of action if 1. Federal
ingredient or 2. Federal law specifically grants jurisdiction.

1331 cases: all must arise under federal law by cause of action (narrower)
thus, federal law creates cause of action

ex. If Congress wants federal housing cases to go to federal court, need to pass a law that
authorizes it. Fact that federal law creates federal housing not good enough, because that law did
not create the cause of action, such as unlawful eviction.

Analysis of the borderline cases: what is the federal interest in the case? If federal courts have more
expertise in issue, or needed for effective enforcement of federal law, then likely to end up in
federal court.

*Private right of action: individual people can sue, if none, means that just federal prosecutors can
sue under it.

C. Cases:

Well-pleaded complaint Rule

Louisville RR v. Mottley 1908 (US) p. 511

Rule of law: stating an anticipated federal defense in the complaint does not satisfy federal question.
Facts: Mottleys had a lifetime pass for the railroad as part of a settlement of accident. Congress banned all
free passes because of corruption in the railroad lobbies. sues for breach of K, tried to get to
federal court because knew that would claim the federal law as a defense.
Holding: well pleaded complaint rule: federal aspect of complaint must be part of substantive claim, and
not an anticipatory defense. A federal court only has jurisdiction if the case is one in which the
federal question is raised by the s claim in a well-pleaded complaint. (s claim must be a federal
one). A well-pleaded complaint only talks about elements of the claim and doesnt raise extra
defenses, etc.

Note: Neither party raised the issue of subject matter jurisdiction courts can do this on their own. This
case means that a case raising a federal defense but with no federal claim cannot be brought into
federal district court, even if both parties agree that the federal question is the only disputed issue
in the case.
*Federal Declaratory Judgment Act: well-pleaded complaint rule in reverse cant sue for
declaratory relief in federal court if wouldnt have had jurisdiction to bring in suit there

Sufficiency of the Federal Question

Merrell Dow Pharmaceuticals Inc. v. Thompson 1986 (US) 517

Rule of Law: A complaint alleging a violation of federal statute as an element of a state cause of action is
not sufficient to establish federal jurisdiction.
Facts: are suing under common-law (state) actions of negligence, liability, etc. One count claimed a
violation of federal Food, Drug, and Cosmetic Act. Question is whether presence of a federal
issue in a state-created cause of action is sufficient to create federal jurisdiction. Both plaintiffs
agree that there is no federal cause of action.
Holding: COA ruled against stating that violation of FDCA was only one available criteria for negligence
and that right to relief did not depend necessarily on substantial question of federal law. Supreme
Court affirmed: it would flout congressional intent to provide a private federal remedy for the
violation of a federal statute.
Note: focus is whether embedded federal question is substantial here rules that it is not.
Dissent: There should be federal jurisdiction whenever a federal question is embedded in a state cause of

III. Diversity Jurisdiction

A. Source/Rules
1. Article III, sec. 2: controversies between citizens of different states/foreign subjects
2. 1332:
a. Controversies b/t citizens of different states and when value $75,000
b. A corporation a citizen of two states: incorporated and principal place of business.
c. An Executor is a citizen of the state of the decedent.
d. DC, Puerto Rico and territories are viewed as separate states for diversity.
3. Must have complete diversity of citizenship If a citizen from A sues both B and another citizen
of A no diversity

B. Defining citizenship
a. Regular people: citizen of state of domicile, not necessarily residence. You keep same citizenship
until a new one is established by intent. Children keep cit. of parents until act to set a new one up.
If in city for 10 years bec. of school and jobs, but not intend to make it permanent, still a citizen of
home state.
b. Corporations: dual citizenship in place of incorporation & principal place of business.
c. Nonincorporated organizations: ex. unions, churches, clubs etc. considered citizens in every state
where there is a member. So Teamsters would never be able to file a diversity suit in fed court.
d. Class actions: use citizenship of class representative

C. Main issues
a. historical rationale: to protect against prejudices in other states when states rights reigned and to
promote a unified national economy. Bias not make sense ex. even if sue NYer in NH fed court,
get a judge likely from NH with a jury made up of NHers.
b. complete diversity rule: not in Constitution, but set up under Marshall and not changed. Can not
have citizens of the same state on opposite sides of the v., used to limit fed. jurisdiction, (ex. no
supplemental jurisdiction if destroy compete diversity)

c. domestic relations exception: Supreme Court not allow domestic cases into fed. court through
diversity jurisdiction. From GB and ecclesiastical courts, still true for divorce, alimony and child
custody. Exceptions allowed for child and sex abuse. Rationale: state courts have specialized
family courts to deal w/issues.
d. Amount in controversy: $75K, not get bogged down by small potatoes. Aggregation of claims?
General rule is that each in a diversity case must usually meet the minimum amount in
1 w/several unrelated claims v. 1 Yes
2 s related claims Yes, if one res (common undivided interest or
single indivisible harm) (p.542)
2 s unrelated claims No
1 v. 2 - Depends, yes if are commonly liable, otherwise no (p.542)

IV. Supplemental Jurisdiction (a.k.a. Pendent Jurisdiction)

A. Intro
Supplemental jurisdiction allows a claim w/out federal question or diversity into federal court
if it is related to the same case or controversy of a case already in federal court.
Key phrases: common nucleus of operative fact
same transaction or occurrence
Ancillary jurisdiction: once a federal court has jurisdiction over the main controversy, it also
had jurisdiction to resolve closely connected claims that defendants and third parties needed
to assert in order to protect their interests completely (ex: compulsory claims, cross-claims,
claims by intervenors of right, etc.) refers to matters that can only come in by later addition
of claims or parties
Pendant: matters that are, or at least could be, stated in the original complaint
Pendant-party claims: claims asserted by additional plaintiffs or against additional
defendants (no clear rule as to whether federal jurisdiction for these claims)

B. Rules 1367
a. Allow supplemental jurisdiction over related claims (same case or controversy) under Article III.
b. Not allow supp. jur. for 1332 diversity cases if destroy complete diversity no jurisdiction
under claims by against persons made party by Rules 14, 19, 20 or 24 or over claims by
persons joined by Rule 19, or intervenors under Rule 24 when would be inconsistent with
1332. (Owen v. Kroeger: cant add parties
c. Discretionary power, can decline if
i. new state issue
ii. state issue is main claim
iii. later dismiss all fed claims
iv. other compelling reasons!!!
Note: includes claims involving joinder or intervention of additional parties (rules of supplemental
jurisdiction applies)
d. generally federal question cases

Owen v. Kroger (p. 549) 1978 (US)

Rule of law: Cant add parties through supplemental jurisdiction that destroy 1332 diversity. No
naming of new s who could not have been party in original suit
Facts: Iowa sues Nebraska ; impleads another Iowa , who Iowa tries to sue.
Holding: Court says this is not allowed. Not able to sue whom could not have been named as
party in original suit. Discourages crafty s who would sue who would foreseeably bring in
other s from same state as
Note: 1367(b) codifies Kroger

C. Main issues:
a. Rationale/policy: conservation of judicial resources, fairness to parties, efficiency, convenience,
contrary policy discourage many federal claims being brought in federal courts.
b. Origin: From broad interpretation of case in cases arising under const. Case includes
cluster of claims resulting from same transaction or occurrence.
c. Criteria: where substantial federal issue and:
1) relationship b/t state and federal claim shows entire action comprises one constitutional
2) claims derive from same set of operational facts
3) would naturally try them together if claims are considered without regard to state or
federal character.
d. Discretion: not a s right.

D. Cases:
1. United Mine Workers v Gibbs, 1966 (US) p. 233
Rule of law: When s state and federal claims arise from common nucleus of operative fact, fed
courts have power to hear all claims
Facts: a super at a mine, prevented from working by strikers, lost K, sued workers on fed and
state claim.
Finding: Called pendent jurisdiction because both state and fed claims hang on same facts.

2. Stromberg Metal Works, Inc. v. Press Mechanical 1996 (7th Cir.) p. 552
Rule of law: Supplemental jurisdiction is OK if claims are closely related
Facts: 2 file suit against single . One meets jurisdictional minimum but the other does not.
Under 1337 does pendant-party jurisdiction allow the court to hear a claim by a party
whose loss does not meet the jurisdictional minimum?
Holding: Claims arose out of same construction problem so could be brought together

3. Meritcare v. St. Paul Mercury Insurance, 1999 (3rd Cir.) p. 554

Rule of law: No aggregation of claim amounts for purposes of supplemental jurisdiction ( 1337
not meant to expand diversity jurisdiction, look to legislative intent)
Facts: s sought to recovery $ from collapsed roof from insurance company, denied claim,
brought suit in state court, removed on diversity grounds, One met minimum, other
Holding: No supplemental jurisdiction,
Notes: Court explicitly rejected Stromberg.

V. Removal

A. Intro
can remove case from state court to federal court if satisfy personal jurisdiction and subject
matter jurisdiction (therefore, 1331 and 1332 govern removal cases)
1. one way move, cannot remove from fed to state court
fed judge can remand to state court, but not s choice
2. only can remove, gets to make the 1st forum choice, and thats it
3. all s must agree
4. removal limited to federal district court encompassing state court
ex. if in Brooklyn, NY state court, can only remove to NY district court.
5. 2 exceptions to subject matter jurisdiction rule in diversity cases
a. no removal if any of s from forum state
b. 1 year after filing

B. Rules: 1441

Need personal jurisdiction and subject matter jurisdiction
If multiclaim case w/state and fed issues, district courts have discretion to remove all, none, or just the
federal part.

1446(b): Procedure for removal

Notice of removal must be filed by within 30 days
A diversity case may not be removed more than 1 year after commencement of the action.

C. Rationale:
a. Choice of forum should not be left solely to . has as much right to opt for federal forum if have
subject matter jurisdiction
b. Eliminates opportunity for to insulate self from a federal forum by adding a creative state claim.
c. Again, in diversity cases if is sued in home state, there is no option for removal.

D. Cases
1. Ritchey v, Upjohn Drug Co. 1998 (9th Cir.) p. 559
Rule of law: The retains the right to remove for 30 days after notification, even if diversity case
and past one year.
Facts: files suit in state court (already lost once in federal court), wants to keep in state court so
adds 2 sham s to destroy diversity. waited one year to notify so that wouldnt be
able to remove, claimed that should be able to remove within 30 days even though
diversity case because never notified of proceedings. Court must square the 30 day
allowance with the 1 year limit.
Holding: Rule 1446(b) does not limit defendants in diversity cases from filing for removal even if
it is more than one year after the commencement of the action.
Note: Remember: courts that begin with jurisdiction cant lose it, but new courts can gain

2. Lanford v. Prince Georges County 2001 (District Court Maryland) p. 565

Rule of law: Under 1441(c) a who is named in a separate and independent state claim need
to not consent to removal of the entire action when the claims against him are not subject
to federal jurisdiction.
Facts: is the passenger in a car accident. After the accident he is arrested and claims abuse by
police and violation civil rights. Filed claims against driver of the car (state claim) and
police officers (federal claim). Police filed for removal, but driver did not join in.
Holding: Court decides to split the claims and removes the federal claims against the police
officers and county to federal court, and leaves the claims against the driver in state court.
Ruled that under 1441(c) a who is named only in a separate and independent state law
claim need not remove or consent to removal. Court ruled that there was no common
nucleus of facts between state and federal claims, and so it was appropriate to remove
the federal claims and remand the state claims against the driver.

E. Hypos:

1. (Alabama) v. (Alabama) in state court.

a. federal 1st Amendment claim
b. state law breach of contract claim

Removable? YES: there is federal question jurisdiction w/supplemental jurisdiction on b.

2. (Ala.) v. (Ala.)
a. federal 1st Amendment claim
b. state 1st Amendment claim

Removable? YES: analytically parallel to A except the state and federal claims are virtually
identical. Under 1441(c), whenever claim a is separate and independent from claim b,
court has discretion on removal of claim b. Conversely, if claim b is not separate and
independent from claim a, court must remove claim b if claim a is removed.

3. (Ala.) v. (Ala.)
a. federal 1st Amendment claim
b. state tort law claim (e.g. slip and fall)

Removal? Only on claim a. Federal court could not assert supplemental jurisdiction over
claim b so it can not be removed along with claim a.

4. (NY) v. (IL)
a. state law claim

Removable? If filed in NY state court, the case can be removed because of diverse parties. If
the case is filed in IL state court, the case can not be removed under the one exception to
1441(c). But, NY could have originally filed in Illinois federal court. Personal
jurisdiction restricts which federal courts can hear the case.

5. (NY) v. 1 (IL) & 2 (NY)

a. state claim

Removable? NO: under the complete diversity rule. Note: Here the IL defendant has no
recourse against potential bias in NY courts.

6. (NY) v. 1 (IL)
1 (IL) v. 2 (NY) so (NY) tries to bring suit against 2 (NY)
a. state claim

Removable? Federal court has jurisdiction over each suit separately. However, under 1367s
rule against pendent parties, federal courts cant hear case if it includes (NY) v. 2
(NY). NB: may be able to defeat diversity jurisdiction by suing 2, which reflects a
bias against diversity. WorldWide Volkswagen provides an example of this kind of
strategic joinder.

VI. The Erie Problem

A. Intro
Erie doctrine only applies to diversity cases.
Question: Whether federal or state law applies.
Black letter rule: fed court applies state substantive law
Fed court may apply fed procedural law
Problem: no clear division b/w substantive and procedural, so need a better standard
Brief History
Swift v. Tyson: in cases where no controlling state statute in diversity actions, federal courts
should use general common law
Erie: No federal common law, state law includes common law, follow state sub and fed pro
Guaranty Trust: No clear diff b/t sub and pro, if outcome determinative, follow state
Byrd: Strong federal interest use fed law
Hanna: FRCP indicates strong fed interest, so use it
If no FRCP, look at twin aims of Erie: 1. forum shopping 2. Fairness

B. Case: Erie RR v. Tompkins 1938 (US) p. 251

Rule of law: 1789 Rules Decision Act (1652) applies state laws to civil diversity cases. State law
includes both statutory and common law.
Facts: (PA) hit by open door of train as walk along RR tracks. Sue (NY) in NY fed. which has a
lower standard of negligence than PA, where accident occurred. Question: apply PA law or
federal common law?
Holding: There is no general common law, courts dont have the power to create one, only Congress
can. (Overrule Swift)
Note: Equal protection problem: similar parties w/ same charges treated diff. depending on where the
suit is brought

C. Motivating Factors of Erie

1. Constitutional allocation of power
Two const. issues
a. Congress cant specify state tort law
b. Courts cant specify negligence standards, BUT Congress can
2. Judicial Administrative Concerns
If not know which law (state or fed) will be applied, unfair because
a. equal protection discrimination
b. uncertainty of applicable law, not know legal obligations before accident
c. opportunism for forum shopping
3. Result: Twin aims of Erie:
1. prevent forum shopping by seeking fed court to avoid state law.
2. prevent unfair administration of laws, keep due process

4. Conflict of law / Choice of law rules:
Each state determines which states laws will be followed in a diversity suit.
Traditionally, used state where cause of action arose.
Apply COL rule of forum state to determine which states law applies
2nd Restatement: apply law of state w/greatest interest
more flexibility, less formality (Klaxon case)
If state law is unclear, federal judge can ask state court for clarity or make best guess. If
guess, fed ruling is the law until state court or legislature fixes it.

D. Eries Legacy

1. Guaranty Trust v. York 1945 (US) p. 262

Rule of law: outcome determinative test If the choice between state and federal law is outcome
determinative then the state law should be applied.
Facts: sue for breach of trust, NY law applies. According to NY law, statue of limitations has
expired. claims that statute of limitations is procedural, and according to Erie, federal
procedural rules should govern.
Holding: Court says that statute of limitations is substantive because it protects from stale
claims and frees him from litigation. Justice Frankfurter concludes that Eries
substance/procedural distinctions are artificial. Goal of Erie is to have same result
whether in state court or federal court. So set up outcome determinative test, and apply
state law if determine the outcome of a diversity case.
Notes: example of non-outcome determinative: size of paper need to file w/court

2. Byrd v. Blue Ridge 1958 (US) p. 267

Rule of law: strong federal interest/policy such as 7th Amendment right to trial can prevail over
state law.
Facts: Key issue is whether Byrd gets a jury trial or a bench ruling state law says judge.

Finding: The federal court does not need to listen to state law when determining distribution of
power between judge and jury, federal courts are free to fashion their own rules when
allocating decision-making powers because too important to be subject to vagaries of
state laws.

3. Hanna v. Plumer 1965 (US) p. 270

Rule of law: If there is a federal rule on point and its valid it trumps state rules.
Facts: Car accident, and was served process according to FRCP 14(d)(1) (leave it at house
w/adult) but state law requires personal service. says this is outcome determinative,
and should be dismissed along Guaranty Trust, and not an overwhelming federal interest
like in Byrd (service of process not like trial by jury)
Finding: Justice Warren identified Twin Aims of Erie
1. prevent forum shopping
2. equal administration of law, where similar s treated differently depending on
whether same action is filed in state or federal court.
If an issue comes up that does not affect one of these two aims, follow fed procedural
Here, fact that this is a FEDERAL Rule of Civ Pro indicates a strong federal interest.
Created in 1938 by the USSC under the authority of the Rules Enabling Act in 1934.
Notes: Harlans concurrence: simpler, ask do the rules affect peoples lives?
If yes, follow state law (RR negligence) if no follow fed law (service)

E. Misc.
Because state law is to be applied in diversity cases, federal courts do their best to follow state
court decisions and state interpretations of state laws here the federal courts are bound by
state precedence, not federal precedence
Certification: enables federal court to essentially write the state supreme court a letter asking
how it would decide a particular question of state law. The state supreme court will hear
arguments from both sides and then notify the federal court how it would rule (this is optional
for fed court)
once in federal courts cant appeal to state courts
F. Hays Foolproof method for analyzing Erie problems

Step 1: Power from Congress

Is a federal rule required/authorized by Congress?
If No, go to step 2
If Yes: Is the rule w/in the authority of Congress?
i.e. in Article I, sec. 8 or Article III to establish and regulate courts
If rule is constitutional, apply if
If rule is unconstitutional, dont (duh)
FRCPs, since written by USSC, have not been determined to be unconst.

Step 2: Power from courts ability to govern itself

Do the federal courts implicitly have the power to promulgate rule by virtue of grant of diversity
Apply Guaranty Trust/Byrd/Hanna analysis
Is it outcome determinative? If yes, apply state law
Is there a strong federal interest? If yes, feds win
Are the twin aims of Erie violated? (forum shopping/equal admin)
If no, can use fed law.
*If relates to internal housekeeping/mechanisms of the court use Byrd to disregard state
law, even if no FRCP on point

General Issues for analysis of any case:

1. Subject matter jurisdiction
2. Personal Jurisdiction
3. Fed or state law
4. If state law, which state?

Example: MA v MA and PA MA is travel agent

Suit for breach of K in FL PA is s business partner

PA allows punitive damages in K cases

MA and FL do not allow punitive damages for K
brings suit in PA federal court

1. SMJ: not complete diversity bec. of MA on both sides

Need a federal claim to get in court
2. PJ: PA no problem, bec. a resident
MA: need to know more, bec. not from state, dont know where served,
minimum contact related to cause of action etc.
But if not contest PJ, it is waived.
3. If no PJ, MA is kicked out, lets assume trial is held and is guilty,
Which law to apply for damages?
Assuming no federal statute, look at twin aims of Erie
Prevention of vertical forum shopping favors using state law
Fairness in adjudication favors using state law
Klaxon says use whatever state law PA would use
PA would apply FL law bec. that is where action occurred
So no punitive damages
(And if no federal issue even after MA kicked out, would have been dismissed
bec. not have minimum amount in controversy)