Personal Jurisdiction Subject Matter Jurisdiction Notice Proper?

Complaint Complete and Filed

• Specific • Diversity (1332) • Reasonably Calculated to Correctly?
• General • Federal Question (1331) inform • FRCP 8(a) (Twombly-Iqbal)
• Tag • Supplemental (1367) • Copy of Complaint and • Short and plain
• Consent • Removal (1441) Summons statement
• Property • Venue (1391) • Rule 4 • Entitled to relief
• Rule 5 • Demand for relief

Answer/MTD/Counter-Cross-
Claims
• Rule 7 (Answers)
• Rule 8 (preclusion and other
affirmative defenses)
• Rule 12 (Defenses)
• Rule 13
(Compulsory/Permissive)
Joinder (Claims and Parties) Discovery Rules Disposition Without Trial
• Compulsory/Permissive Claims
(Rule 13)
• Rule 26 (b-c) • Issue of material fact (Rule 56)
• 30, 31, 33, 34, 35, 36, 45 • Burden-shifting, Celotex Standard
• Derivative Liability (Rule 14)
• Motion for Default Judgment (Rule
• Required Parties (Rule 19) • Evidence and Sanctions (Rule
55)
• Permissive Parties (Rule 20) 37) • Judgment Offers (Rule 68)
• Misjoinder (Rule 21)
• Involuntary/Voluntary Dismissals
• Interpleader (Rule 22)
(Rule 41)
• Class Actions (Rule 23)
• Intervention (Rule 24)

Motions at Trial Post-Trial Motions Preclusion – file under Rule 8 as

• Judgment as a Matter of Law
(Rule 50(a) and (b))
• New Trial (Rule 59)
• Additur (not allowed),
Remittitur (allowed)
• Jury Instructions (Rule 51)
• Renewed Motion for JML an affirmative defense
(Rule 50(b)) • Issue Preclusion
• Seizing Persons/Property • Claim Preclusion
(Rule 64)
• Injunctions & Restraining
Orders (Rule 65)
• Appellate Review (1291-92)
 SPECIFIC PERSONAL JURISDICTION
PURPOSEFUL CONTACTS
• Availed itself of the privileges and benefits of conducting • Activity Directed to the Forum State
business in the forum state • Effects of the action were directed into/knew they
• Stream of Commerce “Plus” would be felt in the forum state
• Developed product in the state • Argument: “Sell in the US” means purposeful contacts
• Marketed the product in the state w/every state
• Developed with state-specific requirements • Property
• Contracts “Plus” • International Shoe Standard
• Prior negotiations and contemplated future benefits in • i.e. if claim is related to the property
the state
• Payments sent there
• Training in the state
• Negotiations conducted and agreement signed in the
state

ARISING OUT OF OR RELATED TO THE CLAIM
• Plaintiff’s claim arises out of Defendant’s forum-related activities
• Plavix “plus” – contacts between Defendant and forum state must be
related to Plaintiff’s claim
REASONABLENESS – must be reasonable as to not offend
traditional notions of fair play and substantial justice
• Burden on the Defendant
• Forum state interest in adjudicating the claim
• Plaintiff’s interest in relief
• Interests of the “several states”
• Interest of foreign nations (if any)
 GENERAL PERSONAL JURISDICTION

CITIZENS CORPORATIONS
State has general jurisdiction over all its residents 1. State of incorporation
(citizens). One is a resident if it is a domiciliary 2. Principal Place of Business
3. “Essentially at Home”

DOMICILIARY – defaults to last place where factors

existed
1. Physical presence
2. Intent to remain indefinitely

TAG “TRANSIENT” JURISDICTION CONSENT

• Split as to whether businesses can be brought in 1. Valid forum-selection clause, says “will” not
this way. Depends on the jurisdiction and judge. “may”
• No tag if brought under 2. No motion to dismiss = waived right and
• Fraud consented
• Duress
• The result of a subpoena
 SUBJECT-MATTER JURISDICTION - DIVERSITY
Citizens & Aliens (except Citizens w/Aliens (if aliens on
Citizens of Different States when alien is permanent both sides then citizens
resident of the same state) needed on both sides)

• At the time of filing | Burden of proof on party claiming diversity, can be

challenged at any time | Determined by State of Domicile
• Businesses: PPB/State of Incorporation (no “essentially at home” here)
• Unincorporated entities: citizenship of all its members
• Stateless persons do not qualify
• Permanent residents citizenship = state of domicile
Section 1332 has all you could
need or want

AMOUNT IN CONTROVERSY
• Must exceed $75,000 including compensatory & punitive damages
• Punitive damages claimed cannot be excessive relative to
compensatory to meet amount in controversy
• Aggregation to meet amount in controversy OK if:
• Single plaintiff with multiple claims (related or unrelated) against a
single defendant
• Multiple plaintiffs with a single undivided interest (usually property or
would-be class action with insufficient numbers)
• Aggregation NOT ok when:
• Single plaintiff aggregating claims against multiple defendants
• Multiple plaintiffs aggregating unrelated and insufficient claims
 SUPPLEMENTAL JURISDICTION - 1367
A State claim can piggyback on
a federal question claim (or a
claim brought in diversity) if
there is a “common nucleus of
operative fact” between the
two claims
1367(c) – courts can decline to
exercise supplemental if:
• Novel/complex issue of
State law
• Claim substantially
predominates original
claim
• Court dismisses claims
over which it has original jx
• In exceptional
circumstances
1367(a) – for claims brought
under a federal question,
supplemental jurisdiction
includes claims involving
joinder/intervention of parties
1367(b) – for claims brought in
diversity, no supplemental
jurisdiction over claims by
plaintiffs against persons made
parties under Rule 14, 19, 20,
or 24.
REMOVAL JURISDICTION - 1441
1441(a) – Can remove to the
district court where it could
have been brought originally
under a Federal Q claim.
1441(b) – Removal solely
based on Diversity
1441(c) – For claims brought
under 1331 (Federal Q):
unrelated (not supplemental or
original) claim also removed to
federal court will be severed
and remanded (along
w/relevant parties)
• All defendants must agree to removal
• 30 days to remove (for diversity, 1-year)
• Possible to waive right to removal
• Plaintiff can contest removal by filing motion to remand
1441(b)(1) – citizenship of
individuals sued under
fictitious names will be
disregarded
1441(b)(2) – May not be
removed if any of the parties
joined and served as
defendants is a citizen of the
State the action is brought in
1441(f) – Derivative removal
jurisdiction. If a civil action is
removed from a State court
that didn’t originally have
jurisdiction the District court
can still hear it
 REMOVAL FOR CLASS ACTIONS
Class Action Fairness Act (CAFA)
• Amount-in-controversy must exceed $5m
• Doesn’t consider home-state defendant rule
• Authorized without consent of all defendants
• Not subject to 1-year time limit
• Not subject to ordinary remand orders
VENUE - 1391
1391(b)(1) – judicial district in which any defendant
resides if all defendants are residents of the state the
district is located in
1391(b)(2) – judicial district in which a substantial
part of the events or omissions giving rise to the
claim occurred or a substantial part of property that
is the subject matter of the action is situated
1391(b)(3) – (fallback) – if no jurisdiction under (b)(1)
or (b)(2), any judicial district in which any defendant
is subject to the court’s personal jx with respect to
such action
VENUE – 1400 – Copyright & Patent Claims
1400(a) – Copyright venue proper where Defendant or agent
resides or “may be found.”
1400(b) – Patent infringement claims brought where
Defendant resides or where Defendant committed acts of
infringement and has a regular and established place of
business
TRANSFER – 1404 and 1406
1404(a) – When all parties consent, to another valid venue.
1406(a) – District court shall dismiss or transfer to a venue the case could have
been brought in originally “in the interest of justice.”
Forum Non Conveniens – Court can dismiss when there is an adequate
alternative forum available.
Forum Selection Clause – the Supreme Court has ruled that the proper
enforcement of a valid forum selection clause is not a motion to dismiss, but a
transfer to the appropriate forum.0
Transferor Law – the court to which a case was transferred applies the transferor
law, except when there is a valid forum selection clause.
Apply Federal Apply Federal Rule if rule “really regulates procedure,”
Apply State Law is constitutional under REA (always is), and does not
Law
“abridge, enlarge, or modify any substantive State right)
ERIE DOCTRINE
ONLY APPLIES TO SUITS BROUGHT IN DIVERSITY
Erie Twin
Claim FQ? (Not State Substantive Can these be read
Aims/Outcome
diversity) Law? together?
Derivative
Put in something
about whether or not
it’s a codified rule

1. Prevent Forum Shopping? – basic Q: would P have

forum-shopped at the outset to avoid a contrary
outcome in a different court?
2. 2. Prevent Inequitable Administration of the Law? –
basic Q: If F judge ignored state law, would it cause
parties to flock to federal court?

Byrd Balancing Test – basic Q: would applying state law

deny a fundamental and essential right?
Apply Federal Law

Apply Federal Law Apply State Law

 PLEADING
NOTICE COMPLAINT – FRCP 8(a)
• Must be reasonably calculated to • Statement of Jurisdiction and Venue
inform • Short statement of the facts showing
• Must be actually desirous of
entitlement to relief
informing
• Must contain a copy of • Prayer for relief (relief sought)
• The summons • Basically: who, what, where, when, how
• The complaint

• Rule 4(e) – service – follow state Short & Plain Twombly/Iqbal Standard
law • Must prove prima facie case • “Conclusory” allegations that are not “well-
• Rule 4(f) – service outside US • Old standard was “no set of facts” pleaded” must be disregarded, need not be
(follow US treaty | if no treaty, • New standard is “plausible pleading” accepted as true
serve according to local law/as • Must show facts (assumed to be true) • Remaining “factual” allegations are to be
foreign authority directs in that give rise to a legal inference that assessed to be determined whether they
response to request/delivery by the claim is true (not just possible, plausibly state a claim for relief
hand or certified mail if local law but actually plausible)
permits)
• Rule 4(h) – Serving corporations
• Rule 5 – Who gets it
• Rule 8(d) – can state multiple
claims, can claim in the alternative
• Rule 9(b) – Heightened pleading
for fraud or mistake (must bring
specific facts)
 AMENDING A PLEADING

RULE 15
• (a)(1) – 1st amended complaint as a matter
of course (must be amended within 21
RELATION BACK – RULE 15(C)
days of service)
• Amended complaint relates back to time
• (a)(2) – after 21 days, need other party’s
the original complaint was filed (getting
or court’s (should be freely granted)
around SOL)
permission
• (1)(a) – law providing SOL allows relation
• (a)(3) – response to amended pleading
back
must be within remaining time or 14 days,
• (1)(b) – amendment asserts claim/defense
whichever is later
that arose out of the conduct, transaction,
or occurrence set out or attempted to be
set out in original pleading
• (1)(c) – if amendment changes party
name, that party has to receive notice
within 4(m) period and either knew or
should have known it was proper party but
for a mistake (stating “unknown” is not a
mistake)
 RESPONDING

RULE 7, 8, 9 - PLEADING RULE 11 - STANDARDS

• 7(a)(1) – Complaint • 11(b) – best knowledge, information, and belief
• 7(a)(2) – Answer to a Complaint 1. Not presented to harass, delay, needlessly
• 7(a)(3) – Answer to a counterclaim designated as a counterclaim increase litigation costs
• 7(a)(4) – Answer to a crossclaim 2. Claims warranted by existing law/nonfrivolous
• 7(a)(5) – Third-party Complaint argument to expand
• 7(a)(6) – Answer to a third-party Complaint 3. Factual contentions have evidentiary support or
• 7(a)(7) – if the court orders one, reply to answer will have likely support after reasonable
• 8(b) – must admit/deny each claim opportunity for discovery
• Denials must respond to substance, can be general or specific • 11(c)(2) – Motion for Sanctions made separately from
as to a claim. Very bad idea to “deny generally” other motions, served under Rule 5, must not be
• Deny in part, admit in part presented if challenged material is withdrawn or
• Lack of knowledge = denial corrected within 21 days.
• Failure to deny = admission (if claim requires denial/admission)
• Preclusion
• 9(b) – fraud or mistake
• 13(a) – Compulsory
• (1) Any claim exists at the time of service
• (a) arises out of the same
transaction or occurrence
• (b) does not require adding a party
RULE 12 - DEFENSES over who the court cannot get
• 12(b)(1) – lack of subject-matter jx jurisdiction
• 12(b)(2) – lack of personal jx • 13(b) – Permissive – any claim not compulsory
• 12(b)(3) – improper venue against an opposing party
• 12(b)(4) – insufficient process • 13(g) – Crossclaim – by one party against a
• 12(b)(5) – insufficient service of process coparty if the claim arises out of the same
• 12(b)(6) – failure to state a claim
RULE 13 – COUNTER/CROSS transaction or occurrence as the subject matter
• 12(b)(7) – failure to join a party under CLAIMS of the original action or of a counterclaim.
Rule 19

RULE 18: A party asserting a claim,
counterclaim, crossclaim, or third-party
claim may join, as independent or
alternative claims, as many claims as it has
against an opposing party
1. Can I do it under the rules? (generally
yes)
2. Is there SMJx and PJx?
COMPULSORY COUNTERCLAIMS: Rule
13(a) – “logically related” = same
transaction/occurrence, doesn’t require
adding a party the court doesn’t have jx
over
• If not raised, waived forever
Does not require standalone jurisdiction
PERMISSIVE COUNTERCLAIMS: Rule 13(b)
– Anything with standalone jurisdiction
• No risk of preclusion if not brought
CROSSCLAIMS: Rule 13(g): Suit against
coparty (same side of the suit).
• Must relate to the trans/occur of
original action, a counterclaim, another
crossclaim, or property involved in the
original action
• Can also claim derivative liability here
JOINDER
RULE 14: Third-parties (D brings in third RULE 19: Compulsory Party Joinder
party D for derivative liability) (Required Parties). Person whose joinder
will not deprive the court of subject-
matter jurisdiction must be joined if: 2-step
14(a)(1) – D as third party plaintiff. Has
14 days after original answer or must
obtain court’s leave to file
19(a)(1)(A) – in that person’s absence, the Is the party a required,
court cannot accord complete relief necessary party?
among existing parties
14(a)(2) – Third party defendant: (a) must
assert any rule 12 defenses (b) must/may
assert any counterclaim against third party Are they indispensable?
19(a)(1)(B) – That person claims an
plaintiff under 13(a) and (b), (c) may
interest relating to the subject of the
assert any defense to P’s claim, (d) may
action and litigating without them:
assert against the P any claim arising out
I. May impair or impede their ability to
of the transaction or occurrence that is
protect that interest Dismiss
the subject matter of the plaintiff’s claim
II. Would leave the existing party subject
against the third-party plaintiff
to substantial risk/inconsistent
obligations
14(a)(3) – Plaintiff can assert any claim
against third party defendant any claim
arising… and third party D must assert any
19(b) – Joinder not feasible – If cannot be
12(b) defenses, followed by any 13(a), (b),
joined (no SMJx or PJx), court decides if
or (g) counter or cross claims
case should be dismissed based on:
• P can sue 3rd party unrelated if
• (b)(1) – whether a judgment might
standalone jx (can aggregate)
prejudice that person or existing parties
• (b)(2) – if judgment would prejudice, if
protective provisions, special relief, or
14(b) – Plaintiff brings in third party in
other measures would lessen it
response to a counter or crossclaim under
the same restrictions as 14(a)
 Rule 20: Permissive Party Joinder
Plaintiff joins the Defendants
20(a)(1) – Plaintiffs can join in one action
as plaintiffs if:
(A): they assert any right to relief jointly,
severally, or in the alternative with respect
to/arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B): any question of law or fact common
to all plaintiffs will arise in the action
20(a)(2) – Defendants can be joined in
one action as defendants if:
(A): any right to relief is asserted against
them jointly, severally, or in the alternative
with respect to/arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
(B): any question of law or fact common
to all defendants will arise in the action
Rule 22: Rule Interpleader (does not limit
Rule 20 Joinder)
Plaintiff: When counterclaim
Defendant: think Trust co.
22(a)(1) – By a plaintiff. Persons with
claims that may expose a plaintiff to
double or multiple liability may be joined
as defendants and required to interplead.
Joinder for interpleader is proper even if:
(A): claims don’t share common
origin/nucleus of operative fact; or
(B): the plaintiff denies liability in whole or
in part to any or all of the claimants
22(a)(2) – By a defendant: A defendant
exposed to similar liability may seek
interpleader through a crossclaim or
counterclaim
Rule 24: Intervention
24(a): Intervention of Right – on timely
motion, court must permit anyone to
intervene who:
(1): is given right to intervene by Federal
statute
(2): claims an interest relating to the
subject of the action, and disposing of the
action may impair/impede movant’s
ability to protect its interest (unless
existing parties adequately represent the
interest)
24(b): Permissive Intervention – may
permit:
(1): is given conditional right to intervene
by Federal statute
(2): has claim/defense that shares with
the main action a common question of
law or fact

(a) District Courts have original (1) Minimal diversity among (2) Plaintiff has deposited the
Section 1335: Statutory jurisdiction of any civil action adverse claimants claiming to money/property/etc. into the
Interpleader of interpleader… amount in be entitled to such money or registry of the court
controversy = $500 if property and
 CLASS ACTIONS

Subject Matter Jurisdiction, Personal Jurisdiction, Venue

Rule 23(a) – Prerequisites Rule 23(b) – Can it be maintained? Can be maintained if:
1. Numerosity (usually 40 or more, as little as 9 have been (1) – prosecuting separate actions by or against individual class
accepted) members would create a risk of:
2. Commonality – common claim among the party members (types • (1)(a) – incompatible standards class [where incompatible
of discrimination, for example) standards of conduct for the party opposing the class would be
1. Same injury created]
2. One central question of law • (1)(b) – limited fund class [where adjudicating separately would
3. Single determination substantially impair or impede the ability of the members not
3. Typicality – complaint of named plaintiff representative of the parties to protect their interests]
complaints of the class (2) – Injunctive Relief Class [the party opposing the class has acted
4. Adequacy of Representation or refused to act on grounds that apply generally to the class, so that
1. Attorney’s experience final injunctive relief/declaratory relief is appropriate respecting the
2. Attorney’s financial means of carrying the class action to class as a whole
completion (3) – Damages Class

CLASS ACTION FAIRNESS ACT (CAFA):

• At least 100 people whose claims aggregate to at least $5 million
• Minimum Diversity Among Adverse claimants (not all the same on
either side)
• Red Carpet Removal
• Single D may remove
• Citizenship of D is irrelevant
• One-year time limit doesn’t apply
• Remand orders reviewable
• Unincorporated Associations – citizenship is where PPB or state of
incorporation

Rule 26(b)(1): Information relevant to
the claim or defense (look at pattern
jury instructions)
26(b)(2)(C) Proportionality: Burden is
on the resisting party to show
production is not unreasonably
cumulative, duplicative, or that there
is another more convenient (less
burdensome/expensive) option
Shift burden? Zubulake. See next:
1. Extent to which the request is
specifically tailored to discover
relevant info
2. Availability of such info from other
sources
3. Total cost of production compared
to amount in controversy
4. Total cost of production compared
to available resources (to each
party)
5. Relative ability of each party to
control costs and incentive to do
so
6. Importance of the issues at stake
7. Relative benefits to the parties of
obtaining the info
DISCOVERY
What can’t I discover?
26(b)(3): Materials prepared in
anticipation of a trial unless:
• Otherwise discoverable under
26(b)(1)
• Party shows it has substantial need
and can’t obtain substantial
equivalent by other means without
undue hardship
26(b)(5): Privileged Information
• Must expressly claim privileged
• Must describe the information
withheld in a manner that allows
other parties to assess the claim
without revealing
privileged/protected information
Privilege Log required
Work-Product: Anything prepared in
anticipation of litigation, even that
not prepared by or at the behest of an
attorney
26(b)(2)(B): Electronic info not easily
accessible (burden of proof on the
resisting party)
26(b)(3)(B): Protection Against
Disclosure – If the court orders
discovery of such anticipatory
material, it must “protect against
disclosure of the mental impressions…
legal theories… of a party’s
attorney/representative concerning
the litigation.”
Attorney/Client: Pertains to
communication | Occurred in
confidence exclusive of third parties
not party to privilege | between
licensed attorney acting as such and
client or between clients at behest of
such attorney | communication for
the purpose of giving/seeking legal
advice | not waived by
communication of such information
to third parties not privileged
• Protects communication, not facts
26(f): Parties are required to confer at
least 21 days before a scheduling
conference/scheduling order due
Exception: 26(a)(1)(B) – proceedings
exempt from initial disclosure
26(c) – Protective Orders
(1)– anyone from who discovery is sought
may move for protective order in the
court where action is pending or in the
court for the district where a deposition
will be taken. Such a motion must include
a certification that the movant has in
good faith conferred/attempted to
confer with other parties in an attempt
to resolve the dispute without court
action. The court may, for good cause,
issue an order to protect a person from
annoyance, embarrassment, oppression,
or endue burden or expense, including:
A. Forbidding disclosure or discovery
B. Specifying terms (including
time/place/allocation of expenses)
for disclosure or discovery
C. Prescribing alternative discovery
method
D. Forbidding inquiry into certain
matters/limiting scope to certain
matters
E. Designating the persons who may be
present while discovery is conducted
F. Requiring a deposition be sealed,
only opened on court order
G. Requiring trade secret/other
confidential research
development/commercial info not be
revealed/revealed in a specific way
H. Requiring parties to simultaneously
file specified documents or
information in sealed envelopes, to
be opened as the court directs
 DISCOVERY: BUT WAIT THERE’S MORE!
3-factor test for cost-shifting:
1. Is data relatively inaccessible? 35 – Physical and Mental
2. Of the data that can be found (per Examinations |
sample), is it likely to be useful? • (a)(1) – when a party whose
3. 7-factor Zubulake mental or physical condition is
in controversy and that
Main Q: Does the request impose an person is in its custody or
“undue burden or expense” on the under its legal control
responding party?
45 – Subpoenas
26(a) – Initial Disclosures
(usually made at discovery
conference per 26(f)).
Made within 14 days (unless
otherwise agreed upon)
30 – Depositions by Oral Examination –
Can state objections, but must answer
36 – Requests for Admission |
• Maximum of 7 hours of depositions
Asking for “the truth of any
• Person being deposed is sworn in,
matters within the scope of Rule
videotaped
26(b)(1)
• 30(a)(1)&(2) – with/without leave
• 30(b) – Notice of Deposition and
Other Requirements
• 30(c) – Examination and Cross-
examination
• 30(d) – Duration, Sanctions, and
Motion to Terminate/Limit
• 30(g) – Failure to attend Depo/Serve
Subpoena; Expenses
33 – Interrogatories | Written questions
answered under oath. Required to
supplement
• (a)(1) – limited to 25 questions, can
consent to more per 26f
• (b)(2) – must serve
answers/objections within 30 days
after service (court can order change
or Rule 29)
• (d) – Possible option to produce 34 – Production – 30 days
business records (find it yourself) • (a) – what you can request
• (b) – Requesting it a certain way
• (b)(2) – Responses and Objections
• (b)(2)(E)(i) – “must produce documents as
they are kept in the usual course of business”
• (b)(2)(E)(ii) – if not specified, form in which it
31 – Depositions by Written is “ordinarily maintained”
Questions • (b)(2)(E)(iii) – Do not need to produce ESI
multiple ways
37 – Failure to Make Disclosures or
Cooperate in Discovery: Sanctions
• (a)(3) – Motion to compel (and others)
Obligation to preserve ESI if you
• (b) – Failure to comply with a court order know/anticipate litigation
• (c) – Failure to disclose, supplement an
(Rimkus v. Cammarata) –
earlier response, or to admit severity of sanctions depends on
• (e) – Failure to preserve ESI
level of prejudice created
Possibly Adverse Inference,
default/dismissal in severe cases

DEFAULT JUDGMENT
54(b) – when there are multiple
claims/parties: unless all
claims/parties are ruled on, any
of them can be revised
54(c) – default judgment cannot
exceed the amount which is
demanded in the pleadings.
55(a) – affirmative relief: clerk
enters party’s default when they
have failed to plead or defend
and party seeking default
provides affidavit
55(b)(1) – when an individual
has not appeared, plaintiff’s
claim is for a sum certain
(specific amount) or can be
calculated, clerk enters default
judgment (person who didn’t
show up cannot be minor or
incompetent)
DISPOSITION WITHOUT TRIAL
55(b)(2) – All other cases: party
must apply to the court.
• If party against whom default
judgment is sought has
appeared – must be served
notice of default hearing at
least 7 days prior
• Court can conduct hearing to:
conduct an accounting,
determine damages, establish
the truth of any allegation by
evidence, or investigate any
other matter
55(c) – Setting Aside a Default
Judgment
Court may set aside entry of
default for good cause, and may
set aside final default judgment
under 60(b).
• Meritorious defense?
• Reasonable Promptness?
• Personal Responsibility?
• History of dilatory behavior?
• Option for less drastic
sanctions?
• Prejudice to other party?
SUMMARY JUDGMENT
56(a) – sought per issue. Moving
party (usually D) must show no
genuine issue of material fact.
• 56(b) – Within 30 days of
close of discovery
1) By pointing to an absence of
evidence necessary to prove
essential element (1 v 100)
(Celotex) [Equipoise = no “I
saw him hit by train” = not
sufficient] (Burden shifts
back to nonmoving party to
provide such evidence)
2) By providing evidence
affirmatively disproving
essential element (burden
shifts to nonmoving party to
generate other evidence)
Rule 68 – Judgement Offers: If D Genuine Issue of material fact
is willing to settle and you turn it
down, you have to pay other
side’s costs if you end up getting
less than they offer

7th Amendment
• Must make request/demand within 14
days of service of last pleading (Rule 38)
• Courts of Law v Equity (money, jury –
grudge, judge)
• Law: for money, heard by jury
• Equity: seeking other party to do/not do
something, heard by judge
• Either side can request jury, waiver is
possible
50(a) & (b) (made together)
• (a) – Judgment as a Matter of Law
• Based on legality
• When equipoise or anything
concerning credibility, must go to
jury
• (b) – Renewed Motion for Judgment as a
Matter of Law (let the judge fake-bypass
jury’s decision. JNOV.
• Court can allow jury verdict, order
new trial, direct entry of
judgment as matter of law
“No reasonable jury could
conclude”
MOTIONS AT TRIAL
50(d) – Motion for new Trial under 59
against whom judgment as a matter of law So far contrary to the clear
is rendered must be filed no later than 28 weight of the evidence
days after entry of the judgment
50(e) – If motion for JML fails, moving party
appeals, appellate court makes decision
59 – New Trial – Court may grant on motion
no later than 28 days after entry of
judgment:
• After a jury trial for any reason which a
new trial has heretofore been granted in
an action at law in federal court
• After a nonjury trial, for any reason for
which a rehearing has heretofore been
granted in a suit in equity in federal court
Additur – when damages are assigned by
• 59(d) – for its own reasons within 28
the jury but the judge increases the
days after entry of judgment for any
amount. Illegal in Federal Court as violates
reason that would justify granting one if
7th amendment but ok in State Court
a party moved for it (court must specify
reasons)
Remittitur – when damages are assigned by
• Material error (as opposed to harmless
the jury, but the judge reduces the amount
error) that creates substantial prejudice
and says to either take the reduced amount
(e.g. an unreliable witness)
or face a new trial.

Res Judicata/Claim Preclusion:
When:
1: A prior action has concluded in
a valid and final judgment
2: A claim on the subsequent
action is the same as raised or
should have been raised in the
previous action (standard is
transactionally related)
3: The parties are identical to/in
privity with the parties in the first
action
3. Are the parties (or their
privities) the same? Six exceptions
to rule against nonparty
preclusion:
1) Consent to be bound
2) Substantive legal relationship
(successor in interest,
assignor)
3) Other adequate representation
(trustee)
4) Assumed control (insurance
co.)
5) Relitigation via proxy
6) Statutory provisions
(bankruptcy/probate)
RES JUDICATA & COLLATERAL ESTOPPEL - PRECLUSION
1. Only 12(b)(6) with prejudice or
final judgment are considered a
valid and final judgment
Claim  Issue
2. Same claim?
Exception: when you were barred
from bringing the claim in the first
case
A. Transactional test – no claim
splitting
A. Are the two actions
based on the same
nucleus of operative
fact?
Collateral Estoppel/Issue
Preclusion
1. Was the issue actually litigated
and determined by a valid and
final judgment?
2. Was the issue essential to the
judgment?
3. Are they the same parties/in
privity? (mutual collateral
estoppel)
Non-mutual Defensive (D tries to
keep P from relitigating an issue P
lost on previously)
• Incentivizes all parties to join at
outset
Non-mutual Offensive (P tries to
keep D from relitigating an issue D
lost on previously)
• Not allowed when P could have
easily joined in the earlier
lawsuit, or when P is using
“wait and see”