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Personal Jurisdiction
A. Rule: Contacts and Fairness Analysis
a. International Shoe: WA wants Shoe to pay into an unemployment fund – but Shoe only has salesmen in WA with
no real product (one shoe per pair); court classifies Shoe as Continuous and Systematic & Related (see Specific Jx
below); Shoe is reaping the benefits of WA (customers, police protection, etc.)
i. Rule: requires minimum contacts such that fair play and substantial justice are not offended
ii. Quality and quantity both matter = higher the quality the less fairness you need
iii. But if the # of contacts reaches zero, fairness is immaterial = no personal Jx
B. Contacts Analysis
a. Any Contacts?
b. Purposeful Contacts / Purposeful Availment?
i. McGee: purposeful availment is sufficient; contract was delivered in CA and premiums mailed from CA
(chose CA customer)
ii. Hanson: unilateral actions of the P is not sufficient; Mom’s move to FL does not establish FL P Jx over
D (trustee); (chose DE customer who moved to FL)
iii. Asahi: international tire/rubber case; placing product in stream of commerce alone is not enough; esp
when added to fairness factors (see below); must have SoC directed at the state, three factors:
\
1. Volume Advertising? Designed for
2. Hazard forum’s buyers?
3. Value
iv. Burger King: franchise problems - contracts may be purposeful availment; choice of law clause means
K parties are purposefully availing themselves of that state’s law
c. Tag Jurisdiction?
i. Burnham: divorce case; husband in CA; in hand, in state service is sufficient; difference between
intentional and involuntary presence in forum state; N/A for corporations (surviving Pennoyer factor)
d. General Jurisdiction?
i. Coastal Video: substantial minimum contacts such that an unrelated suit is fair; must have “pervasive
contacts” – but that may not be sufficient
1. consistent and substantial pattern of business relations (heavy sales, significant # of hits on the
website from state)
2. Krames/Staywell’s contacts were insufficient – they were not wrongdoer so court easier on them –
Coastal was seeking declaratory judgment that C wasn’t infringing on K’s booklet copyright; No
PJ b/c the contacts didn’t arise from the cause of actions
ii. Individuals: state of their domicile
iii. Corporations: state of incorporation and state of principle place of business (based either on nerve
center test or muscle test (or both))
e. Specific Jurisdiction?
i. International Shoe: requires minimum contacts such that fair play and substantial justice are not
offended
1. Continuous and systematic & very related (ex: you are a corp whose headquarters are in CA
and your employee hits someone in CA) Jx (Shoe)
2. Continuous and systematic & unrelated (ex: you live in CA, you are in NY and get in an
accident there, you get sued in CA…the fact that you’re a Californian is unrelated to the accident
in NY…your contacts to CA are extreme but they are unrelated to the NY accident) (sometimes
Jx; can’t always predict)
3. Casual presence of an isolated/sporadic/incidents that are related (sometimes Jx; must look at
how isolated and sporadic)
4. Casual presence of an isolated/sporadic/incidents that are unrelated (No Jx)
ii. Suit must relate to the contacts; need not be pervasive
iii. Pavlovich: internet as contacts / purposeful availment:
1. Personal Jx is proper = Interactive with sales
2. Middle Ground = Interactive w/o sales; depends on level of activity
3. Personal Jx is improper = Non-interactive / passive
4. knowledge that actions might adversely affect state not enough (P has decryption codes on
website; passive)
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iv. Calder: National Enquirer case, activity aimed at state was enough; factors:
1. knowledge of the effect
2. substantial sales in forum state
3. targeting forum state
v. LL Bean: substantial, continuous, systematic contacts; website operations in CA enough

f. Pennoyer – Three holdings:

i. In person, instate service is good to assert Jx (still good under Burnham)
ii. In rem is sufficient to assert Jx (overturned by Shaffer)
iii. Substitute service or constructive notice okay (overturned by Shoe)
iv. Principle is that states don’t have power outside of their borders
C. Fairness Analysis
a. World Wide Volkswagen: car accident in OK, fire-injuries; P’s want to sue NY dealers too so no complete diversity
(OK court more sympathetic than Fed court)
i. Convenience of D (and possible inconvenience to P to litigate elsewhere (Burnham))
ii. Forum State’s interest in the litigation
iii. P’s interest in effective relief
iv. Shared interests of several states in obtaining efficient resolution of controversies
v. Shared interest of the several states in furthering fundamental substantive social policies
vi. Maybe: “Procedural and substantive policies of other nations” (Asahi)
b. Note: Foreseeability that is relevant is that D foresees he might be hailed into court
c. Shaffer (pre-WWVW): in rem is destroyed as substitute for fairness analysis; traditional methods of asserting Jx
may offend due process (also first case to apply Shoe to individuals not corps); shareholder sued BoD alleging
breach of duty to corporation (Greyhound); not enough to have in rem over the “shares” of the corp
D. Rule: 4(k)(1)(a): for federal court personal Jx analysis, generally the relevant contacts are with the state in which the
federal court sits, not the entire country; directs Federal DCs to act like the local state court for purposes of their
Jurisdictional reach; Congress can exempt FDC’s though
a. Rule 4(k)(1)(c) allows Jx when authorized by a federal statute (like the Clayton Act in Dee-K: D is a corporation,
antitrust law allows Jx from worldwide service of process)
E. Consent as substitute for power
a. Carnival Cruise v. Shute: upheld a forum selection clause in a K (on ticket) where there is no breach of
fundamental fairness (fraud, overreaching, illegitimate intent, lack of notice)
b. Adjudication on the merits also seen as consent
F. Constitutional Requirement of notices: notice of judicial proceedings must be reasonably calculated to reach those who
are known to be affected by such proceedings
a. Mullane: constitutional standard that notice has to be reasonably calculated to give actual notice; mass mailings
or publication ok if reasonable; requires a legitimate effort to achieve notice at a reasonable cost
i. Bank wanted to merge multiple trusts, had lists of beneficiaries and successors but didn’t notify everyone
they had an address for – must do that and make reasonable efforts to get rest (cost-benefit analysis)
b. Rule 4(c): serve summons and complaint
c. Rule 4(d): (Waiver of Service) If D waives – he receives an extended period of time to respond to the complaint; If
D doesn’t – he is required to pay for subsequent service; has a “duty to save costs of service”
d. Rule 4(e): four methods for serving the process of a federal district court to a D:
i. Follow the state law
ii. Deliver it to the individual personally
iii. Leave a copy at the dwelling with someone of age and discretion who resides there (substitute service)
iv. Deliver it to the agent for service of process
e. Policies:
i. Procedural due process
ii. People need to be aware that they are being sued
iii. Try case on merits not procedural mistake
G. Long Arm Statutes: statues that grant personal Jx over out of state D’s. CA’s statute extends personal Jx as far as the
Constitution allows (“any basis not inconsistent with the Constitution”)(Shoe Test)
a. Gibbons: (shorter long arm statute) FL: D must be engaged in substantial and not isolated activity within this
state, whether such activity is wholly intrastate, interstate, or otherwise, [to be] subject to the Jx of the courts of this
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state, whether or not the claim arises from that activity; prior suit not enough as it is no longer active;
2 prongs to satisfy Personal Jx:
i. P must allege sufficient Jx facts to satisfy the forum’s long arm statute, then
ii. P must show whether sufficient contacts exist to satisfy International Shoe’s req’s of Due Process
b. Federal: use state’s long arm statute; Exception: when Congress mandated that federal courts have Jx (Dee-K). The
reason it’s done this way is to avoid an Erie problem.
H. Challenging Personal Jx:
a. Rule 12(b)(2)
b. PreAnswer Motion or Answer: have to challenge Personal Jx on the 1st document D takes to court (12(g), (h))
c. Special Appearance: Appear just to challenge Jx (court won’t assert Jx against you based on that appearance
(costly))
d. Collaterally Attack: Ignore the action & challenge it when P tries to enforce it in your state (risky)
I. Policies of Personal Jx
a. Fairness
b. Federalism (in the background)
i. Interstate issues are addressed by Choice of Law rules not Personal Jx
ii. National Federalism addressed by Subject matter Jx
c. Notice
d. Changing Technology
e. Due Process Clause: 5th A said Fed Gov can’t violate Shoe, 14th A links the 5th and Shoe to all states
Venue
A. 28 U.S.C. § 1391: Establishing Venue
a. Party Based: where any D resides (any district)
b. Claim Based: where a substantial part of the events or omissions giving rise to the claim occurred
c. Is subject matter Jx based solely on diversity?
i. Use 1391(a)
ii. Party based venue ((a)(1)) or claim based venue ((a)(2))
iii. If neither of those yield an appropriate venue, can use fallback provision ((a)(3)): a judicial district in
which any D is subject to Personal Jx at the time the action is commenced
d. Is subject matter Jx NOT based solely on diversity?
i. Use 1391(b)
ii. Party based venue ((b)(1)) or claim based venue ((b)(2))
iii. If neither of those yield an appropriate venue, can use fallback provision ((b)(3)): a judicial district in
which any D may be found
e. Corporate Defendant: for purposes of this section, deemed to “reside” in any judicial district in which it is subject
to personal Jx at the time the action is commenced (1391(c))
f. Alien Defendant: venue is proper in any district (1391(d)); Dee-K: alien D’s are covered in any District
B. Transfer of Venue
a. If venue is improper, court shall dismiss or transfer the case to another district where the case could have been
brought (28 U.S.C. §1406(a))
b. If venue is proper, court has discretion to transfer the case to another district where the case could have been
brought (28 U.S.C. § 1404(a))
i. Factors to consider: convenience of parties and witnesses, “interests of justice”
c. 28 U.S.C. § 1631: venue proper but personal Jx lacking (transfer districts)
C. Forum non conveniens: Only means for inter-system reallocation of cases
a. Requires 2 elements:
i. Court must have had power to hear the case originally
ii. There is a more proper, viable, alternative forum available that is outside of the federal court system
b. Gilbert: ordinarily a strong presumption in favor of the P’s choice of forum
c. Koster: choice of forum is entitled to greater deference when the P has chosen the home forum; foreign P’s
choice deserves less deference
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d. Piper Aircraft: Plane crash by a pilot flying below the recommended minimum altitude (just got his commercial
license 3 mos ago) Pilot / Scottish D’s are either not lucrative D’s or are just not within the reach of US Jx
Private and Public Interests:
i. Private: relative ease of access to sources of proof; availability of compulsory process for attendance of
the unwilling witnesses; cost of obtaining attendance of willing witnesses; possibility of view of
premises (if applicable); all other practical problems that make trial of a case easy, expeditious, and
inexpensive
ii. Public: court congestion; local interest in having localized controversies decided at home; interest in
court that knows the law (diversity action); avoidance of unnecessary problems in conflict of laws or
application of foreign laws; unfairness of burdening citizens in an unrelated forum with jury duty
iii. DC’s holding to transfer okay; AC Gave too much deference to the choice of forum by the P; Possibility of
unfavorable change in law to P doesn’t bar dismissal by FNC
e. Ferens v. John Deere (note case): Guy in MA got hurt on a John Deere tractor. But SoL was up – went to MI and
got general Jx there; SOL was longer – and they transferred back to MA; “What was dead is now alive again”
f. Policies:
i. Convenience
ii. Fairness
iii. Connections between litigation and forum state
D. Local Actions: some places might have a statute that said if the litigation is about a piece of land in a certain spot – that is
where you have to litigate (28 U.S.C. § 1392)

Subject Matter Jurisdiction

A. Federal Question Jx
a. Art III: judicial power shall extend to all cases… arising under the Constitution [and] the laws of the United
States. Arising Under = federal ingredient
b. 28 U.S.C. § 1331: judicial courts shall have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the U.S. Arising Under requires satisfaction of the Well Pleaded Complaint Rule
i. Mottley: (Train Pass Case) your federal Q must arise under the facts of your complaint (sword), not as
an affirmative defense (shield); allows sorting of matters before litigation
1. SC had Jx to hear the case the second time around b/c it fell within their Art III Jx (D had plead
the federal Q by then)
2. 9th Circuit: if the Federal ingredient is necessary to the P’s success (vs. being one of a few ways in
which the P could succeed), then the claim arises under federal law
c. Policies in favor of Federal Jx
i. Uniformity of interpretation of federal law
ii. Federal Judges are appointed for life – insulation from political pressures
iii. May be more attuned to national consensus than local ideas
iv. Litigator might want to be in federal court b/c know judges, less wait, juries drawn from different pool
B. Diversity Jx (established at time of filing)(Policy: preventing home town bias)
a. Art III: judicial power shall extend to… controversies… between citizens of different states. Note: only requires
minimum diversity
b. 28 U.S.C. § 1332(a): judicial courts shall have original jx of all civil actions where the matter in controversy
exceeds… $75,000….
i. And is between:
1. Citizens of different states
2. Citizens of a state and citizens or subjects of a foreign state
3. Citizens of different states and in which citizens or subjects of a foreign state are additional
parties; and
4. A foreign state as P and citizens of a state or of different states
ii. Note: requires Complete Diversity (Strawbridge Rule – no P and no D can be citizens of same state
(relaxed for class actions))
iii. Redner: Citizenship is established by domicile plus intent to remain; P’s theory was he is a resident of a
foreign state (France) and Ds are residents of NY; P admitted he is a citizen of US on face of complaint
iv. Akenbrandt – Domestic Relations Exception: suits for divorce, alimony, child custody fall o/s of diversity
v. Amount in Controversy: Not allowed in Federal Court if no reasonable finder of fact, if the allegations of
the complaint are true, would ever award the P more than $75,000 and have that award stand (St. Paul)
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1. Hard to value injunctive relief; use how much injunction is worth to both parties (higher $)
2. Aggregating: Single P can always aggregate as many claims as he has against a single D – no
matter if they are unrelated
a. Different parties can never aggregate their claims – EVEN if the claims arise out of the
same incident
b. Exception: Have to share a common undivided interest in a single asset (title or right)
c. Compulsory Counterclaim: If the P’s claim exceeds 75 – D can assert any counterclaim
against P provided it arose out of the same occurrence
d. Permissive Counterclaim: if unrelated – then there must be an independent
jurisdictional basis
c. Alien Litigant: for purposes of this section and §1441 (removal), an alien admitted for permanent residence shall be
deemed a citizen of the state in which such alien is domiciled (§1332(a))
i. Saadeh: D.C. Circuit held text means only to eliminate SM (diversity) Jx btwn a citizen and an alien living
in the same state (used legislative intent); S Greek citizen; F alien
1. Split: 3rd Cir held opposite – cannot stretch the text that far (Daimler)
d. Corporate Litigant: for purposes of this section and §1441 (removal) is deemed a citizen of its state of
incorporation and principle place of business (§1332(c))
e. Partnerships: citizen of each state in which a partner is a citizen
C. Challenging Subject Matter Jx Rule 12(b)(1)
a. Similar to Challenging Personal Jx; can collaterally attack if you took a default; can appeal it later if you tried and
lost;
b. Difference is you cannot waive SM Jx (you can expressly or impliedly waive Personal Jx)
c. If you attack both SM Jx and failure to state a claim (Rule 12(b)(6)), court treats it primarily as a 12(b)(6) and thus
ruling has a claim preclusive effect
d. If only dismissed on SM Jx you can bring the claim again in another court

D. Supplemental Jx
a. 28 U.S.C. §1367
i. (a) is the supplemental claim part of the same case or controversy as the anchor claim? i.e., do the
claims derive from a “common nucleus of operative facts”?
1. Gibbs: set common nucleus standard; test is how related they are in time/space/logic – no bright
line rule – Transactions or series of related transactions
ii. (b) is the anchor claim in federal court solely on the basis of diversity Jx?
1. If so, supplemental Jx does not extend to:
a. Claims by P’s against persons made parties under
i. Rule 14: third party practice (impleader)
ii. Rule 19: joinder of persons needed for just adjudication
iii. Rule 20: permissive joinder
iv. Rule 24: interveners
v. Purpose is to preserve complete diversity rule
b. Claims by persons:
i. Proposed to be joined as P’s under Rule 19 (joinder of persons needed for just
adjudication)
ii. Seeking to intervene as P’s under Rule 24 (interveners)
c. [If adding those persons will destroy diversity of citizenship]
d. Can piggy-back the amount in controversy but not diversity of citizenship
i. Exxon-Mobile: Where other elements of Jx are present and at least one
named P in the action satisfies amount-in-controversy requirement, §1367
does authorize supplemental Jx over the claims of other P’s in same Article III
case or controversy, even if those claims are for less than the jurisdictional
amount specified in the statute setting forth the requirements for diversity Jx
iii. (c) discretionary reasons why court may decline supplemental Jx:
1. Claim raises a novel or complex issue of state law (law uncertain; NOT just time-consuming or
burdensome – Jin: Falun Gong; diff state defamation laws time-consuming; but not uncertain)
2. Claim substantially predominates over the claim(s) over which court has original Jx
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3. Court has dismissed all claims over which it has original Jx (note: if dismissed on the merits
court can retain Jx on supplemental claims)
4. There are other compelling reasons for declining Jx
iv. (d) statute of limitations tolling provision:
1. SoL for any claim asserted under (a) that is later dismissed shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed (unless state SoL has yet to run out or
provides for more time)
2. Power to toll arises under Necessary and Proper Clause
b. Justifications for Supplemental Jx: judicial economy, convenience, fairness; (Jin v. Ministry of State Security);
don’t want to force P into a Hobson’s choice – assert all claims in state court or prosecute claims in fed and state
simultaneously, with one possibly claim precluding the other
c. Challenging SM Jx: Focus on Rule 12
i. Jurisdictional Issue – you are not challenging the case on the merits, just the court’s authority to hear it
(similarity between P Jx and SM Jx)
ii. BUT: parties’ actions can waive P Jx; CAN’T waive SM Jx (Mottley;Van Noorden: guy challenged own
SM Jx when he lost)
iii. 12(b)(1) challenge of SM Jx; 12(b)(2) personal jx; 12(b)(6) failure to state a claim
iv. Difference in result in attacking case based on SM Jx or merits
1. Merits – no cause of action (12(b)(6))
a. “Because there is no civil rights claim, there is no SM Jx” (12(b)(1))
b. If you attack both – court treats it primarily as a 12(b)(6)
c. Future claim preclusion effect (Semtek)
2. Dismissed on SM – you can bring the claim again in another court (12(b)(1))
a. No claim preclusion – only for that specific court (case?)
b. Too late to challenge SM if you go all the way up the appellate ladder (cert. denied)

E. Removal Jurisdiction
a. Different from a transfer of venue; moving case from state to federal court
b. 28 U.S.C. §1441: Generally:
i. (a) does federal court have original Jx over this case? (yes – can remove)
ii. (b) what kind of subject matter Jx is applicable?
1. If federal Q, citizenship of D’s does not matter
2. If diversity, case is only removable if none of the Ds are citizens of state in which suit is filed
a. Note: An alien is a citizen of the state in which he is domiciled for this provision (see
§1332(a))
b. Note: A corporation is a citizen of its state of incorporation and principal place of
business for this provision (see §1332(c))
c. 28 U.S.C. §1446: For a D to remove a case:
i. He or she must provide a short and plain statement on the grounds for removal (§1446(a))
ii. Within the allotted time period (§1446(b))
1. If the case was immediately removable, 30 days
2. If case was not removable at initiation, 30 days from when the case became removable
a. Note: if Jx is based on diversity, cannot remove more than 1 year after
commencement of suit, regardless of if it later becomes available
d. 28 U.S.C. §1447(c): If P wants to remand back to state court, has to file a motion within 30 days
i. Exception: if remand is due to lack of subject matter Jx, no time limit
e. Case must be properly before the court at time of removal; a later cure of defect will not suffice
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i. Grupo: A party's postfiling change in citizenship cannot cure a lack of subject-matter Jx that existed
at the time of filing in a diversity action
1. Distinguished from Caterpillar b/c Grupo was a change within a party not a dismissal of a party
ii. But see Caterpillar: it would be a waste of judicial resources to vacate this judgment based on the court’s
error of retaining Jx despite lack of complete diversity
1. Had incomplete diversity at time of filing, but complete at time of trial
2. bulldozer accident with multiple P’s/D’s – settlements solved problem of complete diversity

Erie Doctrine
Issue: when a federal court is sitting in diversity (or in a federal Q case with a state law supplemental Jx claim), and the state and
federal laws differ, how do we decide which law to apply?
Post-Hanna Steps to an Erie Problem:
0) Is there a conflict btwn federal and state law?
1) Is there a Federal Rule or Statute on point? (see Hanna)
a. Determining if rule/statute is on point:
i. Supreme Court has stretched “on point”
1. Burlington: state automatic 10% punishment for loser in appellate case (apply federal rule of
appellate procedure b/c states that “damages may be awarded for frivolous appeals”)
2. Stewart: forum selection clause; found statue on point (apply federal rule – which in this case
simply looks to what the state would do “in the interests of convenience of the parties and justice”)
ii. Supreme Court has also limited “on point”
1. Ragan: state law determines when an action is commenced (upon service of D; not filing of
complaint as under Rule 3; read Rule 3 narrowly to avoid application)
2. Gasperini: judge reviewing jury awards; Circuit Court can’t do it: 7th A: “no fact, tried by a jury,
shall be otherwise reexamined in any Court of the United States”
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a. But spirit of Erie said that we should give some deference to state law – let DCs do it as
permitted under the common law; DC judges had more leeway here than AC judges
b. If the answer is yes, ask if the rule/statute is constitutional (answer is almost always yes) and then apply that rule
i. Can also ask if it is beyond the scope of the Rules Enabling Act (not procedural) Yes
c. If the answer is no, go to step 2
2) Is the state practice bound up with the state created rights and obligations in such a way that its application in federal
court is required? (see Byrd)
a. If the answer is yes, apply state law
i. Determining if the practice is “bound up”:
ii. Has the state given a reason for this practice? Is the rule an integral part of the rights and obligations
of parties (i.e., would the cause of action look different if you did not apply this practice)? Is it merely a
mode of enforcement? (see Byrd)
b. If the answer is no, go to step 3
i. Byrd: substantial federal interest; state rule is merely a form and mode of enforcing a right; Autonomy
of the Federal Court is very important – and essential characteristic of that system is the distribution of
functions between judges and juries (issue was whether judge or jury will decide whether P was Ee or IC)
3) Is choice between two practices outcome determinative, keeping in mind the twin aims of Erie? (see York, Byrd, Erie)
a. Will it lead to inequitable administration of the law? Goals are:
i. Discouraging forum-shopping
ii. Encouraging the equitable administration of the laws
b. If the answer is yes, apply the state law
i. York: SoL; State rule that will encourage forum shopping b/c of different outcomes must be applied,
whether it is labeled substantive or procedural (OD Test created here)
ii. Semtek: Claim preclusion, no FRCP on point; res judicata effect of a federal diversity judgment is such as
would belong to judgments of the State courts rendered under similar circumstances – SC chose to
apply state law – is thus applying Federal law
1. Exception: we will not copy state law if state law is incompatible with federal interests
c. If the answer is no, apply the federal law
i. Hanna: service of process is procedural; Rule 4(d)(1) applies and thus federal law wins
A. Erie Doctrine Policies
a. Don’t want different outcomes based on where you live
b. Limited Federal Government – doesn’t have power to dictate certain things to states (contract law, etc.); deference
to state courts as lawmaking bodies
i. But: federal courts are an independent judicial system with the autonomy that statement implies
B. Erie History
a. Rules of Decision Act (28 U.S.C. §1652): laws of the several states shall be regarded as rules of decisions in
civil actions in the courts of the US, in cases where they apply
b. Swift v. Tyson: interpreted the RDA as not requiring federal courts to use state case precedents as part of the
“laws” of that state; “general” common law is the same to all
c. Erie: overturned Swift - if the case is in federal court based on diversity, the laws of the State apply, whether made
by the state legislature or the state supreme court
i. A federal court sitting in diversity must apply the conflict of law principles of the forum state (Klaxon)
d. Rules Enabling Act – SC has power to issue FRCP – but can’t enlarge, modify or abridge any substantive right
i. Example: §1332: Congress has power to shrink power of courts; but Congress can’t expand power of courts
Remedies
A. Substitutionary Remedies
a. Compensatory Damages: Supposed to place P in her rightful position – the position she would have been in had
the D not committed the wrongful act
i. Economic Damages: Money P has lost or had to pay
ii. Non-Economic Damages: Pain & Suffering, emotional distress, loss of consortium, humiliation, harm to
reputation
1. Hard to measure; Rule of thumb: P&S = 3x the economic damages
2. Ask jury to measure one hour or one day’s suffering and multiply it by a lifetime
3. Jury instructions give little guidance
4. Legislatures try to aid predictability by barring certain damages or capping them
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b. Liquidated Damages: contractual; try to agree beforehand about the price of the harm
i. Limitations – must look like a good faith estimate of what actual damages were likely to be, and it is in a
setting where actual damages are difficult to ascertain
c. Statutory Damages: like LD’s; not specifically tied to the amount of loss suffered
d. Punitive Damages: aim to punish the D for wrongful behavior; exception to the general rule that damages serve
only to compensate the P
i. generally need to prove willfulness or malicious intent; by clear and convincing evidence
ii. can introduce testimony about D’s net worth so court can judge what would hurt
iii. Two views: 1) unpredictable and out of control; 2) relatively rare, median amount is about $50,000
iv. Supreme Court has struggled with Punitive Damages
v. Browning-Ferris (1989): held that Due Process Clause places outer limits on the size of a civil damages
award made pursuant to a statutory scheme
vi. State Farm v. Campbell (2003): Insurance bad faith. Jury: $2.6M compensatory; $145M punitive. Court
reduced to $1M compensatory, $25M punitive
1. Court held that the award could not be based on national activity and injury, but only state
activity and injury (procedural approach)
2. Substantive Approach from BMW v. Gore: Three Guideposts
a. Degree of Reprehensibility (It’s a paint job! —it’s just not that bad)
b. Ratio btwn CD and PD (500 times the amount of actual harm=Not reasonable)
c. Sanctions for Comparable Misconduct (No other states imposed this high of
punishment, May be different if have a history of past misconduct)
d. “In practice, few awards exceeding a single-digit ratio between punitive and
compensatory damages will satisfy due process”
3. Recognized that in low damage cases an award exceeding a single-digit multiplier may be
appropriate
e. Restitution Damages: Make sure D is placed in his rightful condition – where he would be but for his wrong; No
“ill gotten gains” (really an equitable remedy)
i. i.e., D steals a wallet, uses money to buy stock that triples; P gets restitution for value of stock
B. Injunctive / Specific Relief
a. Injunction: Available when P demonstrates that she will suffer irreparable harm and there is no adequate legal
remedy (Irreparable Injury Rule)
i. Note: for preliminary injunctions we do balance the interests of the parties, but that is only b/c we don’t yet
know who is right or wrong
ii. Land – it is considered unique, money can’t replace that piece of land
iii. “Judgment proof” D – D doesn’t have the money to pay damages
iv. If damages are as complete, efficient as injunction – “tie goes to damages”
b. Sigma Chemical: Damages are inadequate; impossible to calculate – injunction granted; Harris signed non-
compete, but then quit and stole clients; can’t calculate lost competitive advantage
c. Courts have broad power within reason to do justice – to do equity – always an ace card after you’ve
exhausted your legal remedies
C. Declaratory Relief
a. Declaratory Judgment Act (28 U.S.C. §§ 2201 and 2202) – parties may seek a declaration of their rights
without any coercive relief such as damages or an injunction
b. Rule 57 – Declaratory Judgments
i. Can have a trial by jury
ii. Doesn’t have to be only available relief
iii. Court can order a speedy hearing and may advance it on the calendar
c. Used in all types of litigations – most often in patent and insurance
i. Two exceptions: State and federal taxes
ii. Can test constitutionality of legislation – but – must have an actual case or controversy (under Article III)
d. Jurisdictional problems:
i. Declaratory relief actions do not fit comfortably inside the Well Pleaded Complaint Rule
ii. Rule: ***If either party could state a claim for coercive relief that would arise under federal Jx, then
an action for declaratory judgment will “arise under” federal law
e. Non-Jurisdictional Problems:
 10
i. Must the D always counterclaim to protect her interest? (if it arises out of the same transaction or
occurrence)
ii. Who has burden of proof?
iii. Jury trial ok?
D. Provisional / Preliminary Injunctive Relief
a. Permanent Injunction: after a claim has been adjudicated on the merits
b. Preliminary Injunction: sought before an adjudication on the merits
i. Usually lasts during the pendency of the case – until the case is resolved on the merits
ii. Must show probable success & possibility of irreparable injury, or that balance of hardships tips
sharply in P’s favor
1. William Ingliss Baking: Preliminary Injunction Rules: need:
a. 1) Comparative irreparable harm if injunctive relief is not granted
b. 2) Likelihood of success on the merits
i. multiply each side’s chance of winning by their irreparable harm
c. 3) (sometimes) Granting the injunction is in the public interest
iii. Alternative Test: If the harm that may occur to the P is sufficiently serious, it is only necessary that there
be a fair chance of success on the merits
iv. P usually must post a bond – this is the D’s only remedy in the event of a P loss
c. Temporary Restraining Order: Type of Preliminary Injunction – but asking even sooner
i. Asking in anticipation of filing an lawsuit – most preliminary of Preliminary Injunctions
ii. Often ex parte
iii. Will stay in place for a week or two – only long enough to get a preliminary injunction
d. Due Process Concerns
i. Fuentes v. Shevin: except in unusual circumstances, prejudgment seizure of a debtor’s property without
notice and an opportunity for a hearing is unconstitutional; repo case, stove/stereo
ii. Matthews v. Eldridge Balancing Test: how to determine how much process; Balance these Factors = cost
benefit calculation
1. Private interest that will be affected/deprived by the official action
2. Risk of erroneous deprivation of such interest through procedures used, and probable value,
if any, of additional/substitute procedural safeguards
3. Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional procedural safeguards would entail
E. Financing Litigation
a. American Rule: each party pays own fees
i. winner is made less than whole b/c some of damages goes to paying fees
ii. permits litigants with tenable but uncertain (or unpopular) cases to invoke the legal system w/o fear of
having to bear expenses of other side’s fees
iii. Rule 54 – loser pays costs
iv. Rule 68 – loser pays costs made after a settlement offer if offer is greater than final judgment amount
v. 28 U.S.C. § 1920: costs include: clerk/marshal fees, court reporter fees, printing and witnesses fees, copies
of papers fees, docket fees, court appointed experts, interpreters
b. English Rule: losing party pays both own fees and winning party’s fees; in purest form – fully compensates winner
c. Financing Mechanisms:
i. Hourly fee (most common), Flat Rate (for predictable work – like wills), insurance, contingency fee
(sliding scale based on length of suit), public subsidies and professional charity (legal aid)
ii. Generally:
1. Rich Ps – can pay hourly, and sometimes still use Contingency Fee
2. Rich Ds – can pay hourly, and sometimes have insurance to cover
3. Poor Ps – can use Contingency Fee
4. Poor Ds – legal services, legal aid – pro bono service/government funding
d. Fee Shifting: Way to move attorney fees to loser pays
i. Can shift by contract, by statute, by common law (public interest cases)
ii. Common Fund: named representative gets fees paid for; only works where there is a fund created
 11
e. Fee Shifting by Statute: Usually authorize courts to award fees to parties “in any action which has resulted in the
enforcement of an important right affecting the public interest” * Enforcement of Civil Rights *
i. Evans v. Jeff D.: D’s offered a settlement granting virtually all of the injunctive relief, but with a waiver
of fees – acceptance of this waiver not violation of statute (Prevailing Parties in this sort of case (Civil
Rights) can be awarded attorney’s fees)
1. Prohibiting waiver could impede vindication of civil rights by reducing attractiveness of
settlement (Marek v. Chesney)
2. May recover more through settlement than trial – and do so earlier and cheaper
3. Rule 23(e) wisely requires court approval of the terms of class action settlements to ensure fair
treatment of class members
4. Fee waivers can be refused when:
a. D had no realistic defense on the merits, or
b. If the waiver was part of a vindictive effort to teach counsel not to bring such cases
ii. Buckhannon Board & Care Home v. W. Virginia Dept of Health & Human Services: Unilateral decision by
D to change conduct in a way that “moots” the case; were being told to shut down b/c they violated state
regulations; state repealed regulations; Prevailing Party “Rule”: can get fee shifting if:
1. Judicial action – court has to be involved in the resolution of the lawsuit
2. “Judicially sanctioned change in the legal relationship of the parties”
3. Winning on the merits counts; Consent decree of a settlement counts
4. Note: Catalyst theory (winning b/c suit caused the D to amend their actions according to relief
sought) is not applicable – exactly what happened here
5. Note: almost all appellate courts used catalyst theory – it was like stare decisis
Pleading
A. Pleading: Formal process by which factual allegations are communicated to the court and the other parties
a. Complaint (pleading) and Answer (responsive pleading): Notice pleading – informative pleading
i. Rule 8: premised on idea that the purpose of pleading is to put others on notice of what is going on;
include as much as is necessary to inform
b. Pleadings must do two things:
i. Invoke, at least by reference, a body of substantive law;
ii. Sketch a factual scenario that, if shown to be true, falls within that body of law
c. Two Types of Pleading Failures: 12(b)(6)
i. 1) Not stating enough facts to constitute a legally actionable claim (FACTS)
1. Leave to Amend allowed: Court will usually give the P an opportunity to provide additional facts
ii. 2) P’s legal theory doesn’t work (LAW)
1. More than half of 12(b)(6) motions are this
2. Leave to Amend usually not allowed: can’t fix a problem in the law with more facts (unless they
are reasonably evidentiary)
3. Haddle v. Garrison: legal theory did not constitute an actionable claim
d. Haddle v. Garrison (1996): Law not sufficient; H is an at will employee – precedent states that he has no
constitutionally protected interest in continued employment – no actual injury; dispute is about interpretation of law
i. 12(b)(6): attacks the legal sufficiency of the claim; “even if everything you allege is true, the law affords
you no relief; P can prove “no set of facts in support of his claim which would entitle him to relief”
ii. Haddle v. Garrison (1997): appeal – dismissed on same grounds (need en banc to overturn)
iii. Haddle v. Garrison (1998): appeal to USSC – overturned:
1. Interpretation of “property interest” wrong – it is not the loss of the job, it is the right to avoid
third party interference in employment relations
B. Complaint:
a. Rule 8(a): Claim for Relief: Pleading that states a claim for relief must contain:
i. (1) allegation of jurisdiction;
ii. (2) short and plain statement of claim showing that pleader is entitled to relief; and
iii. (3) demand for judgment (relief sought)
iv. Exception: Rule 9(b) require pleading with particularity the circumstances constituting fraud or mistake
(Malice, intent, knowledge, and other condition of mind of a person may be averred generally)
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1. Requires the “time, place, and nature” of the misrepresentations
2. Purpose of 9(b) is to afford a litigant notice of the claim and factual ground
v. Stradford v. Zurich Insurance Co. (2002): Dentist is suing the insurance company for additional claims
after Company had already paid some – “business interruption”
1. Ins. Co. counterclaimed: Dentist “knowingly and willfully devised a scheme and artifice… to
defraud D’s & obtain money by false pretenses & representations”
2. Problem: Rule 9(b): allegations must be stated with “particularity the circumstances constituting
fraud or mistake” – Z needed more detail; applies b/c of presence of fraud – exception to Rule 8
3. Accused must have notice of which claim is alleged to be false
4. Z is saying that S lied about the timing – Z has already offered to fix the lack of particularity by
amending its complaint
5. So S wins on his 9(b) attack – but Court affirms ability of Z to file the amended complaint
b. Rule 8(d): allows pleader to set forth inconsistent claims or defenses
c. Challenge legal sufficiency of complaint with 12(b)(6) motion to dismiss
i. Not enough facts to constitute a legally actionable claim
ii. Legal theory does not constitute an actionable claim (Haddle v. Garrison)
d. Rule 11 (sanctions): triggered by signing/filing pleading, motion, or other papers
i. 11(b): Standards: after a reasonable inquiry, attorney believe document is not being presented for
improper purpose, claims/defenses are not frivolous, there is evidentiary support for this claim, and
denials are warranted
ii. Procedure: Court may impose Rule 11(c) sanctions by attorney request or on own initiative
1. if by attorney request, 21 day safe harbor provision applies (Rule 11(c)(2))
iii. Walker v. Norwest: No diversity of citizenship – filed in federal court based on diversity
1. Law is clear that it is P’s burden to establish Jx
2. Court: misunderstanding of diversity – complaint mentions minimal diversity and not complete
3. Court: Rule 11 doesn’t require you to prove anything – just allege reasonable things – can do it if
you need discovery to back up your allegations
iv. Rule 11 Limitations: Christian v. Mattell, Inc. (2003): Problem is a factual misrepresentation; P alleged
that Claudene doll’s copyright predated Barbie’s copyright; court also cited P’s atty’s conduct
1. Easy because of the stamp on the back of the Barbie head of a prior date
2. No reasonable investigation – violates Rule 11
3. Violations of Rule 11 must be based only on paper violation in pleadings
e. Allocating the Elements:
i. Burden of pleading: one must allege that element of the claim or defense
ii. Burden of production: one must produce evidence that tend to demonstrate the proposition at stake
iii. Burden of persuasion: one must persuade the trier of fact that one’s version of the facts is more likely
than not to be true
1. Note: usually they go together
iv. Gomez v. Toledo (1980): Police officer fired; alleges D fired him in retaliation for whistleblowing; D has
burden of pleading/proof/persuasion that he acted in good faith in his actions – and was thus immune
as a government officer
1. Official acting under color of law is immune from suit if he didn’t know he was doing something
illegal
2. Statute did not set out immunity as AD or part of CoA; but facts are in control of D and nothing
in statute suggested this was part of the CoA
3. Note: Qualified immunity now requires: objective reasonableness of D’s actions
v. Note: Statute of Frauds and Statute of Limitations have built-in affirmative defenses – so the P might
be required to negate them in the complaint by some additional allegation (fraud, estoppel, waiver)
C. Response to Complaint
a. Pre-answer Motions:
i. Rule 12(b) Motions: may be raised as pre-answer or with answer
1. (1) Lack of subject matter jurisdiction; (opposite of 8(a)(1))
2. (2) Lack of personal jurisdiction;
3. (3) Improper venue;
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4. (4) Insufficient process;
5. (5) Insufficient service of process;
6. (6) Failure to state a claim on which relief can be granted; (opp of 8(a)(2));
7. (7) Failure to join a party under Rule 19.
ii. Rule 12(e): Motion for a More Definite Statement; Rarely used, if you need more info, move for a 12(b)(6)
iii. Rule 12(f): Motion to Strike (rarely used)
1. Used to strike portions of the claim that are unsupported by law, redundant, immaterial,
impertinent, or scandalous
iv. Rule 12(g) and (h): Consequences of making a Rule 12 motion (or not making)
1. If you fail to make a motion when you can – then you usually waive it
2. 12(h)(1): Waivable defenses: lack of personal Jx, improper venue, and insufficient process/service
of process
3. Exceptions: 12(b)(6); lack of SM Jx, failure to join a party; failure to state a legal defense
b. Answer:
i. Rule 8(b):
1. D must state in short and plain terms its defenses
2. D must admit or deny the allegations
a. General denial: D in good faith denies all allegations of complaint
b. Specific denial: D admits or denies each allegation in whole or in part
3. If D lacks sufficient information, D can so state & that statement is treated as a denial
4. If D fails to deny an allegation it is admitted where a responsive pleading is required
5. Denials: Zielinski v. Philadelphia Piers, Inc. (1956): PPI used a general denial, but part of the
allegation was correct; too late for Z to go after real D
a. Rule 8(b): when a pleader intends in good faith to deny only a part… he shall specify so
much of it as is true & material & shall deny only the remainder
b. Judge deemed something not true to be true – basically held PPI to their denial and
allegations; both PPI and CC have the same insurance – same pocket pays in either case
ii. Rule 8(c) Affirmative Defenses: party must affirmatively state any avoidance or affirmative defense,
including:
1. Accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by
fellow servant, latches, license, payment, release, res judicata, statute of frauds, SoL, waiver
2. List is not exhaustive
3. Layman v. Southwestern Bell Telephone Co. (1977): L sued S alleging trespass on her land and
installation of underground wires/cables without her consent; S’s defense was that they had an
easement, but did not raise as AD
Affirmative Defense must be raised in the pleadings; Rule 8(c): see list – what if not on list?
a. Surprise Principle: if the information would be a surprise to the P
b. “New Material” idea: if you are conceding P’s allegations & bringing in something new
c. Careful – pleading an issue as an affirmative defense often means you have the burden of
proof; you wouldn’t if you simply denied
iii. Rule 8(e)(2): Consistency in Pleading: a party may set forth 2 or more statements of a claim or defense
alternately or hypothetically and a party may also state as many separate claims or defenses as he has
regardless of consistency
1. Okay to have this inconsistency b/c the system requires lawyers to make allegations before they
are certain of the facts and the law
c. Reply: if answer contains a counterclaim designated as such, must reply per Rule 7(a)(3)
d. Amendments: Two opposite goals: easy amendments to allow pleadings to reflect changes; avoiding prejudice
– at some point other party must be able to make decisions on how to present its case
i. Rule 15(a): allows amendment before response or within 20 days of serving the pleading if a responsive
pleading is not allowed and the action is not yet on the trial calendar; otherwise can amend by leave of
court or written consent of adverse party
1. To deny leave to amend – “prejudice must be shown”
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2. Beeck v. Aquaslide ‘N’ Dive Corp. (1977): A allowed to amend pleading to state that slide was
not theirs; liberal leave to amend b/c unfair to punish A for damage done by a slide it never
manufactured; A couldn’t really defend on the merits; can’t defend someone else’s product design
a. Possible that Beeck could sue real manufacturer: If your fraud makes it harder for
people to sue you – then you are not protected by the SoL
ii. Rule 15(b): gives judicial discretion to amend during trial; should freely give leave when justice so
requires
iii. Rule 15(c): amendment relates back to date of original pleading “whenever the claim or defense asserted
in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading”
1. Rule is somewhat liberal 20 days or before responsive pleading served – usually get one time;
Otherwise you need permission but they should give it if it is in the interests of justice
2. Test is NOTICE: Whether original complaint gave notice to D of claim now being asserted
3. Moore v. Baker (1993): M consulted B about a blockage of an artery; B recommended surgery and
warned her about risks; M signed a consent form; Operation went badly – M severely and
permanently disabled; M sued B for violation of GA’s informed consent law; B moved for SJ on
the issue of informed consent; A few weeks later… M moved to amend her complaint to assert
allegations of negligence (SoL had run)
a. Negligence did not relate back to original date of original pleading b/c original complaint
did not give B notice of possible negligence claim (usually N claim would go first)
4. Bonerb v. Richard J. Caron Foundation (1994): B was a patient at R (rehab) & was playing
basketball during mandatory exercise, B was injured when he slipped and fell; negligently
maintained the BB court; B moved for substitution of new counsel; then B moved to amend
complaint to add new cause of action for counseling malpractice
a. amendment which changes legal theory is appropriate if the factual situation upon
which the action depends remains the same and has been brought to the D’s
attention by the original pleading
b. Allegations in the original complaint contain notice that the P thought the D’s
rehabilitation and counseling care rendered was negligently, carelessly, and
unskillfully performed

Discovery
A. Formal process to obtain evidence from the other party or nonparty witnesses that will be useful at SJ or during the lawsuit
a. Liberal generous discovery rules are in response to Rule 8 (short and plain statement)
i. Allows screening out of losing cases
b. Purposes of Discovery:
i. Preserve information that may not be available at trial
ii. Narrow the dispute that is reflected in the pleadings, so we really know what is/isn’t in contention
iii. Allow each side to get the best available evidence to prove its version of the truth
1. You have a right to “every man’s evidence”
2. If both sides are given the most leeway to make the strongest argument they can, from that
clash/competition the objective best answer or truth will emerge
c. Generally driven by the parties – not really controlled by the courts until or unless someone complains that the other
side is not playing fair
d. Consumes a huge percentage of the time/money spent on a case
e. Creates potential for abuse – May have to match the aggressiveness of the other party in order to serve your client
f. Can’t have judicial oversight of all discovery b/c that would overtake all judicial work
B. Scope of Discovery
a. Rule 26(b)(1): Relevance: to a claim or defense, or with judicial approval – to the subject matter
i. Allows the parties, w/o court approval, to seek discovery “regarding any matter, not privileged, that is
relevant to the claim or defense of any party”.
1. If party shows “good cause” the court may grant even broader discovery “of any matter relevant
to the subject matter involved in the action”
2. Relevant if “the discovery appears reasonably calculated to lead to the discovery of
admissible evidence”
3. Irrelevant – it is presumptively non-discoverable (there are exceptions)
 15
ii. Davis v. Precoat Metals (2002): discovery requests must be narrowly tailored to the specific allegations
of the P’s complaint; Case for racial discrimination; Discovery order was about other discrimination
issues, but was confined to place, time frame – okay
1. Court said it might not be admissible but relevant to show pattern
2. Chavez distinguishable b/c that P wanted complaints for employees who did not work at the same
place (company wide request)
3. Sidari distinguishable b/c that P wanted all types of unequal treatment complaints – not just the
same type
iii. Steffan v. Cheney (2002): S resigned from US Naval Academy after a board recommended he be
discharged; recommendation based solely on S’s statements proclaiming himself a homosexual
1. During the Lawsuit – the Navy asked him if he had engaged in homosexual conduct during or
after he was a midshipman
2. Rule 37: Failure to make disclosures or cooperate with discovery:
a. Failure to answer a question can be considered contempt
b. Sanctions can be brought under 37(b)(2)
c. No sanction if its imposition was based upon an error of law
3. His conduct is irrelevant b/c the legal theory of the government was based on his orientation
– NOT his conduct
iv. Privileged information is not subject to discovery
1. presumptively non-discoverable (privilege can be expressly or impliedly waived, but not abused)
2. privilege only shields specific source, not underlying facts; attorney-client, doctor-patient, etc.
3. Note: all employees of a corporation are covered by corporate counsel-employee privilege
b. Rule 26(b)(2) Limitations: court may limit discovery if it is unreasonably cumulative or duplicative, obtainable
from another source more convenient, less burdensome, or less expensive, or the burden or expense
outweighs its likely benefit
C. Discovery Procedures:
a. Required Disclosures: Rule 26(a)(1): parties must give names of witnesses and descriptions of documents to
support claim or defense, damages calculation, and insurance agreement to opposing party w/o request
i. Rule 16(b); within 90 days after a D’s appearance or 120 days after service, judge shall hold a “scheduling
conference” to discuss discovery and pretrial proceedings
ii. Rule 26(f): requires parties to meet without the judge to discuss the case “as soon as practicable and in any
event at least 21 days before a scheduling conference”
iii. End result:
1. parties exchange the required disclosures at least 7 days before scheduling conference, and at the
latest, 4 months after the complaint is served on the D
2. Usually: where D has appeared, the disclosure will occur no later than 85 days after that
appearance
iv. Exceptions: no Disclosure if:
1. small case, well-developed record, not represented by counsel, very large case (judicial
supervision will displace the Rules)
b. Interrogatories (Rule 33): much cheaper b/c one can inexpensively frame a set of appropriate questions, send it to
the adverse party, and wait for answers
i. drawback: can’t follow up evasive answers; usually only good for fairly routine specific information
(which usually is already discovered in the required disclosures); can only ask 25 Q’s w/o permission of
court or agreement from adverse P
ii. May only be sent to a party – non-party witnesses must be deposed
iii. Main Purpose: to discover the people you want to depose
c. Depositions (Rules 28, 30, 31, 32): more expensive and very useful; can follow up evasive questions and explore
new avenues of inquiry
i. drawback: $$ - lawyers, office, recording; no judge – have to file “Motion to Compel” if other side isn’t
answering; drawback: total number of depositions taken by one side (P or D) may not exceed 10 w/o
permission of the court; no deposition may exceed a day of 7 hours, no person may be deposed a second
time w/o permission of the court or the other side
d. Deposition on Written Questions (Rule 31): lawyer sends written Qs to the court reporter who asks the questions;
cheaper than full depositions
 16
i. drawback: harder to frame follow up Qs; hard to follow leads and guide deponent; what happens if there is
a disagreement about whether a Q is justified?
e. Requests for the Production of Documents, Things, and Land (Rule 34):
i. Rule 34 permits inspection of land and objects; obtaining documents differs depending on party or
nonparty:
1. Party: send a Rule 34 request
2. NonParty: similar request, but embodied in a subpoena under Rule 45(a)(1)(3)
ii. NO limits on the number of document requests
iii. Can have very broad requests: seek all documents in the custody or control of the responding party that
“refer, relate or pertain in any manner” to subject X
1. Issue of who bears the costs?
f. Physical and Mental Examinations (Rule 35): requires a special application to the court and a showing of “good
cause”; When the mental or physical condition… of a party… is in controversy… the court… may order the party
to submit to a physical or mental examination. Order may be made only on motion for good cause shown and upon
notice to the person
i. Schalgenhauf v. Holder (1964): bus/semi accident; party moves for physical and mental examinations of S
(bus driver); court holds most of the exams are unwarranted under Rule 35 (only eye exam survives)
1. In Controversy: usually stems from a P placing their injuries in controversy in the pleadings,
OR from a D placing their condition in controversy as support or in defense of a claim
2. Good Cause: Affirmative showing that there is reason to believe that there is a medical or mental
problem that needs to be explored
3. Note: standard for Rule 35 similar to fraud standard in Rule 9
g. Rule 36: Requests for Admission: Must admit issues that are true, alternatively: Can Answer and specifically deny
i. If you fail to admit or deny within 30 days, Rule suggests that the requested facts be deemed admitted
(some courts follow this)
ii. If they don’t admit a fact and you prove it to be true at trial – court can order you to be reimbursed for the
costs of proof (Not very common, not often given)

D. Protective Orders:
a. Rule 26(c): gives a judge power to enter “any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.”
b. Stalnaker v. Kmart Corp. (1996): A party is entitled to request a protective order to preclude any inquiry into
areas that are clearly outside the scope of appropriate discovery
i. But that party has the burden to show good cause for the protective order
ii. Must submit a particular and specific demonstration of fact, as distinguished from stereotyped and
conclusory statements
iii. Kmart granted protective order; but only to the terms of the settlement (real issue that K wanted to protect
(D’s sexual harassment info) is discoverable under the order)
iv. Tension btwn protecting people from harassment/embarrassment/expense and justice
E. Work Product Protection:
a. Rule 26(b)(3): Work Product: Materials prepared that are insulated from discovery:
i. 1) have to be “prepared in anticipation of litigation”
ii. 2) includes consultants, accountants, experts
iii. 3) Exception: substantial need for the materials to prepare case; cannot, without undue hardship, obtain
their substantial equivalent by other means
b. Hickman v. Taylor: P sued for wrongful death when husband died in a tugboat sinking; Attorney for tugboat owners
conducted an investigation and interviewed survivors/witnesses about the sinking
i. P wanted to get a look at the written statements of the witnesses given to the attorney, wanted attorney’s
memos describing and analyzing the interviews, wanted to depose attorney about the investigation and
interviews
ii. This stuff is totally relevant, and not privileged – communications were with non-clients
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iii. Court creates doctrine called “work product” that is designed to insulate from discovery materials that
include or reflect the lawyer’s own thoughts, instincts, analysis, etc.
iv. Maybe the actual statements might be discoverable
c. Every time you write up a document, sprinkle in some of your own impressions (weave them in to protect the
document from disclosure)
d. Record your impressions as you do an interview – your value added
e. Stamp the words “work product” on all documents
F. Non-Compliance & Sanctions (Rule 26(g) and Rule 37):
a. Rule 37: punishments range from awards of expenses, to dismissals of an entire case or the entry of default
judgment; Two Types of non-compliance:
i. Rule 37(d) and 37(g): failure to attend own deposition, serve answers to interrogatories, or respond to
request for inspection (retail violations)
ii. Rule 37(b): failure to comply with a court order (serious)
b. Rule 26(g): requires parties to sign all of these documents (Rule 11 sanctions) and punishes the parties for
unjustified requests and refusals; suggests that attorneys fees will be an appropriate sanction
c. Why do People Engage in Discovery Abuse?
i. Profitable; consumes a large chunk of the lawyer time/fees on a case
ii. if you can impose costs on the other side, that by virtue of the American Rule, are likely to stay on that side
– then that works to your advantage
iii. Each side values a case according to a number of variables:
1. P: value = likelihood of success on the merits * likely recovery amount less fees and costs
2. D: value = likelihood of P’s success on the merits * what an award would likely look like if D
does lose plus the costs of litigation
iv. Cases settle when a D’s expected exposure is as high or higher than the P’s expected recovery
1. Each side can influence the likelihood of an overlap to the extent that each side can influence the
other side’s costs without incurring their own
d. Courts do not like getting involved in Discovery Abuse – often results in wrong side being punished, and possibly
overly-punished
G. E-Discovery:
a. Adds difficulties to the discovery process in both scale and concept
b. 2006 Rules Revisions sought to address these new questions by (4 steps):
i. added explicit mention of digital materials to make it clear that document production is same under the
Rules whether it is hard or digital
ii. provided mechanisms for sampling the accuracy of digitally produced info
iii. addressed special problems of digitized information: some info requires software, some info is periodically
written over in normal operations
iv. sought to bolster the pre-discovery planning process to eliminate as many of these issues as possible though
early meetings, agreement, and cooperation
Resolution without Trial
A. Statistics
a. Out of every filed complaint – only 2% result in a full trial (1 in 50)(state and federal courts)
i. Rate of Adjudicated cases has remained constant – 30% of all filings lead to adjudication
ii. Adjudication means a resolution of the case on the merits by the court
iii. 12(b)(6) – motion to dismiss for failure to state a claim; Summary Judgment
b. 70% - ?
i. Dismissal for lack of personal jx/subject matter jx/etc.
ii. Settlement or Consent decree
iii. There are limits on parties ability to keep things from public view
B. Default Judgments:
a. Rule 55(a) when a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default
b. Rule 55(b) entering default judgment
i. (1) By the Clerk: if for a sum certain; clerk must enter judgment for that amount and costs against a D who
has been defaulted for not appearing (exception for minors, incompetents)
ii. (2) By the Court: all other relief sought; court may investigate to determine proper relief (P must prove)
c. Rule 55 (c) court may set aside an entry of default for good cause
i. Exceptions: Rule 60(b): court may relieve a party from a default judgment if there is:
1. Mistake, inadvertence, surprise, excusable neglect
 18
2. Newly discovered evidence
3. Fraud, misrepresentation or misconduct by other party
4. Judgment void
5. Judgment satisfied, released, discharged
6. Any other reason that justifies relief
d. Peralta v. Heights Medical Center (1988): D guaranteed employee’s debt to Heights; D must have actual notice of
the action in order to defend himself (or settle/satisfy the claim); D received notice but it was after statutory period –
so under TX law it doesn’t count; can’t have DJ without due process
i. Unfairness stems from D’s reliance on TX law – TX violated D’s DP rights by leading D to believe that
they take their rules seriously and then they didn’t; Mixed messages that TX sent him
ii. Didn’t matter that he was going to lose anyway
e. Note: Most DJ’s are not challenged
C. Involuntary Dismissal:
a. Rule 41(b): If the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss
the action or any claim against it.
b. Dismissal operates as an adjudication on the merits unless it is one for lack of Jx, improper venue, or failure to
join a party under Rule 19.
D. Voluntary Dismissal:
a. Rule 41(a)(1): P can dismiss w/o court order if before the D answers or moves for SJ; or if all parties agree; without
prejudice (can be refiled)
b. Rule 41(a)(2): all other P requested dismissals must be by court order; also without prejudice
E. Negotiation and Settlement:
a. Contract/Release: simplest form of settlement; usually involves agreement to drop suit for money
i. Usually do not need court approval to settle – exceptions: class actions, minors, multi-Ds
ii. Enforce by usual contract grounds or summary judgment
1. Defendant:
a. Sue for breach of contract
b. Also should move to dismiss her claim and to recover for damage to their reputation
c. Answer – plead affirmative defense of accord and satisfaction or waiver, then
d. File a summary judgment motion – under the settlement agreement
2. Plaintiff:
a. Sue for breach; sue D for original claim
b. Consent Decree: Court embodies settlement in a court order
i. Enforce with contempt charge (for violating court order)
ii. No new suit needed; Go back to same judge that was involved (fed if fed; usually breach of K is only state)
iii. Remedies are more draconian than for breach of K
iv. Note: Consent decree is not easy for D to live with (if they are interested in privacy)
1. Would have to have a complaint, public
2. Could negotiate what is in the complaint – could have something that doesn’t make the D look bad

c. Contracting for Confidentiality: Kalinauskas v. Wong (1993): Some parts of settlements may not be held as
confidential; sexual harassment suit against Caesar’s, want info from settlement of similar case:
i. Liberal Nature of Discovery: Rule 26(b)(1): parties may obtain discovery regarding any matter, not
privileged, which is relevant to the claim or defense of any party (“right to every man’s evidence”)
1. Purpose is to secure the just, speedy, and inexpensive determination of every action
ii. Conflicting interests: favoring finality of litigation and secrecy of settlements v. serving society by
providing a public forum for issues of general concern
iii. There is concern regarding concealment of legitimate areas of public concern – this grows more pressing as
additional individuals are harmed by identical or similar action
iv. Compare that to Fuentes – bigger policy issue of who loses; might decrease settlement opportunities for
future litigants; Also means that P’s will have their painful pasts public for other Ps
v. Compare to Kmart – sexual harassment one – limited but not really
d. Note: Lockhart v. Patel: judges can twist arms to get parties to settle; but fine line between telling someone to be
openminded and telling someone you have to compromise; at most – a judge can order you to listen
 19
e. Mashushita Elec. Industrial Co. v. Epstein (1996): P’s sue M over M’s acquisition of MCA (P’s are shareholders of
MCA); P’s filed two separate lawsuits: Federal: (CA) Federal Securities laws (Exclusive Federal Jx for Federal
Securities issues) + State: (DE) state law fiduciary breaches; State court lawsuit settles: global settlement that
encompassed the Federal claims
i. Whether a federal court may withhold full faith and credit from a state-court judgment approving a
class-action settlement simply because the settlement releases claims within the exclusive Jx of the
federal courts? No.
ii. §1738: Full Faith and Credit Act: Federal court must give judgment the same effect that it would have in
the courts of the State in which it was rendered; DE would respect consent decree, fed court must too
iii. Even when exclusively federal claims are at stake, there is no universal right to litigate a federal claim in a
federal district court
f. Mediation: assisted negotiation – aids communication; no coercive interest; Mediator only succeeds if parties agree
i. Often courts/legislatures support it – Cal. Civ. Code requires all cases with less than $50G’s in controversy
to go through mandatory mediation before any trial can be calendared
ii. Federal District Courts must authorize, devise, and implement its own ADR program
iii. Frequent in Family Law disputes
iv. Positional Mediation: asking parties how much they would take to settle
v. Interest Mediation: asking parties their goals
vi. Note: mediation discussions are usually privileged and not admissible
vii. Judges as Mediators:
1. Rule 16: Pretrial Conferences, Scheduling, Management
a. One goal is “establishing early and continuing control so that the case will not be
protracted because of lack of management”
b. 16(c) contains a shopping list of management techniques ranging from establishing time
limits to encouraging settlement
2. Alternative Dispute Resolution Act of 1998: requires FDCs to offer the parties, even after they
have filed a suit, alternatives to litigation, such as mediation or non-binding arbitration
a. Neutral Evaluation: reality check to parties expectations of the case’s merits; aids by
previewing litigation
g. Non-Binding Arbitration: parties required to present their cases to an arbitrator, who issues a decision (non-
binding unless parties accept it)
i. Summary Jury Trial: small jury chosen, parties present abbreviated cases; jury returns a non-binding
verdict which serves as a basis for further negotiation towards settlement
F. Arbitration: like litigation, but in front of a non-judge
a. Judicial Attitude about Arbitration has changed over time:
i. Beginning: skeptical; enforced them only reluctantly; Possibly based on bargaining power, courts wanting
to be central, etc.
ii. 50s – 90s: Embraced; encouraged; enforced terms, compelled arbitration, construed ambiguities in favor of
arbitration
iii. Now generally encouraged but with a note of wariness; unfairness, limits to remedies
b. Reasons to Arbitrate:
i. Permits the parties to design their own procedure
ii. Can control the applicable substantive law
iii. May be faster, cheaper, and more private
iv. Parties can ensure they have a decision maker who is experienced in the field, and/or eliminate the
vagaries in outcome that a jury may produce
v. Arbitrator may decide it more softly than a court (no winner takes all requirement)
c. Federal Arbitration Act: allows for enforcement of arbitration agreements in the federal courts
i. §2: agreements to arbitrate are valid as a matter of federal law
1. “shall be valid, irrevocable, and enforceable save for such grounds that exist at law or equity
for the revocation for any contract” (under general contract law principles)
a. Prevents a state from passing arbitration-specific contract law
b. FAA does not apply to all arbitration contracts – only contracts evidencing a transaction
involving “commerce”
 20
c. Congress needed some federal authority to step into the K area – using the Commerce
Clause
ii. §3 tells courts to stay a trial until such arbitration occurs
1. Doesn’t mention state courts – okay though: argue that this agreement is valid as a substantive
matter – and thus state courts have to respect the agreement
a. Federal substantive law regarding interstate commerce
b. Congress can pre-empt any state law that contradicts the FAA
iii. §4 tells courts that they may issue orders to direct that arbitration proceed (upon the motion of a party)
d. Limitations to Enforcement of Arbitration Clauses:
i. Nature of claims: “public disputes in private fora” (some statutory claims); doesn’t ensure that the public’s
interests are being served; but Court broadly endorses arbitration
1. Congress can choose to mandate a judicial forum for a statute, either through text, legislative
history, or by an “inherent conflict” between arbitration and the underlying purposes of the statute
(Floss)
ii. Procedural Unfairness in the Arbitration Process
1. Floss v. Ryan’s Family Steak Houses, Inc. (2000): FAA does not apply where there is no
contract under general K law – here there was no consideration
a. EDSI’s promise to provide an arbitral forum actually promised nothing at all – EDSI’s
right to choose the nature of its performance renders its promise illusory
b. Falls under §2 of the FAA – unenforceable b/c all contracts require consideration;
grounds in law or equity for the revocation
2. Lyster v. Ryan’s Family Steak Houses, Inc. (2001): L argued that the agreement was an
unconscionable adhesion contract – this fails: “a contract is substantively unconscionable if
there is undue harshness in the terms of the K” – no man in his senses and not under delusion
would make
a. L has failed to establish that undue harshness exists
b. Difference: diff state laws governed, different judges/courts, different arguments
iii. Courts usually enforce arbitration agreements – but recently they look harder at the fairness of the
procedures and will refuse to enforce those that are unfair
1. Unequal rights between parties
2. Inhospitability – based on costs, limitations on remedies
iv. Ferguson v. Writers Guild of America, West (1991): Illustrates that courts are generally very reluctant
to second guess the arbitrator’s procedures and substantive decision; Ferguson structure is very
specific to the entertainment industry
1. Lots of deference by the court
2. Procedures that are okay depends on the context
e. Final Thought - Arbitration
i. Many people lament the increased willingness to enforce arbitration provisions
1. 1) Concern is mostly over the little guy – unequal bargaining power, etc.
2. 2) Has also reduced by a huge chunk the number of cases that are brought and appealed in
the court system that can be used to fashion and revise the common law
a. Principles and guidance going forward comes from case law
b. If these cases are arbitrated they do not enter the common law

G. Summary Judgment:
a. Generally:
i. A method for disposal of groundless claims (or parts of claims) w/o incurring expense of a full-blown trial
 21
ii. Rigorous SJ standard b/c we are so liberal with pleading and discovery
iii. Facts concerning a claim or part of a claim are so one-sided as to evidentiary support, that we can examine
the paper documents (through pleading or discovery) and know from those documents that a trial on those
facts could come out only one way by a rational decision maker
iv. Idea: can resolve dispositive facts underlying a dispute conclusively without need for a full-blown trial –
efficiency would be served
v. Form of final judgment – loser is a loser on the merits for preclusion purposes
vi. Partial SJ: e.g., Can move for SJ on liability and leave damages for trial
vii. Reasons to move for SJ
1. Sometimes bring them even if you think you probably won’t win them
2. Other side has to respond to SJ to show what their best evidence is
3. Get their theory of evidentiary presentation
b. Rule 56(c): SJ should be granted if (based on paper record) there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
i. Material Fact: Depends upon the substantive law (torts, Ks) & theories of the parties
ii. Genuine Issue: Is the evidence such that a reasonable person/jury could look at both sides and rule for only
one side or could it go either way?
1. Key why SJ is different than 12(b)(6) – under 12(b)(6) P’s facts are assumed as true
2. Judge decides whether there is evidence to be weighed, not to weigh conflicting evidence
3. All conceivable inferences should be drawn in support of the nonmoving party
iii. Judgment as a Matter of Law: Showing all of the evidence is in your favor (can show that the evidence is
clear, but clearly against you)
iv. Purpose: to secure the just, speedy, and inexpensive determination of every action
v. Burden of Proof Matters: Party who has the burden at proof at trial has the same burden at SJ
Celotex Corp. v. Catrett (USSC 1986): widow suing asbestos company b/c of husband’s exposure to their
product; company moved for SJ b/c she could not show that her husband was exposed to their product
(element of her CoA)
1. Rule 56(c): mandates the entry of SJ, after adequate time for discovery, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial
2. Standard for SJ mirrors the standard for Directed Verdict under 50(a)
3. Moving party must identify the info which demonstrate the absence of a genuine issue of
material fact (absence of evidence to support the opponent’s claim), but do not need to negate
the opponent’s claim
4. Movant must make a showing supporting its claims insofar as those claims involve issues on
which it will bear the burden at trial
c. Rule 56(a) & (b) available for both person asserting a claim as well as for the person against which the claim is
asserted
i. D – much easier to obtain SJ; just has to show the evidence doesn’t support only one element
ii. P – has to prove elements of a cause of action (example: torts); much harder to show you have
overwhelming evidence of all elements than just one
d. Rule 56(e): if moving party satisfies 56(c) burden, responding party must set forth specific facts showing genuine
issue for trial (beyond allegations or denials in its own pleadings)
e. Bias v. Advantage International (1990): Issue is whether Bias (newly drafted NBA player and cocaine user) was
insurable for $1M b/c of cocaine use? (Bias died of overdose)
i. AI moved for SJ – alleged B would not be insurable, and even if he was insured, the insurer wouldn’t have
paid out (AI’s failure was harmless error)
ii. Rule 56(e): nonmovant must come forward with specific facts showing that there is a genuine issue for
trial (court must draw from the evidence all justifiable inferences in favor of the nonmovant)
1. Must be more than a showing that there is “some metaphysical doubt as to the material facts”
(Matsushita Elec.)
2. Bias’ Estate did not undermine the evidence of teammates witnessing drug use
iii. No genuine issue – SJ granted
 22

Trial
A. Right to a Jury Trial:
a. No constitutional right to a bench trial
b. Is there a statutory right to a jury? Is there a 7th A right to a jury?
i. 7th A not incorporated – therefore no requirement that states provide juries for civil cases (but most state
constitutions are analogous to 7th A, some go further)
c. Seventh Amendment: “In suits at common law, where the value in controversy shall exceed $20, the right of trial
by jury shall be preserved…”
i. Question of whether suit is at common law (law court, not equity)
ii. Note – only applies to Federal cases – States are usually less fond of jury trials
d. Rule 38(b): Right to a Jury Trial as under the 7th A; must demand a jury trial or waive the right
e. Generally: most newly created claims that seek money damages include right to jury trial
f. Patent Claims: traditionally heard by juries, USSC restricted them to judges b/c of the functional considerations of
ability to construe written documents and policy of uniformity
g. Size, Rules of Decision, Reexamination Clause
i. 6 jurors now constitutional
ii. Rule 48: Federal: non-unanimous okay if parties agree to accept their verdict
iii. State: non-unanimous sometimes okay (2-3 out of 12)
iv. Reexamination Clause (7th A): no fact tried by a jury, shall be otherwise reexamined in any Court of the
United States, than according to the rules of the common law.”
1. Even so, Courts have substantial power to overturn jury verdicts that are w/o evidentiary support
h. Historical Test: whether a given claim lay within the Jx of a C/L court in 1791
i. “Nature of the issue to be tried” Does P (or D) have a claim that can only be brought in equity?
ii. “Nature of the remedy” Does P (or D) want injunctive or other equitable relief?
1. equitable relief: injunction, K rescission/cancellation/reformation, accounting, quiet title,
restitution
2. legal relief: damages, ejectment (court order requiring sheriff to remove people from premises),
replevin (court order requiring sheriff to return an item to its owner), writ of mandamus (court
orders public official or court to perform an act), habeas corpus
i. Chauffeurs, Teamsters, & Helpers, Local No. 391 v. Terry (USSC 1990): Ee who seeks relief in the form of back
pay for a union’s alleged breach of its duty of fair representation has a right to a jury trial; no mention of a right
to jury from statute (vague – didn’t even mention the CoA); problem was that this claim did not exist in 1791
i. Historical Test: compare this action to 18th C (1791) actions brought in courts of England –
“Nature of the issue to be tried”
1. Like action by trust beneficiary against a trustee for breach of fiduciary duty (equity)
2. Unlike an action for legal malpractice (law) b/c client controls the actions of the attorney
a. Replaceability & Control: Client can fire an attorney, but Both Unions and Trustees
cannot be fired by beneficiaries and union members
3. However there is another issue: Er’s breach of the collective bargaining agreement – which is
like a breach of K claim – (law in 1791)
ii. Remedies Test: “Nature of the remedy”; Ee seeks damages – a traditional “law” remedy;
1. equitable damages include: Restitution, Incidental to or Intertwined with injunctive relief
2. None here – back pay was not held by Union, no ill-gotten gains
iii. Note: Remedies Test is more important to the 7th A determination
j. Beacon Theatres: held that in a case with overlapping equitable and legal claims and counterclaims, a party
could get a jury trial on any legal claims;
i. Rule: jury trial should precede any hearing on equitable claims and that the jury’s findings would
control as to any common factual issues
k. Amoco Oil Co. v. Torcomian (1983): illustrates Beacon Rule; dispute over alleged franchise agreement (T argued) or
lack thereof; both sides plead legal and equitable remedies; new approach to deciding whether combined E and L
claims lead to a right to a jury trial:
i. Consider whether the main claim seeks legal relief (A has some)
1. Use federal law to decide what is legal – not state law
ii. Consider whether the counterclaim seeks legal relief (T has some)
iii. Rule: Mix of equitable and legal claims doesn’t destroy right to jury for legal claims
 23
B. Choosing Juries:
a. 28 U.S.C. §1861: Litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross
section of the community – inclusive ideal
b. 28 U.S.C. §1863: Random jury selection from voter registration or other approved list
c. 28 U.S.C. §1867(d): Method for Challenging Jury Pool; if true, these allegations would constitute a substantial
failure to comply with the provisions of §1861; then movant may depose the jury commissioner and have access to
documentary records
C. Challenging Individual Jurors:
a. Principle of the Unbiased Trier
b. For Cause Challenges: unlimited; must state a reason involving the prospective juror’s bias
c. Peremptory Challenges: limited, no reason needed (28 U.S.C. §1870)
i. Limit: can’t use them based on race alone (Batson: criminal case; striking black jurors)
1. equal protection clause; Edmonson extended to civil cases: extended to gender for government
actors (J.E.B.); may have to justify your peremptory challenge w/ a nondiscriminatory justification
ii. Purkett: impossible to make sure, weird hunches were good enough justification in this case; need a
pattern of discrimination
d. Thompson v. Altheimer & Gray (2003): TC judge refused to strike a juror for cause, after she had admitted a bias
towards employers in a similar situation as Thompson’s
i. Rule: If a juror can be shown to be biased, and should have been struck for cause, then the appellant
is entitled to a new trial
ii. Denial of the right to an unbiased tribunal is one of those trial errors that is not excused by being shown to
have been harmless
iii. Abuse of Discretion review: Judge’s failure to elicit from juror a statement that she could be open-minded
was reversible error
iv. Rule: this would not apply if the P still had peremptory challenges
f. Lying Jurors: can challenge a verdict if: a juror failed to answer honestly a material question; a correct response
would have provided a valid basis for a challenge for cause
g. Voir Dire – two purposes: lets lawyers begin presenting their cases; lets the parties develop a list of jurors they
would like to peremptorily challenge
h. Jury Reform Movement
i. Reduce or eliminate peremptory challenges
ii. Paying jurors a living wage while on juries
iii. Devise system so that people know by the end of the morning whether they have to stick around for the rest
of the week (that happens in CA)
iv. Allowing jurors to take notes
v. Allow jurors to ask questions of the witnesses
vi. Inform the jury of the elements of the cause of action at the beginning of trial (instructions only occur at
the end, right before deliberation)
vii. Jury size (federal only 12; states vary): USSC has upheld state juries as small as 6
viii. Jury Unanimity: Constitution doesn’t require unanimity
ix. Limit length of trial to respect jury time (OJ took over a year)
x. Could then limit jury service (1 wk per 5 yrs)
B. Judges:
a. Generally no peremptory challenges: some states permit peremptory challenges of judges through affidavit
alleging that the judge is prejudiced
b. Challenges for Cause: Federal (28 U.S.C. §§ 144 & 455):
i. §455(a): judge shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned; appearance of bias
1. Reasonable: based on objective reasonableness
2. 455 (e) Conflicts of interest within this subsection may be waived provided it is preceded by
a full disclosure on the record
ii. §455(b): judge should disqualify himself for specific reasons like personal bias, prejudice, familial
relations, financial interests, served as a lawyer in the matter in controversy; served in governmental
employment and stated an opinion, etc.
1. 455(e) Conflicts of interest within this subsection cannot be waived
 24
2. Note: “financial interest” bias may be limited if interest is small (de minimus)
iii. §144: permits a party to seek recusal by bringing specific issues to the court’s attention; also incorporates
the details of §455; also requires judge to stop hearing proceedings (other than the recusal motion)

iv. In re Boston’s Children First (2001): Lawsuit brought by opponents of race-based pupil assignment, want
class action certification; Judge stated to reporter that present case was more complex than prior precedent,
b/c here there IS an issue as to whether the Ps were injured
1. § 455(a): shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned
2. Two competing Policies: 1) courts must be, and seem to be, free from bias, 2) fear that recusal
on demand would provide litigants with a veto against unwanted judges
3. Disqualification Appropriate Only: when the charge is supported by facts, and when facts
provide what an objective, knowledgeable member of the public would/could find to be a
reasonable basis for doubting the judge’s impartiality
4. Cannot “comment on the merits of a pending motion”; but can make public statements in the
course of official duties (in court, during her ruling on the motion), to the explanation of court
procedures, or for legal education
5. Cooley: newsworthy + tension = particularly cautious about comments
C. Judicial Supervision of Juries
a. Controlling Juries Before the Verdict
i. Directed Verdict (Judgment as a Matter of Law): at close of either side of evidence
1. Rule 50(a): there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue
a. “Whether reasonable persons could differ”; “no legally sufficient evidentiary basis”
b. Court should consider all evidence for the non-moving side in its most favorable light
2. Rule 50(a)(2) Can file motion at any time before the case is submitted to jury, and again within 10
days from entry of judgment (later is a jnov – see below)
a. Should DV only if there is no rational basis for a jury to find in favor of the party against
whom the verdict is directed
3. Rule 50(c) losing party can make all its post-trial motions at once; that way if jnov is later
vacated or reversed – automatic new trial from motion for new trial
4. Common Issues: credibility, inference, evaluation, and substance
a. Jury is the undoubted arbiter of credibility
5. Pennsylvania Railroad v. Chamberlain (1933): brake man fell into tracks at a switch yard, killed;
issue is whether the DV was correct
a. P’s only witness possibly not credible (paying only slight attention), also didn’t actually
see whether there was a crash, inference of crash was circumstantial – “no evidence to be
weighed”
b. D’s witnesses all were in a place to see; all said no crash
c. Even if D didn’t put on any evidence at all, P’s evidence is simply not enough to find
that it is more likely than not that the decedent fell as a result of a collision
d. No issue of facts – they didn’t necessarily disagree
e. If “proven facts give equal support to two inconsistent inferences;” judgment as a
matter of law must go against the party with the burden of persuasion (Smith v. First
National Bank)
ii. Judges can also exclude improper influences (through law of evidence and voir dire)
iii. Judges can also instruct and comment
1. Rule 51: Instructions; Frames the question by instructing the jury on the law; Substantive law
and sequence of decisions
2. Federal: Can carefully comment on the evidence – in a way that does not encroach on jury’s
decision making; Cannot purport to be experts in the field of assessing evidence
b. Controlling Juries After the Verdict
 25
i. Judgment Notwithstanding the Verdict (Judgment as a Matter of Law): JNOV
1. Rule 50(b): if court does not grant DV under Rule 50(a), then movant may file a renewed motion
for judgment as a matter of law; same idea as Directed Verdict, just comes after jury has rendered
a verdict
2. If overturned on appeal, this would prevent a new trial – DV would not b/c jury never deliberated
3. MUST make a DV motion in order to make a JNOV motion
a. Impermissible for a court to reexamine the facts decided by jury
b. Allows parties time to correct alleged deficiencies in the facts

ii. New Trial (Rule 59): court may order a new trial on her own (59(d)) or on a party’s motion
1. Two bases for New Trial: flawed procedures and flawed verdicts
a. Flawed Procedures: erroneous legal ruling, erred in admitting a piece of evidence, juror
misconduct, judge misconduct (Peterson v. Wilson: judge granted new trial b/c of jury
comments after the case)
b. Flawed Verdicts: when the verdict is “against the great weight of the evidence” (can’t
base this solely b/c he would have decided differently)
iii. Lind v. Schenley Industries (1960): employment case; Ee alleged oral contract and breach of K by Er; jury
found for Ee, even though oral K would give him insane amounts of $; DC granted jnov or new trial
1. Against the weight of the evidence standard is usually nonreviewable as within the discretion of
the trial court; special or unusual circumstances allow review
2. If it was a procedural flaw – wide discretion to trial judge
3. Verdict flaw may involve a substitution of the judge’s judgment for the juries – must take close
scrutiny; if the case involves simple issues within the ordinary knowledge of jurors (this case),
the jury’s verdict is given more weight
4. Judge is not supposed to substitute his own decision based on the facts – can’t act like the jury
(polar opposite is jury’s verdict is “minimally rational”)
a. Judge here acted like a 13th juror and gave them no deference
5. Judge is only supposed to decide if it is quite clear that the jury has reached a seriously
erroneous result
6. Even though AC only reviews for abuse of discretion – it is always an abuse of discretion to
improperly apply a rule of law
iv. Conditional New Trial: can be limited to a trial on damages only; with liability off table
v. Remittitur: judge orders a new trial unless the P agrees to accept reduced damages
vi. Additur: judge orders a new trial unless the D agrees to accept increased damages
1. may violate the 7th Amendment (gives an award a jury never made)
D. Limits of the Law’s Control – Jury as a Black Box
a. Peterson v. Wilson (1998): Rule: DC cannot order a new trial, on its own motion (sua sponte), based on jury’s
verdict and comments jurors made to the court post-verdict that they disregarded the Court’s instructions
and considered improper factors in reaching verdict
i. Can grant new trial when the verdict is against the great weight of the evidence, but not when the court
would have simply come to a different conclusion
ii. Tanner – common law rule “prohibited the admission of juror testimony to impeach a jury verdict”
iii. Policy:
1. Inviolability of jury deliberations
2. Only close cases go to juries, any verdict should be acceptable
3. Problem filling jury boxes
b. Rule 49: Special Verdict and General Verdict with Special Interrogatories
i. Special V: jury answers a series of questions instead of giving a general verdict
ii. General V: general verdict and answers specific questions
E. Limits of Rational Inference
a. Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911): P could not prove whether her cow was on the RR
tracks by an open gate (her fault) or a down fence (RR’s fault), therefore she loses
 26
i. There simply was no evidence from which a rational trier of fact could have inferred railroad negligence
caused the cow’s death
b. Rule 52(a): requires that the court shall find the facts specially and state separately its conclusions of law thereon…
(would have had to show judge’s inferences – unlike jury); finding of fact by a judge can be set aside on appeal if it
is clearly erroneous
F. Procedural Control of Rational Proof
a. Adversarial Responsibility of Proof: burdens of proof and argument, along with method by which proof is
presented and argued (in turn)
b. Burden of Proof:
i. Burden of persuasion: defines the extent to which a trier of fact must be convinced of some proposition in
order to render a verdict for the party who bears it; beyond a reasonable doubt; by clear and convincing
evidence; by a preponderance of the evidence
1. Note: Tie case goes to the party who does not bear the burden of persuasion
ii. Burden of production: must demonstrate, among the facts uncovered by investigation and discovery,
sufficient evidence to allow a rational trier of fact to find in her favor
1. Must provide evidence from which a rational trier of fact could conclude some proposition of
material fact; Failure means possible Summary Judgment (Celotex – asbestos; SJ)
2. P’s have burden of production for CoA; D’s have burden of production for any AD’s
Preclusion
A. Claim Preclusion (res judicata): forbids a party from re-litigating a claim that should have been raised in former litigation
a. Goals: efficiency, finality, and the avoidance of inconsistency
i. Designed to impel parties to “consolidate all closely related matters into one suit”
b. General Rule: The preclusion law of the court rendering the judgment applies
i. Exception: in a diversity action the scope of the judgment, whether rendered by a state or a federal court,
should be measured as if the state court had rendered it
c. 1) Is it the same claim being litigated in both cases?
i. Majority test: transactional approach
1. facts related in time, space, origin, or motivation, whether they form a convenient trial unit,
and whether their treatment as a unit conforms to the parties’ expectations or business
understanding the usage
2. Transactional idea arises in Supplemental Jx, Claim Preclusion, and whether amending a
complaint relates back to the filing of a complaint under Rule 15
ii. Minority test: sameness of the evidence (Frier)
iii. Frier v. City of Vandalia (1985): F parked cars on narrow street, blocking traffic; City towed 4 of his cars
but did not cite him; F sued for replevin of the cars (legal) instead of paying the $10 each to retrieve them;
when F lost in state court, he sued in Federal court under DPC and a statute
1. One suit precludes another “where parties and CoA are identical”; Based on a “common core of
operative facts” (evidence necessary to prove claim)
2. F could have joined his constitutional claim to his replevin actions – therefore he had a full and
fair opportunity to litigate
3. Preclusion still applies when P only litigated a subset of all claims (2 of 4 cars)
4. DPC not violated b/c he had notice of the action and where to recover, plus the fee was only $10
(would violate DPC if this caused a financial hardship)
5. Have to apply the State preclusion law under Full Faith and Credit § 1738
6. “Full faith and credit shall be given to other states by all other states and the federal courts”
7. Federal courts have to respect the preclusive effect of an earlier state judgment to the same respect
as that same state would (Semtek – Erie case with which CP as conflict)
d. 2) Are the same parties or their privies in both actions?
i. If not same parties, must have privity (Searle)
1. common examples: insured/insurance co, successor in interest, beneficiary/trustee
ii. Privity: means one whose interest has been legally represented at the time
1. Rule: A strong legal relationship is required to bind someone to a judgment in a case in
which he was not a party
iii. Searle Brothers v. Searle (1978): Edlean S got piece of property through divorce; S Bros alleged they
owned an undivided ½ interest in the property; TC held their claim was barred by claim and issue
preclusion
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1. Alternative Tests:
a. Was the issue decided in the prior adjudication identical with the one presented in the
action in question? (no)
b. Was there a final judgment on the merits? (yes)
c. Was the party against whom the plea is asserted a party or in privity with a party to the
prior adjudication? (not a party, not in privity)
d. Was the issue in the first case competently, fully, and fairly litigated?
2. No privity – they are asserting their own separate interest
3. Woody was not acting as an agent of the partnership in his divorce suit
4. Dissent: S bros were actively involved in the divorce suit (sons) – [but witnesses in a case are not
ordinarily precluded from bringing claims similar to the claims on which the testified]
iv. Note: Courts regularly bind nonparties to judgments:
1. Substantive Legal Relationships: successive owners of property, co-ownership, joint obligation,
vicarious liability
a. ex: beneficiary and trustee; heirs and executors of estates
b. Rule: if the substantive law of the relationship treats A as a substitute for B, B will be
bound by the results of a lawsuit in which A participated
2. Express Agreement to be Bound by a decision to which one is not a party
3. Instances of “procedural representation”:
a. guardians appointed by the court to represent an incompetent or minor
b. class actions
c. virtual representation (when you can’t find everyone, but you have enough to represent
those not found)
e. 3) Was there a final judgment on the merits of the first suit?
i. Final Judgment Requirement: some Jx apply claim preclusion when a case is up for appeal, some wait
until the appeal is final;
ii. Rule 60(b)(5) states that the court may relieve a party from a final judgment when the judgment has been
reversed or discharged
iii. What is “on the merits”? – at what stage does claim preclusion start?
1. Full jury trial, Directed Verdict, Summary Judgment
2. Dismissal under 12(b)(6) (failure to state a claim) – Depends
a. P’s legal theory flawed – Yes Precluded
b. P’s facts not enough; usually allow P to amend the complaint – Not Precluded until
after amendment fails
3. Dismissal under 12(b)(2) (personal Jx, subject matter Jx (b)(1), service of process (b)(4)(5)) NO
a. Can’t be on the merits – have to be free to sue in the right place in order to be free to
have your day in court regarding the merits
b. These dismissals have nothing to do with the merits of the case
4. Dismissal for failure to prosecute – YES
a. If we dismiss it is not really on the merits
b. But if we dismiss and allow refiling – this sanction has no teeth
c. Have to make sure people take system seriously
5. Rule 41(b) Involuntary Dismissal: If the P fails to prosecute or to comply with these rules or a
court order, a D may move to dismiss the action or any claim against it. Dismissal operates as an
adjudication on the merits unless it is one for lack of Jx, improper venue, or failure to join a
party under Rule 19.
iv. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (1990): G brought same case in Ohio court (federal
securities CoA)(dismissed for discovery order violations) and then Federal DC; DC dismissed for claim
preclusion; reversed on appeal
1. Actions were definitely the same – same transaction – so would have been claim preclusion under
Ohio law would apply – BUT
2. Ohio court had no subject matter Jx over the claim (federal securities are exclusive to federal
Jx) and therefore the OH decision has no weight (this is based on how Ohio would have treated
the claim preclusive effect – Federal DC has to check that before applying CP principles)
3. § 1738 again – Fed court has to apply Ohio Claim Preclusion effect
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B. Issue Preclusion (collateral estoppel): bars from relitigation only those issues actually litigated and determined; When: 1)
An issue of fact or law is 2) Actually litigated and determined by 3) A valid and final judgment, and 4) The
determination is essential to the judgment, The determination is conclusive in a subsequent action between the parties,
whether on the same or a different claim
a. Purpose of IP: Represents a decision that the needs of judicial finality and efficiency outweigh the possible gains
of fairness or accuracy from continued litigation of an issue that previously has been considered by a competent
tribunal
b. Goals:
i. Judicial efficiency
ii. Preserves victory so that winner can count on it
iii. Operates to simplify dispute resolution by streamlining cases
iv. Safeguards against the same thing being resolved in different ways by different finders of fact so that our
confidence in the judicial system isn’t undermined
c. 1) Is it the same issue being litigated in both cases?
i. Note: no preclusion btwn civil & criminal cases (unless crim first); diff burdens of proof
ii. Stipulations/Admissions/Conceded issues don’t count: Have to actually fight over the issue; Don’t want to
discourage people from making concessions in a lawsuit for fear that the concession will come to bite them
later
d. 2) Did the first lawsuit actually decide the issue in question?
i. Gargallo – action dismissed for discovery violations; issue not litigated
ii. Illinois Central Gulf RR v. Parks (1979): car crashed into train; J and B injured, sued RR for B’s injuries
and J’s loss of consortium; J sued later for own injuries
1. TC held J’s claim not claim precluded; affirmed
2. Issue Preclusion would apply if the same issues raised in the pleadings, answer, and the same
facts or questions determined and adjudicated in the prior case would again be put in issue
3. RR must prove that the “judgment could not have been rendered without deciding the
particular matter brought in question”
4. RR failed – earlier verdict against J’s loss could have been based on either his contributory
negligence OR a failure to prove damages – no Issue Preclusion
iii. In re Sammy Daily: court ordered all allegations of fraud to be true as a sanction; this order does impose
issue preclusion on the fraud (issue was deemed to have been “actually litigated” b/c Daily was an active
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participant in the litigation and chose not to defend himself on the merits; unusual – usually this would not
be an IP case
e. 3) Was the issue resolved in the first suit absolutely necessary to the outcome of that suit?
i. Rule 52(a): requires the judge to set forth findings of fact and conclusions of law
1. Restatement 1: when alternative grounds for decision existed, BOTH should be precluded
2. Restatement 2: when a finder of fact resolves the first lawsuit on multiple grounds, any of
which would have been dependent, we don’t attach IP to any of them
a. Jury might not have looked at both issues carefully – b/c nothing turned on it
b. Multiple reasons mean less scrutiny
c. Why dicta isn’t given as much weight – nothing turns on them
d. Some Jx follow Restatement
f. 4) Are the same parties involved in both actions? (Mutuality Requirement)
i. Different individuals (even married) are not precluded from filing separate suits
ii. Mutuality: neither party can use a prior judgment as an estoppel against the other parties unless both
parties were bound by the judgment
1. Would permit P2 to take advantage of an issue fully litigated and determined in P1’s suit
2. If both parties – IP applies – this requirement has been relaxed somewhat: Blonder-Tongue –
Defensive Non-Mutual IP
3. Preclusion applies when the “victim” of issue preclusion had a full and fair opportunity to
litigate the matter in the first suit
4. If you have never had opportunity to litigate an issue then it can’t be precluded
iii. Non-Mutual:
1. Offensive: Parklane Hosiery Co. v. Shore (1979): Action 1: SEC sued Parklane for fraudulent
proxy statement (SEC won); Action 2: Stockholder sued Parklane under securities laws for
fraudulent proxy statement;
a. Elements: Same issue, Actually determined, Necessary to the outcome, NOT same parties
b. Shore wants to avoid having to prove fraud (may have to prove other things (reliance,
damages))
c. Offensive use of IP: As long as you have had your day in court – should be okay –
UNLESS: (Fairness Factors)
i. Strategic sidelining problem – don’t want to create incentive for someone not
to join an action (don’t want to discourage joinder)
ii. If the first action didn’t create adequate incentives to fight over the issue
iii. If the first action’s procedures were not as meaningful as in the second action
(small claims court v. full regular trial)
d. Federal courts will not preclude the use of offensive IP, but will grant the trial court
broad discretion
e. Rule: in cases where a P could easily have joined in the earlier action, or where it
would be unfair to D, the TC judge should not allow it
f. None of that applies here – offensive IP okay
2. Defensive: okay b/c it doesn’t encourage strategic sidelining; Promotes judicial economy and
protects litigants from the burden of relitigating issues resolved previously (Blonder-Tongue)
a. Ex 1: Blonder-Tongue: P1 v. D1 (D1 wins). P1 v. D2 (D2 wants to invoke IP) OK
i. has already been determined that you don’t have a patent
ii. IP being invoked as a shield, not a sword
iii. encourages joinder – have P1 sue D1 and D2 together; P1 has nothing to gain
from splitting them up
iv. Defensive
b. Ex 2: Parklane: P1 v. D1 (P1 wins). P2 v. D1 (P2 wants to invoke IP) OK this time
i. Offensive
c. Ex 3: P1 v. D1 (D1 wins). P2 v. P1(as a D) (P2 wants to invoke IP)
i. P1 had already lost on an issue and P2 wants to use it
ii. Offensive
iii. Fairness factor:
1. P1 can’t argue adequate incentives to fight; he initiated the first action
2. Joinder issues?
d. Ex 4: P1 v. D1 (P1 wins). D1(P) v. D2 (D2 invokes IP)
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i. D1 has already lost on this issue
ii. What fairness factors does that raise? (didn’t initiate first suit)
iii. Defensive
iv. Multiple Claimant Anomaly: State Farm v. Century Home Components (1976): fire in a warehouse – 48
suits filed; 1 held for D, 2 & 3 held for P; current case P sought to preclude relitigation based on 2 and 3; D
argued that 1 should matter and no IP
1. Problem to afford preclusive effect when there are many claimants from one event; should
allow D to relitigate b/c of fairness
a. “if there are circumstances such that our confidence in the integrity of the determination
is severely undermined, it would work an injustice to deny the litigant another chance”
b. depart from IP when “there is an inconsistency that is staring us in the face”
c. Ex: jury compromise, manifestly erroneous judgment, new evidence that would have a
significant effect on the outcome
2. Here the three cases are not distinct enough in argument/evidence to allow a determination that
decision 1 doesn’t effect this case – NO IP
g. Applying IP to federal government is problematic:
i. Don’t apply Non-Mutual IP against the Gov – b/c to do so would lock into place legal results that could
never be revisited b/c the Gov would be the only party to litigate that issue
1. Say USSC held that for Congress to exercise its CC powers – activity in question has to cross a
state boundary
2. If USSC thought that was wrong and non-mutual IP was allowed; USSC couldn’t revisit:
preclusion is ironclad
3. Really affects repeat litigators
ii. Even Mutual IP creates a problem with the FED:
1. Stouffers – claimed EPA didn’t have power to regulate their manufacturing facility under the clean
air act; S won – EPA can’t regulate
2. S has plants all over country – so when a different district raises a problem – IP
3. What if S’s competitor challenges the EPA’s power in the same way – 9th C might rule for EPA
4. Now EPA can enforce the law against S’s competitor but not S… creates horizontal inequality

Appeal
A. Losing Party may appeal if:
a. There was an adverse judgment: a judgment granting relief different from what one requested
b. Party raised the issue at court below (if not – waiver)
i. Exceptions:
1. Plain Error Rule: litigant surely has the right to assume that a federal trial judge knows the
elementary substantive legal rules, and will act accordingly – imposed where the error has
seriously affected the fairness, integrity, or public reputation of judicial proceedings
2. favorable change in law during pendency of appeal
3. new legal arguments to defend lower court’s judgment
c. There is a final judgment
i. Final Judgment Rule (28 U.S.C. §1291): appeals lie only from final decisions of the district courts (with
some significant exceptions) – most states follow a similar pattern
1. Two functions: defines the moment at which an appeal is proper, and it grants Jx for the appellate
courts to hear that appeal
ii. Liberty Mutual Insurance Co. v. Wetzel (USSC 1976): pregnancy, sexual discrimination case; Single claim
with multiple reliefs sought – therefore the DC’s “final judgment” was not final (didn’t actually rule)(and
thus interlocutory / not appealable)
1. Still had to resolve the damages or other relief sought
2. Exception: granting or denial of injunctive relief is final judgment (it wasn’t ruled on here)
3. Rule 54(b): Judgment on multiple claims – court may direct the express determination that there is
no just reason for delay and upon an express direction for the entry of judgment; without that – the
action is not terminated
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iii. Liberty Mutual looks bad:
1. Wasted all of the AC’s work
2. Won’t the issue come back up???
3. Caterpillar – interests of efficiency and finality?
4. Maybe sending the message is more important (Mottley – WPC)
5. We create rules b/c we don’t want the discretion that is embodied in exceptions to the rule
B. In civil cases, no constitutional right to appeal in federal or state courts
a. But Congress gave statutory rights to one civil appeal in federal and state systems
C. When you do get an appellate court to look at your case, it will look at the DC findings with a deferential standard
(Anderson); Supposed to ask whether the DC was purely erroneous; lot of weight attached to trial court
D. Note: Mootness: one may not appeal from a judgment when circumstances have changed in such a way that relief is no
longer possible; Exception: if the claim is likely to reoccur

Joinder
A. Two Basic Questions:
a. 1) Is there a joinder rule that allows combining of claims or parties?
b. 2) If so, is there subject matter jurisdiction for these claims or parties?
i. If no independent basis, look to §1367 for supplemental Jx; depends on three variables:
1. the basis of the original Jx (Fed Q or Diver?)
2. the identity of the party seeking to invoke (P or D?)
3. the Rule authorizing the joinder
4. Obstacles from Personal and SM Jx too
c. Note: No compulsory joinder of claims; although CP may compel joinder of claims arising out of same transaction
(or evidence – if narrower Jx)
B. Joinder of Claims:
a. By Plaintiffs:
i. Joinder Rule: Rule 18: allows a claimant to assert every claim she has against an opposing party, even if
not transactionally related
1. Rule 42(b): permits the judge to sever claims for trial convenience
b. By Defendants
i. Compulsory Counterclaims:
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1. Joinder Rule: Rule 13(a): compels a counterclaim if it arises out of the same transaction or
occurrence that is the subject matter of the opposing party’s claim (and doesn’t require the
presence of third parties over whom the court lacks Jx)(liberal rule)
a. Falls within supplemental Jx of federal courts
2. Different Tests of whether the CC arises out of the same transaction:
a. Are issues of fact and law raised by claim and CC largely the same?
b. Would res judicata bar a subsequent suit on D’s claim absent the compulsory CC rule?
c. Will substantially the same evidence support or refute P’s claim as well as D’s counter?
d. Is there any logical relation between the claim and the CC? (Plant)
i. “broad realistic interpretation in the interest of avoiding a multiplicity of suits”
ii. Flexible! logical relation exists when the CC arises from same operative facts
3. Plant v. Blazer Financial Services (1979): Debt arrangement, P owes B; P sues B under Truth in
Lending act for failure to disclose; B counterclaims for payment of debt.
a. P argues that B’s CC was permissive, and therefore lacked jurisdictional basis to be heard
(thus DC’s ruling on it should be vacated, & B would have to litigate issue in state court)
b. Likes the Logical Relation Test
c. Appears to be Compulsory (same transaction) – but balancing of policies must occur
(objectives of Rule 13 v. Goals of Truth in Lending Act: to allow consumers to
compare lenders; enforcement)
d. Compulsory could:
i. Stop debtors from suing (if potential recovery less than debt)
ii. Increase federal court workload (by making them adjudicate state debt claims)
iii. Infringe on state’s power to adjudicate disputes grounded in state law
e. But: Purpose of CC rule is to provide complete relief to D who has been
involuntarily brought into fed court – would be unfair to D
f. Legislative intent – Truth in Lending claims can be brought in either federal or state
court – thus they meant to keep the C and CC together
ii. Permissive Counterclaims
1. Joinder Rule: Rule 13(b): permits joinder of any claim by opposing party not arising out of the
same transaction or occurrence; Must have an independent jurisdictional basis
C. Joinder of Parties:
a. By Plaintiffs:
i. Joinder Rule: Rule 20: permits joinder of plaintiffs and defendants if any common question of law or fact
will arise in the action (one common fact req easy to satisfy)
1. Rule 20(b): DC has discretion to order separate trials (prevent delay/prejudice); 42(b): same
ii. Mosley v. General Motors (1974): multiple P’s joined to sue GM for series of discriminations on race and
gender; also suing Union
1. Reverse only if abuse of discretion
2. Purpose of 20 is to promote trial convenience, expedite the final determination of disputes,
thereby preventing multiple lawsuits (joinder strongly encouraged)
3. Same transaction determined by “logical relation”
a. 1) Each P injury arose out of same general policy of discrimination = same transaction
b. 2) in civil rights context just have to have some law/facts in common, not all