I.

Subject Matter Jurisdiction

A. Federal courts have jurisdiction if either B or C is met. Start with constitutional basis for
this (article 3 Section 2, very broad)
B. Diversity Jurisdiction [1332]
i. ‘Amount in controversy’ rule
1. > $75,000, excluding costs of litigation
a. ‘Legal Certainty’ Judge determines at outset if this amount
possible to obtain based on availability of legal remedy or
factual basis [St. Paul v Red Cab, Diefenthal, C.A.B., Kahn v Hotel
Ramada of Nevada]
b. ‘Good faith’-claimant must provide evidence to support the
claim (legal and factual).
c. Claims can be aggregated to meet the amount-only those claims
that are related to the cause of action; different defendats are
ok, but not different claims.
d. Award amount can be lower than Amount in Controversy [Mas
v Perry]
ii. Diversity of citizenship
1. Individuals:
a. ‘Domicile Test’: [Gordon v Steele]
i. ‘intent to remain indefinitely’
1. Always apply stricter test of intent to remain
permanently from Mas v Perry
ii. Has a physical place to live (abode to return to every
evening)
b. Old domicile not lost until a new domiciled is gained
2. Corporations:
a. ‘Domicile Test’:
i. Primary place of business; AND
1. ‘Nerve center’- place of direction, control, and
coordination. [Hertz v Friend]
ii. State of incorporation
b. Became statute- 1332 c 1; excludes insurers
3. Strawbridge Rule-Complete diversity of all parties is required
C. Federal Question Jurisdiction [1331]
i. This statue was enacted to further limit Article 3 of the constitution. Apply the
‘Art 3 test’ first in an analysis.
ii. All civil actions arising under the Constitution, law, or treaties of the US are
under federal jurisdiction
1. Osborn gave broad interpretation, only required federal ingredient.
iii. Rules of application:
1. Filtering out-
a. ‘well pleaded complaint rule’ [Mottley]
 i. A suit arises under the Constitution and laws of the US
only when the plaintiff’s statement of his own cause of
action shows that it is based on those laws or that
Constitution
ii. Look only at the cause of action in the plaintiff’s
complaint
iii. cause of action=something that if legally valid and
factually true would entitle the plaintiff to relief
iv. only applies to federal trial courts, not appellate courts
2. Focusing on-
a. ‘creation test’-American Well Workers
i. Only looks at allegations in the initial pleading
ii. Assess what law is the source of the complaint to
determine if 1331 applies. Example- if US Congress
enacted the statute that is the basis for the claim, then
the question is most likely federal in nature
3. Can be heard in Supreme Court if federal question still remains after
litigation (broader scope applied here) up to the state’s highest court.
Write of certiorari must be granted.

D. Removal
i. IF-THEN-IF
1. IF:
a. A civil action is brought in a state court, AND
b. The claim could’ve been brought in federal court because the
federal court had original jurisdiction of the claim
2. THEN:
a. Removal by defendants is proper
3. IF:
a. A civil action is brought in a state court, AND
b. #2 above is met
c. The defendant is not a citizen of the state where the claim was
brought
i. ‘in-state [Forum]defendant rule’- not likely to be
treated unfairly by his own state; ex: Jane (NH) sues
Scott (TX) in TX state court cant be removed.
ii. Based on initial pleading only (Avitts)
iii. Any federal question can be established only in initial complaint, not thereafter.
(Great Northern v. Alexander)
iv. Notes:
1. Only defendant can file for removal (master of the complaint)
2. Federal courts decide if removal is improper, not state courts.
3. Removing to federal court does not automatically waive right to object
to personal jdx
 4. Court is obligated to determine if the court lacks SMJ

Plaintiff can remand at any time before final judgement

E. Procedure for Removal

i. Where?
1. Filed in federal court in district that is over the state where action is
filed
ii. When?
1. 30 days from date of proper service
2. All parties must join in or consent to removal, if filed under 1441 a
(diversity claim)
a. Each defendant has 30 days, or they waive the right to object
3. At any time, pretrial that an amendment is filed making the case
removable, 30-day timer starts for defendant
iii. Who?
1. Only a defendant can file for removal
2. If removal based on 1332, no amendments can result in removal after 1
year has elapsed.
iv. Additionally:
1. If a civil action includes:
a. A claim under 1331; AND
b. Claim not within original or SJ
c. Then the action can be removed if it could’ve been removed if
the outlying claim wasn’t included
2. If removed, the non-federal calim stays in state court and the federal
portion moves to federal court
3. P can then add parties that destroy SMJ. The federal court could then:
a. Deny additional parties
b. Allow additional parties, remand to state court
4. Essentnially, we REMOVE the case in entirety (1441a), then we SEVER
the case of non-federal portions (1441c) then P can destroy SMJ, or not
(1447e)
F. Remand removal
i. Plaintiff can move to remand within 30 days of filing removal
1. Exception-lack of SMJ
a. If at any time it is found that the court lacks SMJ, the case is
automatically remanded
II. Personal Jurisdiction

Defined as court’s power over a person (in personam) or property (in rem). Can be specific
(based on contacts in forum) or general (domiciliary basis). Can be consented to.

Always start analysis with consent, waiver, and tagged basis for jurisdiction
 Consent and waiver- 4k1a

Tagged- If served in the forum, subjected to it

A. Evolution:
i. Pennoyer: Established that courts have the authority to exert physical power
over a defendant within the territory of the state where the court sat.
1. Burnham: upheld that personal presence in the forum will result in
personal jurisdiction
2. The rest of it was overturned; only established due process based on
the constitution and allowed the full extent of it.
3. Most states have adopted a long arm statute limiting this power
ii. International shoe: Overturned most of Pennoyer.
1. ‘Minimum contacts so as not to offend traditional notions of fair play
and substantial justice’
a. Basically, if a defendant has such sufficient contacts in a forum
that result in them benefitting from the laws and protections in
said forum, they are liable for suit there
B. Specific jurisdiction elements:

Defendant must have contacts in the forum. Reasonableness applied after establishing
that, as in Asahi, claim arises from contacts.

i. Defendant had purposeful or deliberate contacts in forum state

1. Voluntary contacts [Shoe]
2. Minimum contacts
a. Test established by Shoe
b. ‘Purposeful Availment’-weighs if the defendant’s deliberate
contacts] availed him of the benefits of the forum state
c. Spend lots of time here on this topic. Literally list every possible
contact, weigh its strength and weakness, determine its
substantive impact. Be a lawyer.
d. ‘Stream of commerce’ from Asahi states that simply putting a
product into the stream of commerce can subject one to
minimum contacts if the defendant would likely know that the
product may end up in the forum state.
e. Also, apply stream of commerce plus, which requires that a
product enter the stream of commerce and that the contact
was intentional somehow. Example-Advertising in state with
contact, deliberately delivering it to that state, somehow impact
flow of stream.
3. Not a sliding scale Bristol-Myers Squib
ii. Claim arose from these contacts
1. ‘Evidence’-only if the defendants forum contact provides evidence of
one or more elements of a claim
 2. ‘But for’- applies if the claim wouldn’t have arisen but for the
defendant’s contact with the forum
a. More expansive
iii. Personal jurisdiction is reasonable (Asahi)
1. Forum state’s interest in adjudicating
2. Plaintiff’s interest in convenient and efficient relief
3. Interest of all to further substantial social policies
C. General Jurisdiction
i. Development
1. Started out as continuous and systematic contacts in a forum state
resulted in general jurisdiction in that state (Helicopteros)
2. ‘At home’ test developed, see below for elements.
a. Left with two tests after this case
3. Sliding scale of contacts removed in Bristol- Myers Squib
ii. At-home Test
1. Individual
a. Domicile
2. Corporation (Daimler)
a. At home test
i. State of incorporation
ii. Principal place of business
iii. Stream of commerce cannot result in general jurisdiction
iv. Agency relationships provide a basis for specific, vice general jdx
1. For specific jurisdiction, when evaluating contacts, you can’t have
agency become made by simple stream of commerce
D. In Rem
i. In Heitner, J. Marshall declared that property be given the same measurement
and standards as if applying in personam jurisdiction. That means contact with
property, claim arises from contact, and it is reasonable.
III. Method of Service of process
A. Rule 4
i. (c)(1)-What must be served
1. Copy of complaint
a. Written by plaintiff; informs defendant and contains legal
claims, acts etc
2. THE summons
a. Subjects the defendant to authority of case, says the defendant
must appear and defend
ii. (c)(2)-Who can serve it
1. Anyone over 18 and not a party to the complaint
iii. (e) How
1. Individuals
a. (e)(2)
i. In hand
 ii. Served to someone at normal abode and of suitable age
and discretion who resides there
iii. Agent authorized by law
1. ‘alter ego’-must be appointed specifically to
accept service of process in a lawsuit; or as
designated by state law
b. (e)(1)
i. Could use state law statues per (e)(1) in a state where
the court sites
1. Like service by mail
2. Corporations
a. 4(h)
i. Delivered personally to officer or managing agent of
corporation
ii. Person authorized by law to receive service of process
1. Many states require this for corporations
iii. (1)(A)
1. Allows use of state methods in state where
service is made or where action is pending
IV. Venue
A. 1391 notes
i. Applicability
1. Determined without regard to transient presence
B. In general—A civil action may be brought in
i. Individuals
1. A judicial district in which any defendant resides ( if all defendants
residents of the state…..)
a. Basically if both parties are in the same state, but different
federal districts, then any federal district in that state is OK
2. Judicial district where
a. Substantial part of event or omission giving rise to claim
occurred
b. Substantial part of property subject to action is situated
3. In 1 or 2 don’t apply just pick a court with personal jurisdiction (most
likely it must be general jurisdiction if 1 or 2 don’t apply.)

ii. Corporations
1. (c)
a. An entity with the capacity to sue and be sued shall be deemed
to reside, if a defendant, in any jurisdiction with respect to the
civil action in question.
2. (d)
 a. In a state with more than one federal district, a defendant
corporation is that is subject to personal jurisdiction in one of
those districts, is considered to reside in any district in that state
if its contacts would be sufficient to subject it to PJ if that
district were its own state.
C. Transferring 1404
i. Proper Venue: The defendant asks to transfer the court considers all the
following, none of which is determinative necessarily:
1. Plaintiff’s choice of forum
2. Def choice of forum
3. Whether the claim arose else where
4. Convenience of parties
5. Convenience of witnesses
6. Ease of access to sources of proof
7. Interest of jusitice:
a. Whether the transferee court is familiar with the governing law
b. Congestion
c. Local interest
ii. Proper Venue: Defendant moves to dismiss
1. 1406
a. Courts will dismiss or transfer to proper venue
i. Lawyers wants dismissal, judges want transference
V. Pleadings
Considered the ‘gate keeper’ of filing claims. The goal is to make it through this gate to get to
discovery, or conversely to make sure unwarranted claims don’t make it through.
A. Rule 7
i. (a) Allowed pleadings
1. Complaint
a. First pleading
2. Answer to a complaint
a. Defendant’s first pleading
3. Answer to DESIGNATED counterclaim
4. Answer to crossclaim
5. Third party complaint
6. Answer to 3rd party complaint
7. A reply to an answer
a. Usually by order
ii. (b) covers motions and other papers; A court order must be requested by
motion. A motion must:
1. Be in writing unless made during hearing or trial
2. State with particularity the grounds
a. Particularity means be specific
3. State the relief sought
B. Rule 8
 i. (a) General rules of pleading (this guards the gate)
1. Elements
a. Short and plain statement of the grounds for the court’s
jurisdiction
i. Specifically, SMJ
ii. Include factual allegations that support jurisdiction
b. Short and plain statement of claim
i. Must meet these two things:
1. Legally sufficient
a. Facts alleged, if true, must constitute a
legally recognized cause of action
b. This means that the facts should
support the elements of a recognized
tort-type claim
2. Factually Sufficient
a. The allegations put the defendant on
notice of what the claim is and plausibly
support the conclusion that the
defendant engaged in the alleged
conduct
b. Twombly-Igbal Test
Igbal:

1. Ignore allegations that are merely recitations of the elements of the cause of action, or that
simply restate the cause of action itself
2. Consider the remaining allegations and determine
a. whether the defendant was put on notice of the cause of action
b. whether the allegations are plausible, not merely conceivable or possible
i. possible v plausible- [Igbal set the line, hotly contested] facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged

ii. Contains factual allegations that support legal claims

c. Demand for relief sought (prayer for relief)
2. Building a pleading
a. Stating a claim is the hardest part
b. Conley
i. Claim + Facts + Relief = Proper Complaint
c. Elements/Functions of pleadings
i. Giving notice of the nature of the claim or defense
ii. Stating the facts believed to exist (could differ between
parties)
iii. Narrowing the issues that must be litigated
 iv. Providing a means for speedy disposition of sham claims
and insubstantial defenses
d. Rules of consideration
i. Only judge facts alleged in complaint
ii. View in favor of complainant
iii. Look at alleged facts to establish claims
3. Notes:
C. Rule 9: Pleading special matters
i.
D. Rule 54
i. (c)
1. Default judgements must not differ in kind from or exceed amount of
what is demanded in the pleadings
a. Determining legal sufficiency
i. If a claim is true, is there a legal remedy available to
plaintiff?
2. Every other final judgement grants the relief entitled, regardless of
amount pleaded
E. Rule 38
i. (a)
1. Covers seventh amendment protection and statute protections
ii. (b)
1. Can demand a trial by jury for any issue triable by a jury by serving the
other parties within after last pleading directed to the issue was
SERVED. Then, file IAW 5 (d)
VI. Responding to Pleading
Bold=important
A. Options:
i. Motion
1. Dismiss, strike, more definite statement, or 56 summary Judgement
ii. Answer
1. Rule 8
iii. Do nothing
1. Rule 55- Results in default judgment
a. Will require proof by affidavit. Pay attention to where you can
file based on the amount. Must be requested
b. Vocab words
i. Period- time in which a claim must be filed
ii. Accrued- came into existence
iii. Tolled- filing of a complaint
B. Rule 12-Rules for motions
i. (a)Timing of filing
1. See flow chart
 ii. (b)-Stating defenses. Every defense to a claim for relief in anu pleading must
be asserted in the responsive pleading if one is required. The following can be
asserted by motion, prior to filing responsive pleading:
1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficient Process
a. Relates to the actual papers
5. Insufficient Service of Process
a. Relates to the service process itself
6. Failure to state a claim
7. Failure to properly join a party
iii. (c)
1. After pleading, but before too late in the trial you can move for
judgment
iv. (d)
1. If facts are further considered by the court after 12 b 6 or 12 c then
governed as summary judgement per rule 56
v. (e) Motion for a more definite statement
1. Required prior to filing responsive pleading
2. Must be obeyed in 14 days
3. Can’t be used on a responsive pleading, only on pleadings to which a
responsive pleading is allowed
vi. (f) Strike
1. Courts can strike insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter on its own or by motion
2. Unfavorable by the court
vii. (g) Rules of the post-motion motions
1. Joining is allowed. In fact, joining is encouraged. Except as provided in
h.2, h.3 of this rule, if a party make a rule 12 motion, another rule 12
motion cannot be made that raises a defense or objection that was
available but omitted from its earlier motion.
viii. (h)
1. A party waives right to use 12b2-5 defenses if not stated by this rule,
in a responsive pleading, or in an approved rule 15 amendment
2. For all other 12b defenses, and failure to state a legal defense:
a. In any 7a pleading
b. 12 c motion
c. At trial
3. Lack of SMJ can be brought up whenever
ix. (i)
1. If a motion under 12b or 12 c is made a judge will hear it before trial
unless the judge decides to wait until trial
x. NOTES
 1. Waivable defense
a. PJ
b. Improper venue
c. Improper process
d. Improper service of process
2. Unwaiverable
a. SMJ
b. FTSAC
c. Failure to join under rule 19
3. This rule really applies after a complaint is filed. A defendant can submit
these defenses in a pretrial motion prior to answering. If that is the
case, all defenses known should be stated. If a defense later arises from
a new pleading or an amendment, then you may have access to a
previously unstated defense. If a pretrial motion is not filed, these rules
apply to the answer/ responsive pleading.
4. If the pretrial motion is denied, then an answer would be required
C. Rule 15: Amendments
i. (a) Pretrial
1. Amending without court’s permission
a. Within 21 days of serving original pleading OR
b. 21 days after service of responsive pleading, or a 12b, 12e, or
12f motion; whichever is longer
2. Amending with permission
a. Can be obtained from other party or the court, applies to all
motions outside of 15a1A
b. Court shall give permission freely
i. Elements
1. The reason for amendment
2. Amending party’s diligence
3. Preparation prejudice caused by amendment
4. Futility as a matter of law
5. Amending parties’ prior amendments
ii. (c) Relation back of amendments
1. An amendment relates back to the date of the original amendment
when:
a. Allowed by statute or law for statute of limitations
b. Asserts claim or defense that arose out of the conduct,
transaction, or occurrence in original pleading
2. [Barthel]
a. Statute of limitations can be suspended when filing as the
defense is alerted
3. [Bonerb]
a. If the original pleading gave notice and the new claim/defense is
based on the same events, then it relates back
 b. Reasoning: Other party should be able to predict all possible
claims arising from events
4. [Masersk]
a. Undue delay not caustic to 15 c claims
5. Notes
a. Always identify timeline and statute of limitations
b. Consider the but for test and the timeliness of amendment
c. The original complaint must’ve been timely, or else a 15c won’t
be proper
D. Rule 11: Attorney Rules of the road for drafting a pleading
i. (a)-Signature and contact info
ii. (b)-heart of the rule
1. Requires a basis in law
2. Prevents harassing
iii. (c)-consequences; can be brought sua sponte or by motion of other counsel
iv. Notes
1. Learn to apply to hypotheticals in order to determine if the act was
negligent by the attorney
2. A pre-filing investigation is required
a. [Hays] Standard=reasonable under the circumstances
VII. Joinder
A. Rule 18 (a) {Joining claims}
i. Elements
1. A party asserting a claim, counterclaim, crossclaim, or 3 rd party claim
may join as independent claims as many claims as it has against the
appropriate party
ii. Notes
1. Very liberal approach
2. Doesn’t necessarily mean that PJ and SMJ are proper
3. If joined properly under 20a, then you can add as many 18a claims as
you wish
B. Rule 20
i. 2 part test
1. The right alleged by the parties (plaintiff or defendant) must derive from
the same transaction or occurrence; and
2. The claims must share a question of law or fact
ii. [Hohlebein]
1. Reasons not to sever:
a. Continuing pattern established
b. Facts are related, just enough, between parties
c. Damages claimed are similar
d. Judicial resources would be conserved and the most people
involved benefit
C. Rule 21
 i. Misjoinder
1. Not grounds for dismissal, on motion a court can add or drop a party at
any time, can sever any claim against a party
VIII. Rule 13: Counter and Cross claims
A. Compulsory counter claim
i. A pleading must state as a counterclaim any claim that at the time of service the
pleader has against an opposing party if:
1. Arises out of same transaction or occurrence
a. [King]
i. Test
1. Whether the issue of fact and law are largely
the same
2. Whether substantially the same evidence is
involved
3. Whether there is a logical relationship between
the two actions
a. Specifically between nature of actions
and remedy sought
4. Whether res judicata would bar a subsequent
claim absent this filing
ii. Not a mechanical test; merely suggestive
iii. Focus on underlying events in the claim, not purported
legal theories
iv. Doesn’t apply to claims asserted after time of service
2. And court doesn’t have to add a party over which it lacks jdx
3. Exclusions apply
ii. A federal court has SJ over these claims (28 USC 1367)
B. Permissive counter claim
i. A pleading may state any non compulsory coutner claim
1. Typically unrelated to the events giving rise to claim
2. Requires analysis for SMJ/PJ
3. Optional
C. Crossclaims
i. Optional; must meet the same ‘Transaction-Occurrence Test’ or relate to
property in claim
IX. Rule 14: Impleader (third party practice)
A. When a DEFENDING party may bring in a 3 rd party
i. Has 14 days to file claim as 3PP
1. Can get permission after that time period
ii. Impleaded 3PD claims and defenses
1. Any defense under rule 12
2. Any Rule 13 claim (a, b, g)
3. Any defense to claim can be asserted ( agains P that the 3PP has to P’s
claim), AND
 4. May assert any claim against P arising out of T/O that is subject matter
of P’s claim
iii. P claims against 3PD:
1. May assert any claim arising out of T/O that is subject matter to claim
against 3PD
iv. Motion to strike, sever, or try separately
1. Allowed by any party
v. 3PD can become a 4PP
vi. 3P in REM only allowed in admiralty law
B. When a P may bring a 3rd party
i. Whenever a claim is asserted against P (counterclaim), and this rule would allow
a D to bring a 3rd party, then P can do so
C. Must prove PJ for impleaded parties
D. Mostly, this tool is used to get contributory claims in court (to limit full damages) or to
bring indemnification (avoid all damges)
X. 1367: Supplemental Jursdiction
A. For all cases where a court has original jdx, a court has SJ for all maters that are so
related to the original case or controversy.
i. [Gibbs]
1. Case on pendent jurisdiction
a. State claims asserted by P
2. If you satisfy 1331 (federal question), then the court gets the whole case
a. ‘single constitutional case’
3. This power is discretionary
a. A court may choose to drop the claim for one of these reasons:
i. The federal ingredient drops
ii. State issues predominate
iii. Surer footed reading of the law
iv. Likelihood of jury confusion
ii. [Kroger]- Further defined SJ test
1. Case on ancillary jurisdiction
a. State claims asserted by defendant
2. Requires
a. Common nucleus of operative facts
b. How the claim was asserted is crucial
c. Judicial efficiency doesn’t apply here
iii. Both cases extend/clarified constitutional powers of the judiciary to hear claims
between citizens of the same states. Statutorily adopted via 1367
iv. Exceptions:
1. Part b
2. Part c
3. Specific statutes
B. If original jdx per 1332 only, and additional claim is does not comport then
 i. If P brings claim under these rules: 14, 19, 20, 24, and they do not comply with
1332, then no SJ
C. Courts can decline subsection a for variety of reasons (supra)
D. 30 days plus time claim is pending=limitation on time to file
E. Steps for analyzing SJ
i. Go claim by claim in the case
ii. Assess 1331 v 1332
iii. Apply 1367 per previous assessment
iv. Determine operative of nucleus facts
XI. Discovery
A. Rules
i. 26-Duty to disclose
ii. 27-32: depositions
iii. 33: interrogatories
iv. 34: ESI requests
v. 35: medical exams
vi. 36: request for admissions
vii. 37: Sancitons
B. Purpose
i. Avoid surprises at trial
ii. Narrow issues for trial
iii. Finding information to strengthen case
iv. Facilitate settlement
v. Preserve evidence
vi. Allow evaluation of strengths and weaknesses of case
C. Bad reasons for not disclosing
i. I didn’t fully investigate
ii. Other party’s disclosure is insufficient
iii. Another party has failed to disclose
D. Rule 26
i. Required disclosures
1. Initial
a. Name, address and phone of each person likely to have
discoverable information
b. All documents and tangible things in possession that has
discoverable information
c. Damages computation
d. Insurance information related to the case
2. Expert Witness
a. Must provide name and contact information for expert
witnesses
b. Must provide written report from Expert witness
c. No disclosure required for discrediting information for expert
witness
 3. Pre-trial
a. Evidence requirements
i. Requires name, address and number of all witnesses
ii. ID of each exhibit expected to be offered
ii. Timing
1. Required within 14 days of 26 f conference or 30 days after joinder if
joinder occurred after 26 f conference
iii. Scope of discovery
1. Reasons it may not be discoverable
a. Privileged information
b. Relevance to claim or defense
c. Proportional to needs of case
i. Several factors; best one is:
1. Whether burden of production outweighs likely
benefit
2. [Gaylard]
a. Sets standard for interviewing clients before filing; says it is ok
and that ethics violations are necessarily a procedural violation
here
3. [Hickman]
a. Case on work product of the lawyer vs lawyer client privilege
i. Codified by 26 b 3
ii. A-C Priv= only communication shared between attorney
and client
4.

A-C Priviliege Work Producg

Exception
Who Attorney, client, Attorney, assistants,
attorney assisstants invesetigators, or
party
What Communications Mental impressions,
documents,
materials related to
case
When Attaches at first In anticipation of
contact, end when lititgation- typically
case ends attached to some
problem

a.
E. Responding to interrogatories
i. Cant be boilerplate
ii. Options
1. Privileged information requested
2. Not relevant to case
 3. Not proportional
4. Disclosure of work product material
F. Timing example in NOTES

G. Flow chart
i. Filing->Service->26f conference->26a1 required disclosures and 26f discovery
plan due->16b scheduling conference and order
ii. 3 delay buttons
1. P agrees
2. Court orders
3. Raising objection within discovery plan
H. Spoliation
i. Since people lie and shit, discovery must be controlled. Mostly accomplished by
26g
ii. Elements
1. Obligation to preserve at time ir was destroyed
2. Culpable state of mind when destroying
3. Relevant
a. Destroyed evidence relevant to claim
b. In bad faith
c. Negligence in destruction would require further proof
XII. Choice of Law
A. History
i. 1789 judiciary act (Rules of Decision Act) Essentially upheld American values
that state law should applied in cases brought in the federal court. 28 usc 1652
codified this act into civil procedure
ii. [Swift v Tyson]
1. 1842
a. SCOTUS said federal courts follow state statutory law but not
bound by state common law decisions
iii. [Black & white v Brown & Yellow]
1. Upheld swift v Tyson
a. Expanded it to include ability to rule exactly opposite of state
courts
2. This resulted in federal body of common law
B. Enter the Eerie Doctrine ONLY APPLIES TO DIVERSITY CASES
i. A federal court hearing a state law claim, whether in diversity or federal
question cases, must apply the law of the relevant state to the state law claim,
not make general common law.
ii. Early post-erie decisions forced federal judges to apply prior state precedent, no
matter how the court may decide the case today
iii. Now, however, the courts are to decide the case by predicting how the stat
supreme court may rule today. (‘Court predictive approach)
C. Outcome determinative test (rests its laurels on procedure)
 i. [York]
1. Apply state law to procedural issues like SOL
2. Upheld that if disallowing a state procedural rule would change the
outcome then apply the state law
3. ‘Results in federal court should be substantially the same, regarding
legal rules, as if the case were in state court’
4. Courts should look prospectively not retrospectively
a. Prospectively-would a lawyer act differently with knowledge of
conflict we no know
b. Retrospectively- did the rule actually make a difference? Then
yes it is outcome determinative (usually found on appeal)
ii. [Byrd]
1. Basically, this case gives a caveat to [York]. Now, if a federal procedure
is at odds with a state procedure, and the federal procedure is weightier
(i.e. public policy would be negatively impacted by not following this
federal procedure) go with the federal procedure.
2. Allows for balancing the outcome determinative test
3. Questions at issue must be of ‘mode and form’
iii. Here comes [Hanna]
1. Fractured the analysis between state and federal practice into two parts
a. Part 1: Conflict between state law and federal judicial practices
i. Federal judicial practices are those practices not
codified by statute or in the Rules (‘relatively unguided’)
ii. Goal is to further the Erie doctrine, and applying
uniformity of application of state law.
iii. Doesn’t change much from Byrd; essentially reaffirms
adding specificity for federal judicial practices which are
not prescribed by the FROCP
iv. Consider if applying the rule will result in inequitable
administration of the laws (as applied to diversity vs
non-diverse claimants from the same state) or if it
would lead to forum shopping
v. Applied prospectively
1. Ask ‘Would the litigant have significantly more
opportunity in federal court vice state court
vi. Part 1 is dicta
b. Part 2:
i. Complex analysis
ii. Underlying Basis
1. REA was authorized by Congress so the issue for
challenging a REA rule is whether Congress had
the power to enact the rule. FROCP come from
power delegated to Supreme Court for REA. If
Congress had the power to write the rule and
 the power to delegate that to the Court then
the rule is valid and will trump state procedure.
2. Leans on the Necessary and Proper clause for
augmentation of reasoning
iii. Applies only when state law conflicts with FROCP
iv. Two part test tied into 2072
1. Did the Court have the power to make the rule?
2. Is the rule broadly procedural, and does is alter
any substantive rights?
a. Should be a yes then no answer here
v. THIS PART OF HANNA IS NOT OUTCOME
DETERMINATIVE
2. 2072
a. SCOTUS has power to prescribe general rules of practice and
procedure and rules of evidence in federal courts
b. Such rules shall not abridge, enlarge, or modify any substantive
rights
c. Such rules can define when a ruling is final with no chance of
appeal
XIII. Summary judgement
A. Rule 56
i. Must show no genuine dispute to any material fact
1. Genuine dispute=needs to be decided by a fact finder; a reasonable fact
finder could find wither way
2. Material fact= a fact that actually matters to the case
ii. Availble up to 30 days following close of discovery
iii. Procedure-Party stating fact validity must:
1. Can only cite to materials in the record (must be admissible per rules of
evidence)
2. Must show that the cited materials prove your assertion (absence of
proof doctrine)
3. Objections to admissibility of evidence is allowed
4. Court only HAS to considered cited materials
5. Rules of the affidavit are covered here
iv. Options if movant lacks evidence
v. Options for missing facts
vi. Allows judge flexibility to grant without regard to motion (sua sponte)
vii. Failure to grant stuff
viii. Bad faith clause
B. Steps for analyzing
i. Identify substantive law
ii. Identify material facts
iii. Analyze the record for material facts presented by moving party for a genuine
dispute and decide if moving party warrants summary judgement
 iv. Perform previous step from perspective of non moving party, not withstanding
analysis for moving party
v. Decide whether or not to granny Sum Judge
C. Allegation in complaint alone are insufficient [Salven]

Motion 12 b 6 12 c 56 50a after P 50 a after P

&D
Facts In complaint In complaint Undisputed Facts in Facts in
and answer facts record record
after P after P and
states case D state
case
XIV. Appeals
A. Purpose:
i. Not a new trial
ii. Serves to review the objectiosn
iii. State appellate courts are governed and created by statute
iv. USC for federal appellate courts
v. Doesn’t retry the facts
B. Process of presenting and deciding on appeal
i. File notice of appeal within 30 days of final judgement
1. Designate the judgement, order, or part thereof appealed
ii. Compile documentary record of proceedings in trial court relevant to appeal
1. Call record index
2. Appellant and appellee file briefs arguing legal sufficiency of
claim/refutations to claims
iii. Panel assigned to hear the case
1. Oral arguments are optional
iv. Notes
1. Only those issues raised are addressed
2. Appellant sets the scope of review
C. Reviewability
i. Burden is on appellant to raise issues by objecting in the trial court then argue in
appellate court
ii. Three P’s:
1. Prejudicial- error affecting substantive rights)
2. Preserved below- met by objecting at trial
3. Presented above- stating what was wrong to the appellate courts
iii. [MacArtuhur]
1. Classic example of not preserving below by not objecting; lost chance to
appeal because of it
iv. Exceptions to preserved below
1. Pure question of law and refusal to consider it (miscarriage of justice)
2. Relaxed if appellant is raising objections he had no chance to raise
during the trial
 3. Court has authority to hear the case for a plain error
4. Where proper resolution is beyond any doubt
5. Public policy concerns
v. Scope of arguments
1. Attack appeal- only from record
2. Affirm appeal- any argument
D. Scope of Review
i. Objective:
1. Finality
2. Efficiency
3. Comparative advantage
ii. Appeal claim requires ‘concise statement of applicable standard of review’
iii. Deference given to trail court/jury/judge is on a continuum
iv. Continuum goes from no deference to all the deference
1. De novo-questions of law and mixed questions
2. Clearly erroneous- fact finding by judge
3. Abuse of discretion-discretionary orders
a. More deference for case management
b. Less deference for issuing summary judgement
4. Reasonable jury- jury verdicts
a. Lots of deference due to 7th amendment
XV. Preclusion
A. Claim preclusion-this is an affirmative defense
i. Res judicata- prevents re-litigating claims that have already been fully litigated
in a previous trial
ii. Purposes
1. Fairness
2. Promote public trust
3. Promote efficiency
iii. Distinguishing
1. Similar to retrial, collateral proceedings, and double jeopardy
a. Retrial
i. This is a continuation of the same litigation
b. Collateral proceedings
i. Enforcement action collateral to original proceeding
c. Double jeopardy
i. Only applies to criminal cases
iv. Defining a claim
1. Elements
a. Must be the same claim as that which was previously litigated
(this is the hard part)
i. [River Park Inc]
 1. Included two tests: same evidence and
transactional. Court decided transactional is the
test to apply
2. Transactional test- the assertion of different
kinds of theories of relief still constitutes a
single cause of action if a single group of
operative facts give rise to the assertion of relief
b. Previous litigation must have resulted in a valid final judgement
on the merits
c. Same parties in original and new claim
v. Validity and finality of judgement on the merits
1. A judgement is preclusive if it is:
a. Valid
i. Not valid if court lack SMJ or PJ
1. Exemptions if D responed and fully litigated
with no objection, unless it was a manifest
abuse of authority or substantially infringed the
authority of another tribunal
b. Final
i. Example: P files on same day in federal and state court
against a single D (not yet final). Considered final when
trial court enters a judgement. Appeal status is
irrelevant
c. On the merits
i. Considered on the merits unless the case is dismissed
for SMJ, PJ, or improper venue.
ii. SOL is considered claim prelcusive
vi. Exceptions to claim preclusion
1. Hard to get these to apply [River park again]
2. Exceptions
a. Parties have agreed that P may split claim or D has acquiescence
b. Court expressly reversed P’s right for second action during first
action
c. SMJ limitations in first case cause P not to be able to seek a
remedy or push a theory and P now wants to pust that theory
or seek that relief
d. First action judegement is plainly unfair
e. P chooses to sue from time to timte ina case involving
continuous or recurring harm
f. Clearly and convincingly shown an extraordinary reason to
disregard preclusion doctrine
B. Issue Preclusion (AKA collateral estoppel)
i. Purpose: failr litigation; prevents relitigating issues decided in previous cases
even if they relate to a new case
 ii. Elements:
1. Issue in the 2 law suits are the same
2. Issue actually litigated in lawsuit #1
3. Substantial confidence in decision because P had opportunity to full
litigate
4. It was actually decided
5. The resolution was essential to judgement in #1(not gratuitous)
iii. Tips for analyzing
1. ID fist lawsuit that reaches final judgement
2. Label it lawsuit #1
3. Decide if an issue decided in 1 comes up in 2
4. Consider the circumstances and quality of litigation in #1 in order to
decide if #1 has preclusive effect on #2
C. Claim vs Issue Preclusion
i. [Flegler]
1. Wheter to apply CP or IP depends I fcause of action is the same
a. Claim=those things brought to the case
b. Issue= those things actually litigated
2. Issues are typically smaller pieces whereas claim typically go towards
elements
3. Issues must be actually litigated whereas claims only have to have had
the ability to be litigated