Civil Procedure Outline

Pleading 
 Claim For Relief (Rule 8(a))
o Elements:
 Short & plain statement of the grounds for the court’s jurisdiction (Rule 8(a)(1)).
 Short & plain statement of the plausible claim for relief (twiqbal) (Rule 8(a)(2)).
 Demand for the relief sought (Rule 8(a)(3)).
o Cases:
 Bell Atl. Corp. v. Twombly (Claim’s facts must be plausible on its face - for class actions)
 Policy:
 Procedure:
 Ashcroft v. Iqbal (Extends Twombly’s holding to all claims not just class actions)
 Policy:
 Procedure:
 Conley v. Gibson (A complaint must have a short & plain statement of the claim)
 Policy:
 Procedure:
 Defenses; Admissions & Denials (Rule 8(b))
o Elements:
 Short statement listing defenses to each claim (Rule 8(b)(1)(A))
 Admitting or denying each allegation (Rule 8(b)(1)(B))
 A general denial denies all allegations including jurisdiction (Rule 8(b)(3))
 Denying in part (Rule 8(b)(4))
 Denying because there isn’t sufficient information (Rule8(b)(5))
 Silence/failure to deny is taken as admitting the allegation is true (Rule 8(b)(6))
 Affirmative Defenses (Rule 8(c))
o Elements:
 In responding to a pleading a party must state any affirmative defenses or avoidance (Rule 8(c)(1))
 Examples:
 Accord and satisfaction;
 Arbitration and award;
 Assumption of risk;
 Contributory negligence; 
 Duress;
 Estoppel;
 Failure of consideration; 
 Fraud;
 Illegality
 Special Matters (Rule 9) (Note she only mentioned the fraud aspect of rule 9)
o Elements:
 FRAUD OR MISTAKE; CONDITIONS OF MIND. 
 In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally (Rule 9(b)).
 Defenses & Objections (Rule 12)
o Time to Serve A Responsive Pleading (Rule 12(a)):
 Elements:
 Must serve an answer within 21 days of service (Rule 12(a)(1)(A)(i) or
 Within 60 days of waiver of service under Rule 4(d) after the request for waiver was sent
or 90 days if it was sent outside of any judicial district in the US (Rule 12(a)(1)(A)(ii))
 Answer to counterclaim or crossclaim (if served with a counterclaim or crossclaim) is 21
days (Rule 12(a)(1)(B))
 Reply to answer (if served with order to reply) is 21 days unless otherwise specified
(Rule 12(a)(1)(C))

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 o Presenting Defenses (Rule 12(b))
 Elements (which may be made asserted by motion)
 (1) lack of subject-matter jurisdiction; 
 (2) lack of personal jurisdiction;
 (3) improper venue;
 (4) insufficient process;
 (5) insufficient service of process;
 (6) failure to state a claim upon which relief can be granted; and
 (7) failure to join a party under Rule 19.
 Defense 1 can be raised anytime (including on first appeal)
 Defenses 2-5 need to be stated in the first motion or answer or amendment as of right thereto
otherwise they are waived.
 Defense 6-7 can be raised anytime before trial or "at trial"
 Defendant can use any of the defenses above in a motion or in their answer (Rule 12(c))
o Motion for a more definite statement (must be BEFORE responding) (Rule 12(e))
 This is where you can't understand what the complaint is against you. 
 The opposing party has 14 days to obey this motion before the court strikes the pleading or issues
any other appropriate order
o Motion to strike (Rule 12(f))
 Must be 21 days after receiving the pleading
 Can move to strike any immaterial, scandalous, redundant, or impertinent matter
o Cases:
 Bell Atl. Corp. v. Twombly (Claim’s facts must be plausible on its face - for class actions)
 Policy:
 Procedure:
 Ashcroft v. Iqbal (Extends Twombly’s holding to all claims not just class actions)
 Policy:
 Procedure:
 Conley v. Gibson (A complaint must have a short & plain statement of the claim)
 Policy:
 Procedure:
 Default & Default Judgment (Rule 55)
o Default (Rule 55(a))
 If you don’t respond in the time allotted you enter default and waive the right to contest liability
o Default Judgment (Rule 55(b))
 Liability is waived but damages aren’t set until done so by the clerk (Rule 55(b)(1)) or
 A hearing (Rule 55(b)(2))
 Can be set aside if defendant has good cause (Rule 55(c))
 Amendment & Supplemental (Rule 15)
o Elements:
 Can only amend pleading once within 21 days of serving it (Rule 15(a)(1))
 This can be before receiving an answer (Rule 15(a)(1)(A) or
 After receiving an answer (Rule 15(a)(1)(B))
 Amendments during and after trial (Rule 15(b))
 If evidence is raised in trial that isn’t included in the original pleadings then the opposing
party must object to it and the court may decide to let the parties amend their pleadings
(both the complaint and the answer) to address the new information.
 The court can decide that the objecting party failed to show 
 Relation back of pleading (Rule 15(c))
 Allowed to relate an amendment back to the date of the original pleading when:
 The law that provides applicable statute of limitations allows relation back
(Rule15(c)(1)(A))
 The amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out or attempted to be set out in the original
pleading (Rule 15(c)(1)(B))
 The amendment is to change the party or the naming of the party (Rule 15(c)(1)
(C)) if:
 The party to be brought in by amendment received such notice of the
action that it will not be prejudiced in defending on the merits (Rule
15(c)(1)(C)(i))

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  The wrong party was sued and the intended party knows that the
wrong party was sued (Rule 15(c)(1)(C)(ii))
 Example:
 A sells B some bad stock on the 3rd 2001. B sues for breach of contract on the
1st 2004; two days before the statute of limitations runs out. On the 10th 2004
B decides to bring a fraud claim against A for the sale of stock (assume fraud
statute of limitations is also three years). B amends to relate back the fraud
claim to the sale of stock (the statute of limitations has already past). If the
judge approves this then the fraud claim will be included in the complaint. If
the judge doesn't approve it then it won't be included and B can't sue in the
future for the fraud claim because the statute of limitations has already passed.
 Supplemental Pleadings (Rule 15(d))
 These are different claims that happened after the date of the pleading. The court may
permit supplementation even though the original pleading is defective in stating a claim
or defense.
 Example:
 A files a complaint against B. B answers the complaint. Later A sees B at an
event and B punches A. A may use this as a supplemental pleading.
o Cases:
 Marsh v. Coleman Company (Marsh unable to amend complaint to add claim of fraud because
fraud claim does not relate back to the events that gave rise to the original complaint)
 Smith v. City of Akron (Smith unable to amend complaint to add names of officers involved in the
event because it does not relate back to the original complaint (named the officers John and Jane
Doe and didn’t attempt to discover their real identities until the last day of the statute of
limitations)).
 Sanctions (Rule 11)
o Elements:
 You have to sign every document (other than discovery documents) presented to the court (Rule
11(a)(1))
 There needs to be an inquiry reasonable under the circumstances and the documents presented must
(Rule 11(b)(1)):
 Not have an improper purpose (Rule 11(b)(1)(A))
 Must be warranted by existing law or have a nonfrivolous argument to modify existing
law or to establish new law (Rule 11(b)(1)(B))
 The allegations are likely to have evidentiary support (Rule 11(b)(1)(C))
 Denials of allegations are warranted on the evidence (Rule 11(b)(1)(D))
 The certification is renewed every time the document is presented or later advocated for to the court
(Rule 11(b)(2))
 If there is a violation to Rule 11b a party needs to inform the opposing party of the violation and
give them the opportunity to fix it (this is the safe harbor rule). If the opposing party doesn’t fix it
within 21 days the party can move for a motion for sanctions (Rule 11(c)(1))
 The court can also create a sanctions on its own initiative (Rule 11(c)(2))
 The court may ask if the safe harbour provision was abused (Rule 11(c)(2)(A))
 There is no safe harbor if the court does it on its own initiative (Rule 11(c)(2)(B))
 The court shows why there was an 11b violation and then the violating party needs to
address why sanctions should not be imposed (Rule 11(c)(2)(C))
o Types of sanctions:
 Non-monetary
 Warnings, reporting to the bar, etc.
 Monetary
 Court imposed fee
 Expenses including attorneys fees to the non-violating party (this is the least favored
sanction)
o Cases:
 Bridges v. Diesel Service, Inc.

Personal Jurisdiction 
What establishes Personal Jurisdiction

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In personam: In person jurisdiction in state
In rem: Against property in state
Quasi in rem: Bringing about personal jurisdiction over a person through attaching a property in forum state (Pennoyer v. Neff)
 
1) Domicile- D maintains permanent resident in state
2) Consent/Waiver- D allows for Forum state to have JD
a. Note: can be done explicitly or implicitly 
Implicit: Show up in court/Filing an answer without objecting to ct’s JD is submitting to JD
Explicit: Filing with 12 (b) (2), consenting to personal JD. 
3) Presence
a. Served notice whilst in the state (Tag JD)
4) Long Arm Statutes
 
Constitutional Limits on PJD (specifically long arm statutes, etc.)
Are There Long Arm Statutes?
-    If Yes: Analyze statute to see if claim meets the statute (Limited or unlimited?)
Limited Long Arm Statute 
O Then do a constitutional analysis (contacts) (does it meet constitutional analysis)
o   Statute cannot infringe on due process rights under 5 and 14 amendments of the Constitution
th th

 
SPECIFIC PERSONAL JURISDICTION
Seeking to establish personal JD based on a specific event/claim
1. Minimum Contacts (International Shoe v. Washington State)
-    Test for minimum contacts with a state to satisfy the constitution and allow Personal Jurisdiction
-    Level of contacts/relatedness test is as follows:
  Contact Gives rise to the claim Contact is unrelated to claim

Continuous and systematic Yes Maybe- no 

Single and Isolated Maybe- yes  No

NOTE: The standards of minimum contacts shift depending on what personal jurisdiction is being selected. With specific
jurisdiction, PJ is only proper for instate activities. With general JD, D must essentially be at home in that state, but can be
sued for conduct arising out of state. 
-    Benefits giving rise to obligations
   i. Did the defendant benefit from the protections of the state?
-    Purposeful availment: (WW Volkswagen)
-   Was there an intentional act committed by dfndt directed at a particular state? Did they gain
benefits from the state, which give rise to obligations?
2. Reasonableness/Fairness 
-    Defendant’s burden in proving reaching the area extremely inconvenient and at huge disadvantage 
-    Forum State’s Interest
-    Plaintiff’s interest, difficulty in reaching the Defendant
-    Interest of other States/Nations
 
REMEMBER: KEEP YOUR ELEMENTS SEPARATE   
 
Other Forms for establishing Specific Personal Jurisdiction
-    Stream of Commerce (Gray, Asahi, McIntyre).
O’Connor/Kennedy Test:  Target state economy seller must be clear w/ distributor you want to market and
sell in that economy, no PJD otherwise.
 Brennan/Ginsburg Test: Using a distributor means you target the US as a whole, meaning that there is the
possibility that the forum state was targeted There will be PJD.
-   Contact through a contract
 Burger King v. Rudewicz
o Contract with other party in forum state not enough, must seek benefits from the Forum state
-   Contact through the internet
 Telemedicine Solutions v. Woundright Tech

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 o The party must target the forum state, and that contact cannot be derived from simply targeting the
pltf.
-    “Tag” Jurisdiction (Burden) 
 If dfndt is served within the forum state while there, you are subject to the JD of the forum state. 
 Burden 
o Scalia +3 = Intl. Shoe doesn’t govern, if dfndt is in state at time of service, state has PJ over them 
o Brennan +3 = Intl. Shoe governs, but while you are in a state, you are benefiting from a state while
being there, Intl. Shoe governs. Travel is not unreasonable in today day and age. 
 
GENERAL PERSONAL JURISDICTION
Seeking to establish Personal JD in that state the dfndt is a citizen of.
·   Purchases from a forum state do not rise to general PJ
Helicopteros v. Hall
·   Slider, the more related the contact is to the claim that gives rise, the less contacts you need.
·   RULE: Even when the cause of action does not arise out of/relate to foreign corp. act. In forum state, due
process is not offended by state subjecting corp. to in personam JD when contacts are sufficient. Between state
and foreign corp. (In this case, the crash occurred in Peru, and therefore the contacts were insufficient to sue in TX).
Bristol-Myers Squibb 
 Had a huge presence in CA, but ct. Ruled that because they weren’t a citizen, they were not at home in CA and
therefore general personal JD did not apply. 
 Must include very product that caused harm in the claim (drugs not taken in california, didn’t give rise to the claim). 
 The Hawaii Hotel Hypothetical
 Proximate Causation: Relevant to proving claims (No PJ in MA) 
 But For Causation: But for seeing ad, would not have gone to hotel (Yes PJ in MA) 

IN REM (IR)/ QUASI IN REM (QIR) PERSONAL JURISDICTION

 For IR and QIR, property must be attached from the outset 
o Ie. Mitchel v. Pennoyer would have been good, had pltf. Attached the property at the outset of the case. 
 How to Attach property 
o Statutory basis- every state has a statute for attaching property for a claim 
o Second step is constitutional test: from Schaffer (Stock sequestered from Delaware Co. in Delaware as
property for QIR personal JD) 
 All forms of Personal Jurisdiction must meet the international shoe standard 
 (The property must be related to the claim for there to be specific PJ- Stocks are unrelated to claim
and thus test not met). 
 EXAMPLE: 
 Fred has property but does not live in the forum state, and fails to pay the mortgage. Bank
files claim in forum state over property. Is there QIR personal PJ? Yes, because
property gives rise to claim = related. 
CHALLENGING PERSONAL JD
 Challenging case: utilize Rule 12, specifically (b) (h) (g). 
o Baldwin: 
 Once personal JD is established, either appeal or show up, you are bound. 
 If you don’t show up and argue that there was no PJ on default, and lose, you’re hooped. So just
show up. 

Notice and Service

Overview:
 Defendants are typically notified through “service of process,” that includes receiving the
complaint and other documents in a particular manner.
 How defendants are notified must comply with the 14th amendment Due Process Clause of the
Constitution.

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 o Due process requires the defendant have adequate notice of the proceeding so that the
defendant is alert to the existence of the suit.
 Proper notice involves two separate issues:
o 1. The service method must be authorized by the sovereign (federal or state), and
o 2. Notice provided must be constitutional according to the Due PRocess clause.
 What is service?
o In federal courts, defendants are notified by service of process, which includes receiving
not only the complaint, but also a “summons,” which is an official document telling the
defendant to participate in the case, or else suffer a default judgement (i.e. automatically
lose)
 How does service relate to notice?
o In the federal courts, we talk about the two parts of notice:
  1. Whether service (the delivery of the complain and summons was proper under
FRCP (See Rule 4), and 
 2. Whether that notice is constitutional
o So the word “service” is a shorthand way of talking about the first part of the notice
requirement.
 Which points to focus on?
o Section (c) on Service 
o Section (d) on waving service 
o Section (e) on serving an individual in the U.S.
o Section (h) on serving a corporation or the like
o Section (l) on proving service
o Section (m) on the time frame of service

Service in Federal Courts - FRCP Rule 4

 FRCP rule 4 is the comprehensive rule about how to serve defendants sued in federal court
(whether the defendants are located in the us or abroad)
 Although Rule 4 is titled “Summons” the crux of this rule is about serving this document. Here is
a rough breakdown of main points and important concepts for rule 4 to keep in mind:
 Section (a) - Contents  
o ~What must be included in a summons
o (1) Contents: lists 7 points that must be met, refer to rule 4(a)(1)
o The summons is the official paperwork that indicates to a defendant that he or she has
been “summoned” to appear and explains the consequences if he or she does not.
 Section (b) - Issuance
o ~How a summons should be issued, i.e. having the clerk sign and seal it. 
 Section (c) - Service (i.e. Who/what)
o ~Who can accomplish service by providing both the summons and the complaint
o (1) In general: a summons MUST be served with a copy of the complaint within the time
allowed by Rule 4(m) 
 A plaintiff is responsible solely for this. 
o (2) By whom: ANY person who is at least 18 years old and NOT a party may serve a
summons and complaint
o Note (3) for service by marshal or someone specially appointed. 
 Section (d) - Waiving Service 

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 o ~ this is only about waving formal service of the summons - instead of sending out a
process server, the defendant agrees that it was fine just to get the complaint in the mail
or other reliable means.
 The defendant does not waive the rights to receive the complaint, since waiver
requirement explicitly require that the waiver request MUST “be accompanied by
a copy of the complaint” in Rule 4(d)(1)(C)
o What do you mail?
 1. complaint, and 
 2. notification of consequences of not completing with requisition, and 
 3. two copies of the waiver form, and
 4. re-paid method of compliance.
 NOT the summons.
o Why waive?
 Advantages for plaintiff
 1. If the defendant will waive, then the plaintiff does not have to waste
the time and money to send out a process server; mailing the forms is
much easier and cheaper.
 2. If the defendant refuses to waive (when properly asked), forcing the
plaintiff to go ahead with service instead, it is the defendant who must
pay the cost of the service.
 Advantages for Defendant
 1. It can be annoying and embarrassing (especially for a business) to
have a process server show up at your business
 2. The rules encourage waiver by imposing certain obligations and
giving certain benefits to the defendant if he waives. (E.g. the defendant
gains 60 days to answer the complaint after the waiver request was sent
instead of the usual 20 days from the service)
o What does it mean?
 When the plaintiff files a signed waiver with the court, he or she need no longer
file proof of actual service and the FRCP will treat it as if defendant was served
on the date the waiver is filed. 
o RULE:
 (1) Requesting a waiver. An individual, corporation, or association that is subject
to service under Rule 4(e), (f), or (h) has a DUTY to avoid unnecessary expenses
of serving the summons. The plaintiff may notify such a defendant that an action
has been commenced and request that the defendant waive service of a summons.
The notice and request MUST:
 (A) be in writing and be addressed:
 (I) to the individual defendant; OR
 (Ii) for a defendant subject to service under rule 4(h), to an
officer, a a managing or general agent, or any other agent
authorized by appoint or by law to receive service 
 (B) name the court where the complaint was filed;
 (C) be accompanied by a copy of the complaint, 2 copies of the waiver
form appended to this Rule 4, and a prepaid means for returning the
form;
 (D) inform the defendant, using the form appended to this Rule 4, of the
consequences of waiving and not waiving service;
 (E) state the date when the request is sent;

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  (F) give the defendant a reasonable time of at least 30 days after the
request was sent—or at least 60 days if sent to the defendant outside any
judicial district of the United States—to return the waiver; and
 (G) be sent by first-class mail or other reliable means.
 (2) Failure to Waive. IF a defendant located within the United States fails,
without good cause, to sign and return a waiver requested by a plaintiff located
within the United States, the court MUST impose on the defendant:
 (A) the expenses later incurred in making service;
 (B) the reasonable expenses, including attorney’s fees, of any motion
required to collect those service expenses.
 (3) Time to Answer After a Waiver. A defendant who, before being served with
process, timely returns a waiver need not serve an answer to the complaint until
60 days after the request was sent—or until 90 days after it was sent to the
defendant outside any judicial district of the United States.
 (4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service
is not required and these rules apply as if a summons and complaint had been
served at the time of filing the waiver.
 (5) Jurisdiction and Venue Not Waived. Waiving service of a summons DOES
NOT waive any objection to personal jurisdiction or to venue.
 Section (e) - serving an individual within a Judicial district of the United States
o UNLESS federal law provides otherwise, an individual - other than a minor, an
incompetent person (see g), or a person who’s waiver has been filed (see d) - may be
served in a Judical district of the United States by:
 1. Following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located (i.e. you can use
any service method authorized by the state in which the court is located [forum
state] OR where service is made (i.e. any method authorized by the state where
you are trying to accomplish service), OR
 2. Doing ANY of the following
 A. “PERSONAL (in-hand) SERVICE” -  Delivering a copy of the
summons and of the complaint to the individual personally; 
 Notes:
  1. does not need to be in the forum state, just need to be
within the United States.
 2. It does not matter why the defendant is in the united
states, whether at work, home, or on vacation. As long as
the defendant personal receives service, this is proper.
 3. Personal service is still valid if the defendant
subsequently destroys or ignores the documents. The
goal is simply to notify the defendant. 
 4. The defendant does not need to accept or even touch
the papers himself for the service.. As long as the
defendant is aware of the service, its good. (E.g. the
server could announce that he or she was serving the
defendant and put the papers in the defendants
immediate vicinity. 
 B. “ABODE SERVICE” - Leaving a copy of each at the individuals
dwelling or usual place of abode with someone of suitable age and
discretion who resides there; 
 Notes:

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  1. This still requires that an individual be sued, but not
the actual individual defendant.
 2. There is no requirement that the defendant be present
at the time.
 3. Although most individuals have only one, some
people have more than one. (Do not confuse with
domicile)
 4. Abode service can occur in any U.S. state, including
outside of the state where the lawsuit was filed.
 5. “Resides there” generally means that the person
resides there on a permanent basis.
 C. “AGENT SERVICE” -  Delivering a copy of each to an agent
authorized by appointment or by law to receive service of process. 
 Section (f) - serving an individual in a foreign county
 Section (g) - serving a minor or an incompetent person
 Section (h) - serving a corporation, partnership or association
o A domestic or foreign corporation, OR a partnership OR other unincorporated association
that is subject to suit under a common name, MUST be served:
 1. In a judicial district of the united states
 A. In the manner prescribed by Rule 4(e)(1) for serving an individual;
OR
 B. By delivering a copy of the summons and of the complaint
(PERSONAL [IN-HAND] SERVICE  to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to
receive service of process and - if the agent is one authorized by statue
and the statute so requires - by also making a copy of eac to the
defendant; or
 Notes
 An office of the corporation is someone who holds a
formal officer position (e.g. CEO, CFE, Secretary, or
PResident)
 This could occur anywhere in the United States.
 2. At a place not within any judicial district of the united states, in any manner
prescribed by Rule 4(f) for serving an individual, except personal deliver under
(f)(2)(C)(i)
 Section (i) - Serving the US and its agencies, corporation, officers and employees.
 Section (j) - Serving a Freign State or Local Government
 Section (k) - Territorial Limits of Effective SErvice
 Section (l) - Proving Service 
o ~Tells you how to prove that service was properly performed.
o (1) UNLESS service is waived, proof of service MUST be made to the court
o Proof MUST be by the server’s affidavit (i.e. by the process serve who actually
accomplished the service) (Note, an affidavit is a technical term for a document that is
signed under penalty of perjury)
 (except for service by a United States marshal or deputy marshal)
o (3) Failure to prove service does not affect the valid of service. The court may permit
proof of service to be amended. 
 Section (m) - Time limit for service
o ~Gives the deadline for when this must happen

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 o IF a defendant is not served within 90 days after the complaint is filed, THEN the court
(on motion or on its own after notice to the plaintiff) MUST dismiss the action without
prejudice against that defendant OR order that the service be made within a specified
time. 
o BUT IFa plaintiff shows good cause for the failure, the court MUST extend the time for
service for an appropriate period.
 The rule does not specify what would be a good cause - it is up to the court, but
in general the plaintiff will have to establish what attempts have been made, yet
failed. (An example could be that the defendant is abroad, so service is difficult
or the defendant is intentionally trying to avoid service. 

Case:
 Mullane v. Central Hanover Bank & Trust Co. (339 U.S. 306, 70 S. Ct. 652, 94 L. Ed 865 (1950))
o Talks about constitution standard of notion.
o Notice has to be reasonably calculated under all circumstances to appraise the party of the
preceding. 
 National Develop Co v. Trial holding Corp
o

Miscellaneous:
 Shoe has a video lecture titled “Constitutional Requirement for Notice”

Venue
General Rules
 Section 1391 b(1) or b(2)
o May lay venue in any district where ALL defendants reside
 If all defendants reside in the forum state then we may lay venue where any one of them resides
 Resides is defined by statute (residence is the district where you are domiciled)
 Business resides in all districts where it is subject to PJ for this case
o May lay venue in any district where a substantial part of the claim arose
o Fallback Venue b(3) 
 Only applies when there is no district anywhere in the US that will meet the two choices above
 Claims arising over seas
o These rules only apply when P initially files in federal court NOT to cases that have been removed to federal
court
Transfer of Venue
 Must be within courts of the same judicial system (federal courts can transfer across state lines)
o Can never transfer from a state court in Utah to a state court in Wyoming
 Transferor - Original Federal District
 Transferee - One to which the case is sent
 1404(a)
o Transferee must be a proper venue and must have PJ over D (must be true without waiver)
o May transfer to any district at all (even improper venue) if all parties agree and the court thinks it’s a good
idea
o Transferor is a proper venue
o May transfer to another district based on convenience of the parties and witnesses and the interest of justice
 Public factors
 Which court should be burdened with this case
 Which state laws are going to apply
 Private factors
 Where are the witnesses and evidences

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  1406(a)
o Transferee must be a proper venue and must have PJ over D (must be true without waiver)
o Transferor is an improper venue
 May transfer in the interest of justice or it may dismiss
Forum Non Conveniens
 Court dismisses a case because another court makes more sense
 There is no transfer – we dismiss
o Transfer is impossible because the other court is in a different judicial system (can’t transfer to a different
judicial system)
o This comes up when a better court is in a foreign country
 Piper Aircraft v. Reyno
o Public & Private Factors are same as in 1404(a)
 It is crucial that the other court be available and adequate
o Adequate means you’ll get a day in court (not that you’ll get a jury trial, punitive damages, etc.)
 Courts often impose a condition on FNS
o They might have them waive certain defenses in a foreign country.

Subject Matter Jurisdiction

 Remember:
o Personal Jurisdiction= Does the Court have authority over the parties?
o Venue= Which Court within the state is the appropriate forum?
o Subject Matter Jurisdiction= Can it be federal, or does it have to be state court? Is
there a specific court that has JD over it?
 Subject Matter JD given to Federal Courts via Article III of the Constitution
o However, only allows so far as what congress dictates.
o 2 Ways to have SMJD in Federal Court:
 Diversity of Citizenship Jurisdiction (complete diversity)
 Federal Question Jurisdiction
1) Diversity of Citizenship Jurisdiction (28 USC 1332)
 28 USC 1332
o (a) must exceed $75,000 dollars and is between:
 (1) citizens of different states (complete diversity, No P or D can be
from the same state, Strawbridge v. Curtis).
 D and D can be from same state, and so can P and P, just no
crisscross
 (2) Citizens of US and foreign citizens UNLESS
 Foreign citizen legal resident, in which case is a citizen of the
state they are domiciled in (Alienage JD) (Note: dual citizens
do not create alienage JD)
 (3) Citizens of different states plus citizens of different states as
additional parties
o (b) –
o (c) CORPORATIONS (for s. 1332 and s. 1441)
 (1) Corporation is a citizen of every state where it is:
 Incorporated
 Has its principle place of business (determined by where their
Nerve center is at (Hertz v. Friend))
 How to determine the domicile of an Individual

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 o When deciding between two states for domicile (Mas v. Perry)
 Move to new state
 Intend to make it home
 registered to vote there/obtained new driver’s license, change
bank account info, etc.
 How to Determine Domicile of a Business
 Can have multiple citizenships
o Unincorporated (LLC, Union, Partnership, LLP)
 Anywhere that members of said partnership are (Belleville Catering v.
Champaign Market)
o Incorporated
 State of incorporation
 Principal place of business (Nerve Center, usually HQ (Hertz v.
Friend)

 Amount in Controversy Requirement (28 USC 1332 (a))

o Claim must exceed $75,000 and be made in good faith (Rivas v. Hershey =
bad faith claim absolute garbage)
o Multiple claims can be aggregated by single P to meet the threshold of +
$75,000
2) Federal Question Jurisdiction (FQJ) (28 USC 1331)
 FQJ must arise from the Plaintiff’s allegations
o Must be federal law, constitution, or treaty
o Cannot be based on a possible affirm. Defense from the D
 Louisville & Nashville Railroad v. Motley
 Tickets for forever on railroad killed by Congress, filed in
federal court on assumption defense to be raised was a federal
question = no good, because breach of contract = state claim
 Determining FQJ- Grable and Sons
o Guys property seized by feds
o Federal JD over a state law if federal issue:
 Necessarily raised
 Actually disputed
 Substantial
 Capable of resolution in Federal Court
3) Removal Jurisdiction
 Removal gives D (not P) ability to move from state to federal court
o IT IS NOT A TRANSFER BECAUSE DIFFERENT CT SYSTEMS
 D would want removal because
o Article III Judges
o Fed Ct has greater expertise
o Wider jury population
o D lawyer may be more familiar w/ fed courts
 What the D needs to get the case remanded
o 1) Federal SMJ under 28 USC 1331 or 1332

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 o 2) Additional Removal Requirements
 28 USC 1441
 Any civil action brought in state court can be removed to Fed. Dist. Ct.
if the Dist. Ct. would have had original SMJ
 If removal is based on diversity of citizenship, then
 The citizenship of anonymous parties is disregarded
 If removal is solely based on 28 USC 1332, then the case may
not be removed if any of the properly joined defendants is a
citizen of the forum state.
 28 USC 1446 (Procedure for removal)
 Must be filed within 30 days of service
 All Ds must consent
 The thirty day period applies to each D individually
o Ie, if D is served later than others and files for removal,
other Ds can still consent
 If removal based on 1332, then cannot be removed after 1 year
from the commencement date (Unless bad faith on part of P)
 28 USC 1447 (Procedure for Remand)
 Notice must be filed within 30 days of filing for removal

Discovery
1) Required Disclosures
a. Mandatory Disclosures FRCP 26
 Required Initial Disclosures (FRCP 26 (a) (1))
o (A) General
 (i) Name, #, address, of each person likely to have info on the
case
 (ii) Copy of all docs that disclosing party may use to support
claim/defenses
 (iii) Computation of category of damages, and under r.34
release all docs supporting damages
 (iv) under r.34 any insurance agreement that may be liable for
part/whole of judgement
o (B) Exemptions
 (i) Action for review of admin record
 (ii) Forfeiture action in rem arising from fed statute
 (iii) Petition for habeas corpus/any proceeding challenging
criminal conviction/sentence
 (iv) Pro se Action
 (v) actions to envoke/quash admin summons/sub poena
 (vi) Action by US to cover benefit payments
 (vii) Action by US to get student loan
 (viii) A proceeding ancillary to another court; and
 (ix) Action to enforce arbitration award

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  Required Initial Disclosures re Expert Witnesses (FRCP 26 (a) (2)) (usually
90 days before trial)
o (A) Witnesses
 Disclose any witness used to present evidence at trial
o (B) Witness who must provide a written report
 Disclosure must be done w/ written report prepped and signed
by witness
 Report must contain
 (i) complete statement of all opinions witness will
express
 (ii) Facts/data considered
 (iii) Any exhibits summarized above
 (iv) Witness qualifications, include publications
authored w/in last 10 years
 (v) list of cases from last 4 years
 (vi) statement re compensation for testifying
o (C) If witness not required to provide disclosure must state
 (i) Subj. matter of presentation of witness under FRE 702.03.05
 (ii) Summary of Facts/opinions witness will testify to
o (D) Time to disclose
 90 days before trial start
 If evidence is solely for rebuttal, 30 days before trial
o (E) Supp. The Disclosure
 Must supp. These disclosures under r.26 (e)
 Required Pre-trial Disclosures (FRCP 26 (a) (3))
o (A) Must provide following evidence in court
 (i) Name, Adress, #, of each witness, separated by expecting
and may need
 (ii) Which witnesses will be deposed
 (iii) ID Each Doc/exhibit, including summaries of evidence,
separate between expect to offer & may offer
o (B) Time for pre-trial disclosures
 At least 30 days before trial
 w/in 14 days of trial party may object with following
 anything under r.32 (a)
o NOTE: ALL DISCLOSURES IN WRITING, SIGNED, AND
SERVED.
2) Tools of Discovery
a. Depositions (FRCP 30, 31)
 Anyone w/ discoverable info may be deposed
o Can depose an organization, who will then select an individual (r.30
(b)(6))
 When a non-party, must be subpoenaed, if party, must give notice
 Depos can be recorded electronically (r.30 (b)(3)(A)
o Transcript only necessary if later included as evidence (r.32 (c))

14
  Can happen anywhere there is a court reporter
 Limit of 10 Depos to a side (r.30 (a)(2)(A)(i))
 Deposition answers can be objected to, but unless priviledged, must be
answered. Any objection can be Compelled with r.37
b. Interrogatories (R.33)
 Written Qs that require written responses under oath
o Must provide facts reasonably available to them (Different from
depos)
 Limit of 25 Rogs (r.33(a)(1)) per party
o Note: each sub question in a series of rogs also counts towards the 25
limit.
o Can be modified by court order.
c. Production of Documents/Things (r.34)
 Compels production of docs/ESI
o Can also be used to gain access to land/objects as well
 Party must respond with requested docs in 30 days
d. Medical Examination (r.35)
 Can order medical examination when health of a party is in question
 Requires Ct. order, only appropriate when:
o Good cause
o Med/mental condition is in controversy
 Narrow standard of non-party in custody/control of the party.
e. Requests for admission (r.36)
 Determines/helps narrow the issues being disputed
o IDs the contested issues early
3) Scope of Discovery
a. General Scope FRCP 26 (b) (1)
i) Relevant
ii) Non-privileged
iii) Proportional (amended 2015)
i) Relevant to the claim of the case
 Substantial Similarity Rule
o United oil v. Parts Associates
 Defendant trying to pin on 3rd party defendant that they
knew/should have known to warn about their products danger
 Burden is on the opposing party to suggest why the requested discovery is not
relevant
 Requesting party must demonstrate logical relationship between info/item
sought and possible proof/refutation of the claim/defense at trial.
ii) Doesn’t have to be admissible to be discoverable
iii) Non-privileged
 Privileged = term of art
o Confidential Comms between 2 classes of people deemed to be
protected for the purposes of getting legal advice
 Lawyer/doctor/priest and client/patient/parishioner

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 o Underlying facts are not protected
 What you say to your lawyer about stealing candy bar=privil.
 Did you steal candy bar= not privileged
iv) Proportional
 Requests that are unreasonable/burdensome in comparison to the
 2015 amendment made it part of the FRCP

b. Protective Orders (FRCP 26 (c)) (Rivera Case) (Del con Shield and Coca Cola)
 Party will seek protective order over certain information they find
o Is privileged
o Highly embarrassing
o Trade Secret
o Clearly outside the scope of discovery
 Moving party must demonstrate good cause
 Court will conduct a balance of equities
o Will weigh the need for protection of the moving party and the
need/pertinence of the information to the non-moving party
o Court will then
 Come up with compromise
 Deny order
 Grant it
c. Trial Prep- Materials (FRCP 26 (b) (3)) (Hickman)
 Work Product Privilege
o Documents/tangible things prepped for litigation, not discoverable if
gathered in prep. for litigation
 cause of litigation standard (broad test) (want protect)
 assist litigation (narrow test) (want disclosed)
 and can be collected by a party, their lawyer, or someone hired
to collect info, and is protected unless:
 Otherwise discoverable under FRCP 26 (b) (1) or
 Party shows substantial need for the materials
o ie cannot, w/out undue hardship, obtain their
substantive equivalent any other way.
 Diligence may come into play
o (Hickman v. Taylor)
 If court orders above materials discoverable, attorney’s
thoughts/strategies must be protected
 Previous statements may be obtained through FRCP 37 (a) (5)
MOTION to COMPEL

4) Issues re Discovery of Electronically Stored Information (FRCP 26 (c) (1) (B)

 Parties can specify how they would like the documents sent and their form.
 Zubulake v. UBS Warburg LLC.
o Needing access to emails that are stored on data files, D says it is too
costly.

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 o Ruling that they should share the cost, given that there can be cost
shifting measures when the balance between whether or not the
discovery will yield anything substantial
o 7 Factor test
 Extent request is spec. tailored to discover relevant info
 Availability from other resources
 Total cost compared to controversy
 Total cost of production compared to resources available
 Ability to control costs/incentive to do so
 Importance of issue at stake in litigation
 Relative benefits to parties obtaining info
5) Experts (FRCP 26 (a) (2))
 2 kinds of experts
o Consulting expert- do not need to disclose
o Expert testifying at trial
6) Timing and Pretrial Disclosures
 Timing
o FRCP 26 (f) (1)
 All parties/counsel at least 21 days prior to scheduling
conference
 No formal discovery until after this conference has
occurred (FRCP 26 (d) (1))
o FRCP 26 (b) (2)
 Scheduling order must be issued as soon as permissible
 60 days after D appearance, 90 after service of
complaint
 W/in 14 days after FRCP 26 (f) conference, parties must
submit written report of said conference
 Pretrial conference and pre-order
o Conferences under FRCP 16
 Reflects fed. Judges management of cases in court
 Narrowing scope of dispute
 Keep parties’ feet to the fire/fastening settlement
 FRCP 16 (a) (2)
 Control of cases so they don’t get out of hand
o Protracted due to poor management
 FRCP 16 (a) (5)
 Foster settlement- fed dockets are so big
 NOTE: FRCP 16 issues taken up by a magistrate judge to
insulate the fed judges from inadmissible evidence/preserving
their objectivity (FRCP 16 (b) (1))
 FRCP 16 (b)
 Scheduling order (serves as a blue print for case)
 FRCP 16 (c)
 Pre-trial conference

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 7) Sanctions
 3 types of abuses
o Stonewall
o Document dumps (way too much)
o Evasive or misleading in discovery

 Goals
o Deter
o Punish
o Compensate
o Educate
 FRCP 37 Motion to Compel and Sanctions
o (a) Motion for an order compelling disclosure of discovery
 On notice to other parties, (which gives them an opportunity to
respond) can compel disclosure or discovery).
 Must confer in good faith with other party before filing the motion
to compel
 Must be appropriate court.
o (b) Sanctions for failure to comply with Motion to Compel
 Failure to
 disclose (can go direct without Motion to Compel)
 respond
 comply with court order
 Court may respond with appropriate order, including
 Prohibiting disobedient party for supporting
claims/defenses
 Staying futher proceedings until matter resolved
 Dismissing the action as a whole or in part
 Rendering default judgement against disobedient party
 Treating failure as contempt of court.
 FRCP 26 Sanctions
o (g) (1 and 2) Requires attorneys signing discover response to certify they
have read the response and after reasonable inquiry believe it is (objective
standard)
 Consistent w/ discovery rules/warranted by existing law/good
faith argument for extension
 Not interposed for any improper purpose
 Not unreasonable/unduly burdensome/expensive
o FRCP 26 (g) Sanctions (Objective standard)
 File motion or on ct’s own prerogative can move for sanctions
based on belief that rules have been violated (FRCP 26 (g) (1-2)
 Was disclosure correct under the circumstances then
 a reasonable inquiry conducted under the circumstances?

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  No intent to harass and done in good faith, nor
unreasonable, unduly burdensome, or to cause unnecessary
delay
 If there is a violation, MUST impose appropriate sanctions, unless
substantial justification for violation. Can punish, including other
party’s attorney fees.
 Determining sanctions to impose is a subjective factor
based on the evidence to be decided by judge
 Sanctions must be the least severe, but still serve the above
goals, and not be too minimal either.
 Consider
o How much time and resources wasted?
o Intentional or merely negligent?
o Lawyers or the client?
o Impact on the case
 Can be brought against party or attorney, but not against the firm.
o Appellate review of trial court denial of sanctions on 26 (g) (WA State
v. Fisons)
 Appellate standard
 Abuse of discretion, meaning manifestly unreasonable,
based on untenable grounds, or erroneous views of law.
Abuses included:
o Considered opinions of attorneys
o Required showing of intentional avoidance of the
rules (which is not required- objective standard)
o No motion to compel (NOTE: FRCP 26 (g) doesn’t
require a motion to compel
o Attorney’s conduct consistent with local bar
customs (dumb- goes against spirit of law)

Adjudication
1) Constitutional Right to Jury
 Right to Jury is in 3 places in the constitution:
o Article III
o Section 2
o 6th and 7th Amendment (criminal = 6th, civil =7th)
o Merger of Fed and Equity Courts in 30’s = 7th amendment right to jury
issue
 Actions at common law and the historical test
o Chauffers Local 391 v. Terry
 Part 1 of test: Did claim exist back before 1791? If not, find
analogous claim to it. Was it equity or courts? (Claim)

19
  Part 2 test: (this one breaks the tie): Examine remedy sought, legal
or equitable in nature? (Remedy)
 Note: equitable = restitutionary damages, or injunctive
relief.
 FRCP 38 – Right to Jury Trial; Demand
o Right preserved
 7th amendment or statute is preserved to parties freely
o Demand- Party may demand jury trial by
 Serving other parties w/ written demand (no later than 14 days
following filing of the last pleading (filing of complaint or
answer)
 Filing demand in accordance with FRCP 5 (d)
o Specify issues
 May state which issues to be tried by jury, if not, then other party
has 14 days to respond to shorten or expand issues set to be tried
by jury
o Waiver/withdrawal
 Waives right to jury trial unless properly demanded (severed/filed)
 Proper demand may only be withdrawn if all parties
consent
o Admiralty/Maritime Claims
 No right to jury under these rules for that
 FRCP 39 – Trial by Jury or by Court
o When demand is made
 When FRCP 38 demand made, must be marked on docket as a
jury action and must be jury.
o No demand made = trial by judge (court)
o Advisory jury = Jury trial by consent
2) Selection of Jury - Voire Dire and Venire
 Jurors summoned from master role
o Voter registration lists, DMV, etc.
 Summons for jury duty = Venire
 Selection of the jury = Voire Dire (FRCP 47)
o 2 paths for selecting a juror
 For cause = expected to be bias (no limit)
 Preemptory Challenges (limited #, Fed courts = 3 (28 USC s.1870)
 Can’t make a preemptory challenge based on gender or
race alone (JEB v. Alabama)
 Jury size = 6-12 (FRCP 48)
3) Motions for Summary Judgement
 How it works:
o Moving party must:
 Demonstrate no genuine dispute of material fact; and
 Moving party in entitled to judgement as a matter of law.

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  Ie no reasonable person could find for the non-moving
party
 Motion based on pleadings and evidence submitted (admissible)
o Burden then shifts to the non-moving party to demonstrate that a triable
issue exists.
 FRCP 56
o Party may move for MSJ on part or whole of claim
 Granted if:
 Movant shows little to no genuine dispute of fact, and
movant entitled to judgement as a matter of law
 Court should state on record why granting or denying the
motion
o 30 days after the close of discovery = limit for MSJ
o Procedures
 Supporting factual positions party must support assertion that fact
is not genuinely disputed by
 Citing to particular facts on record (discovery)
 Showing materials cited do not/do establish a genuine
dispute of fact
 Objection that fact not supported by admissible evidence- cannot
use inadmissible evidence for MSJ
 Materials not cited
 Only needs to consider cited materials, but may consider
other materials not cited
 Affidavits/declarations
 Must be made on personal knowledge/get out facts that are
admissible, show that affidavit signer is competent to
testify
o When facts are unavailable to non-movant
 When non-movement by affidavit/declaration, show that they lack
suff. evidence to justify their position, the court may –
 Defer considering the motion/deny it
 Allow time to take discovery; or
 Issue any other appropriate order
o Failing to properly support/address a fact
 Give opportunity to redress the fact
 Consider the fact undisputed for purposes of motion
 Grant summary judgement; or
 Issue another appropriate order
o Judgement independent of the motion
 After giving notice/reasonable time to respond, the court may:
 Grant MSJ
 Grant motion not raised by a party; or
 Consider summary judgment on its own.
o Failing to grant all requested relief

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  May enter that a material fact has become established in the case
o Affidavit/Decl. in bad faith
 Must pay other party fees for the phoney MSJ/may incur
sanctions/held in contempt of the court
 Note: when a law has a different standard of gauging the evidence, that standard
is applied moving the goal posts slightly from their original position (Anderson v.
Liberty Lobby).
 Cases:
o Coble v. City of Whitehouse
o Scott v. Harris
 Video evidence is usable in MSJs
4) Post-Trial Motions
 JMOL (FRCP 50)
o If case goes to trial and judge decides not enough evidence, case not
submitted to jury and judge will enter in judgement. (Again, JMOL taken
in best possible light for non-moving party)
o Where credibility of evidence is an issue, it is a matter for the jury.
o FRCP 50 (a)
 (a) General
 (1) Once party has had opportunity to present case at trial, other
party may file for Judgement as a Matter of Law (JMOL) (same as
MSJ, that no reasonable jury would find for them)
 (a) resolve issue against party
 (b) Grant motion for jdmt as matter of law
 (2) Motion can be anytime before case is submitted to the jury.
 Must specify jdgmt sought and facts that entitle moving
party to motion
 Renewing Motion after trial; alternative motion for a new trial (JNOV) or
(RJMOL) (FRCP 50 (b)
o JNOV unconstitutional if moving party did not ask for JMOL before trial
and judge sends it to jury, reserving the JMOL.
o FRCP 50 (b)
 If mtn not granted under (a)and within 28 days following
judgement, moving party can file JNOV or alternatively under
FRCP 59 a motion for New Trial. Court may
 (1) allow JMOL
 (2) Order new Trial
 (3) Direct entry judgment as matter of law.
o (c) In granting the renewed motion
 (1) Must state reasons for conditionally granting/denying motion
 (2) effects of a conditional ruling
 Done with appellate courts in mind, if judgement reversed,
then goes to new trial
 Motion for New Trial (the alternative) (FRCP 59)

22
 o Utilized for when JMOL is inappropriate (when there is sufficient
evidence) but the but the court strongly feels the decision of the jur y is
improper
o Note: courts dislike giving JNOV to party that bears burden of proof, so
new trial instead
o Dadurian v. Underwriters at Lloyd’s London (the jewel insurance fraud
one) Evidence clearly pointed to fraud, jury blind to it.
 Procedure: Must be filed within 28 days after entry of judgement
 Grounds for New Trial
 Prejudicial Error
 Prejudicial misconduct
 Judgement against the clear weight of evidence
 Newly discovered evidence
 Excessive or inadequate damages
o Can order Remittitur (lowering of damages or new
trial)
o Addittitur is not okay in the Federal courts.
o FRCP 59
 (a) general
 (1) grounds for new trial
o May on a motion grant new trial after jury trial or
after non-jury trial
 (2) Further action after a non jury trial
o After non-jury trial, court may, on mtn for new trial,
open:
 The jdgmt
 Take additional testimony
 Amend findings of fact/conclusion of law
 Direct entry for new judgement
 (b) Time to file motion for new trial
 28 days after entry of judgement
 (c) Time to serve affidavits
 14 days after being served to file opposing affidavits
 (d) New trial on the ct’s initiative or for reasons not in judgement
 28 days
 (e) Motion to amend or alter judgement

5) Techniques for controlling juries

 Admissibility of evidence
o Judges can exclude evidence that unfairly prejudices/may confuse juries
o Expert witnesses = huge issue
 How is an expert witness an expert?
 Peer review/publications
 Degree which expert approaches/conclusions treated by
scientific community

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  Jury Instructions
o They ID elements of the case
o Which party has burden of proof and for what
o What the burden of persuasion is
o Are a common basis for appeal/reversal
 Form of the Verdict
o Judge determines what form Jury verdict will take
 Jury announces who wins/damages
o FRCP 49 (a) = Special Verdict
 Jury asked specific questions, judge then makes the final ruling
based on the jury finding
o FRCP 49 (b)
 Allows for combo of two previous verdicts
 General verdict supplemented for more specific questions
 Judicial Comment
o Judge permitted to make comments on the evidence/express opinion on
factual issues (but obviously within bounds)

ERIE SPOOKY DOCTRINE (Rules Enabling/Rules

decision acts)
In diversity cases, Federal courts apply state substantive law and Federal procedural law. When
they conflict however, is where things get tricky dicky schmicky.

1) Quick facts
 How to spot an Erie Issue
 Diversity cases (or supplemental JD)
 Federal courts must follow state substantive law unless there is a directly related
federal law that conflicts with state law
 Federal Courts will always apply federal procedural law
 What is always governed by State doctrine
 Elements of a claim or defense
 Statute of Limitations (SOL)
 Conflict/choice of rule laws (follows where state ct takes the law,
important for venue)
 Rules for tolling SOL (Regan Case)
 Door Closing Statues (Woods case)
o Cases where federal law always governs
 Federal Questions
 Cases where the federal gov. is a party
 International relations
2) Actually walking through Erie Doctrine

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  Is there a Federal Statute or FRCP ‘on point’?
o The key is how you define the issue, look at state law and its
purpose/underlying intent (ex. Gasperini and the cap on damages). You
should be able to make an argument for both.
 Yes = Rules Enabling Act (REA) (28 USC 2072)
 No = Rules of Decision Act (RDA) (28 USC 1652)
 REA (Hanna v. Plumber)
o Is the Federal law constitutional?
 Is it arguably procedural? Does it go to administrative
purposes?
 Does it promote procedural goals of fairness, efficiency,
finality, accuracy?
o If Yes, is it a statute?
 If yes, end there. If FRCP, then
o Does FRCP meet the REA (hint yes)
 Does it abridge a substantive right?
 Hint, no. If its arguably procedural, to the effect that it has
an effect on substantive right, its only incidental and
doesn’t effect it.
 RDA (Guarantee Trust) (28 USC 1652)
o Is state law bound up in the rights and obligations of the parties? (Erie)
 If yes, then apply state law.
o How different is the federal and state law? Twin aims of Erie- Does it
promote forum shopping and result in inequities? (Outcome Determinative
Test (Guarantee Trust)- will it substantially effect the case if in different
forum).
 If yes, then
o Is there an overriding Federal interest that overrides Erie?
 So far only issues over
 appellate courts (Gasperini)
 juries (Byrd)
 AKA integral aspects of the federal court system.

PRECLUSION
1) Claim Preclusion (Res Judicata) Affirmative Defense under 8 (c)
 3 requirements for claim preclusion
o 1) The 2 cases must not involve the same claim or cause of action
o 2) cannot be SAME Parties to two suits (must be identical, P must be P
and D must be D) and or in privity AND
o 3) 1st case must have been final, valid and on the merits.
o 4) exceptions
 1) 3 Different types of Claim Preclusion for determining if same claim
o Transactional Test (Federal Law)

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  Any respect to a transaction or a series of transactions, out of
which the action arose.
 Transaction = natural grouping or common nucleus of fact
o Primary Rights
 Every right invaded in a series of events is a cause of action
 Some are
o Right to bodily integrity
o Right to emotional integrity
o Right to Property
o Right to employment
o Wrongful Act
 One act = One claim.
 Ex car accident, then fist fight = 2 acts, so two possible
claims.
 2) Same party and Actors in Privity
o Agreed
 Agreement to be bound
 Assumed control in case 1 (involved in the case but not named)
o Interest Represented
 Interest legally represented by party in case 1
 Agent to party in case 1 (ex. Guardian to child, Trustee to
beneficiary, Executor).
o Substantive legal relationship/law
 Pre-existing legal relationship, typically involving property
 Special Statutory scheme
 3) Judgement – Is it Valid and final and on the Merits?
o Valid = proper venue, JD
o Once you have a judgement that it is final at the trial level, even if
appealable or on appeal, it is final for preclusion.
o On the merits- if P wins, then a okay! If dismissal- (41 (b))- always on the
merits unless lack of JD, improper venue or FRCP 19.
 4) Exceptions.
o Parties agreed that plaintiff may split claim
o 1st court expressly reserved P’s right to maintain 2nd action
o P unable to rely on certain theory or relief in 1st case due to limitations of
SMJ that they want in 2nd case was not available at og time
o Judgement clearly unfair
o To sue over ongoing issues
o When policy of preclusion outweighed by needs and rights of P
2) Issue Preclusion
 4 Requirements for Issue Preclusion
o 1) Must be
 Identical issue
 Litigated in previous case
 Decided in Previous Case

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 o 2) Essential to the Judgement in Case 1
o 3) Judgement Final, valid, and on the merits
 Same issues as in Claim preclusion
 1) Must be Identical…. (Cromwell)
o Go to the record of the lower court
 What issues and evidence raised in the lower court? Did the issue
on point come up?
o Litigated
 Stipulated issue = not litigated
 FRCP 36 admittance = not litigated
 Failure to prosecute = not litigated
 Default judgements for P = No issues litigated- Schaffner likey
(Split of authority, some courts treat default judgement as D
confessing to allegations and bind them in later cases- this is a
minority view).
o Decided (Hypos)
 General verdicts are a little more ambiguous, and specific verdicts
are a little more preferable. Requires some reading between the
lines in order to ascertain what has been decided, but pretty much
it has to be decided, and it seems to come up somewhat in
contributory negligence. Ex.
 General verdict for Plaintiff- generally decided issues
 General verdict for Defendant- ambiguous
 Special verdict for Plaintiff – ambiguous.
 2) Essential to the judgement in case one (Rios)
o Ex. Joe (P) in special verdict found contributory negligent, but so was
Sally is special verdict (D). The Sally claim, however, is not precluded, as
it wasn’t essential to the above case.
o Rios
 All three parties in the og case driving negligently
 Rios then sues Davis for negligence
 Is Davis or Rios negligence in preclusion and are bound to
findings in previous cases?
 Test:
 Hold other issues the same but switch the issue at hand for
preclusion. Does it change the case?
o If yes, then it was essential, if not, not essential, and
therefore not precluded.
o NOTE: when there is a split, then neither issue is precluded. Alternative
grounds for judgement may be given
 3) Parties
o Who can be bound by case 1?
 Same party or in Privy
 Basic DP principle that one is never bound by a judgement unless
their interests were represented in the first case.

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  Everyone gets their “day in court”.
o Defensive issue Preclusion: Mutuality v. Non-mutuality Blonder-Tongue
Case
 Mutuality doctrine
 Produced inconsistent terms as a result of issues regarding
claim preclusion.
 Non-Mutuality
 If D not party of a the original case, can enforce a issue that
would have be precluded and bound the P to it (Defensive).
o Offensive preclusion Parklane Case
 Plaintiffs are trying to bind the Defendant to the decision brought
by the SEC (Offensive).
 4 exceptions PARKLANE EXCEPTIONS in which in event of
non-mutual offensive issue preclusion Court should refuse to bind
the defendant because of some unwanted incentives
 Wait and See Plaintiff (Plaintiff could and should have
joined in claim 1)
o Ex. Wife and husband in car accident. Wife sues
first, then husband waits and sees results.
o Not claim precluded, but generally not binding
under issue preclusion because it would
disincentivize joinder and gives party second
chances.
o Does not apply to
 Lack of incentive to vigorously litigate Case 1
o When case 1 is small, and case 2 is much larger in
terms of damages.
o Would be unfair to the defendant, as they would
only try a little to litigate it.
o Again, not applicable to defensive.
 Inconsistent Prior Judgements
o When there are multiple cases against D for the
same issue, but they differ in their decisions (only
takes one).
o Unfair to both previous Ps and D, as well as
inconsistent and not within the principles of
fairness.
o Again, doesn’t apply to Defensive
 Opportunities that may benefit P in 2nd form when
compared to the 1st
o How different is the new jd from the og case?
o Ex. Does it give the D new procedural opportunities
to try and litigate the issue more fully?
 Ex.
 Unable to cross examine

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  Lack of full discovery
 Call on witnesses
 Right to Jury is NOT an exception
o If there is a significant difference? If yes, and is in
favor of D, then they should not be bound by
previous case.
o Again, doesn’t apply to defense.
o Other exceptions
 The party against whom preclusion is sought could not, as a matter
of law, have obtained review of the judgment in the initial action
 The issue is one of law and the two actions involve claims that are
substantially unrelated or a new determination is warranted in
order to take account of an intervening change in the applicable
legal context or otherwise to avoid inequitable administration of
the laws
 A new determination of the issue is warranted by differences in
the quality or extensiveness of the procedures followed in the two
courts or by factors relating to the allocation of jurisdiction
between them
 The party against whom preclusion is sought had a significantly
heavier burden of persuasion with respect to the issue in the initial
action than in the subsequent action; the burden has shifted to his
adversary; or the adversary has a significantly heavier burden than
he had in the first action
 There is a clear and convincing need for a new determination of
the issue because of the potential adverse impact of the
determination on the public interest or the interests of persons not
themselves parties in the initial action, because it was not
sufficiently foreseeable at the time of the initial action that the
issue would arise in the context of a subsequent action, or because
the party sought to be precluded as a result of the adequate
opportunity or incentive to obtain a full and fair adjudication in the
initial action

3) Federalism
 State-to-State
o Case 1 is in State A. Case 2 is in State B
 State B looks to see if State A had PJ and if it did then the
judgement was valid (validity goes in the preclusion analysis)
 State B uses State A’s preclusion analysis
 State-to-Federal
o Case 1 is in State A in state court. Case 2 is in State B in federal court
 Same analysis as state-to-state
 Federal uses State A’s preclusion analysis
 Majority view ▪ Treat state A like it would if it was in state B

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  Minority view ▪ Free to diverge somewhat from the preclusion
rules of the judgment-rendering state
 Federal-to-State
o Case 1 is in Federal. Case 2 is in State
 State needs to use the same preclusive effect that the Fed would
 Federal-to-Federal
o Federal common law of preclusion governs (Transactional Test)

JOINDER AND SUPPLEMENTAL JD

BASICS
 Though procedural mechanism, cannot alter requirements of PJD/SMJ/Venue
 Must have all three
o You can supplement Diversity JD with supplementary JD.
1) Joinder by Plaintiffs
 FRCP 18 – Joinder of Claims
o (a) General
 Can make as many claims as it has against an opposing party may
be joined
o (b) Joinder of contingent claims
 May join two claims, even if one is contingent on the other
o Notes:
 Preclusion = stick, R.18 is the carrot.
 Can have different claims from different transactions
 Can try to overwhelm Ds into settlement of some
 Makes litigation and keeping track of case easier
 FRCP 42 (b)
o Separate Trials
 For convenience, to avoid prejudice, or to expedite and economize,
the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or 3rd party claims.
 When there is no FQJD or DJD (United Mine Workers v. Gibbs)
o Feds can use supplemental JD over a state claim if
 Both claims arise out of same set of facts (common nucleus of
operative fact)
o 28 USC 1367 – Supplemental JD
 (a) except under subsections (b) and (c) if feds have JD over one
claim district court should have supplemental JD over all other
claims that are so related to claims in the action, and involves
joinder or intervention of parties
 (b) If claim comes from 28 USC 1332, then no claim by
PLAINTIFFS under FRCP 19, or 24.
 (c) District Courts may decline to exercise Supp. JD IF
 Claim is novel or complex issue of state law

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  Claim substantially predominates over the claim claims
over which feds have og JD (Gibbs rule)
 District court dismissed claims that it had og JD over or
 If in exceptional circumstances, there are compelling
reasons to do so.
 (d) Period of limitations tolled under subsection (a), and if
dismissed will still be tolled for 30 days, or if state law provides
longer, then longer.
 Permissive Party Joinder by Plaintiff
o FRCP 20
 (a) Persons who may be joined
 Plaintiffs
o They assert right to relief jointly, severally or in an
alternative.
o Any question of law or fact common to all plaintiffs
arises out of action
 Defendants
o Any right to relief asserted against them may be
joined, so long as from same transaction
occurrence, or series of transactions and
o Any question of law or fact common to all Ds arises
out of action
 Extent of relief
o Neither P nor D needs to have interest in all the
claims for relief floating around. Courts can assign
multiple judgements.
 (b) Protective measures
 Court may issue orders, including an order for separate
trials, to protect party against embarrassment, unjust
expense, etc.
o FRCP 21
 Misjoinder of parties
 Not grounds for dismissal of action. On motion or its own,
court may on just terms add or drop a party and may sever
any claim against them.
o Schwartz v. Swan – Permissive Joinder for Plaintiffs.
 Claims must arise out of the same transaction
 Claims must share a common operative nucleus of fact
2) Joinder by Defendants
a. Compulsory Counter Claim
 FRCP 13 (a) – Counterclaim (Note: 28 USC 1367 does not apply here, so
issues of 28 USC 1332 don’t matter.)
o Compulsory Counterclaim
 (1) In general- pleading must state any claim party has against
opposition if the claim

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  From Same transaction
 Does not require additional party who ct does not have JD
over
 (2) Exceptions
 Opposing Party sued on its claim by attachment or other
process that did not establish PJD over pleader in claim
 Must be made in the answer or it is waived.
o Permissive Counter Claim FRCP 13 (b) Permissive Counterclaim
 A pleading may state against any claim against an opposing party
that is not compulsory (ie doesn’t arise from the same transaction)
 Must have independent basis for SMJ
b. Cross Claim
 FRCP 13 (g) Cross claim against a co-party
o May raise claim against co-party if claim
 Arises out of same transaction occurrence, that is subject to matter
of og counterclaim or original action. Cross claimant may be
claimed against as liable in asserted action against the cross
claimant.

3) Impleader (AKA) 3rd Party Complaint
 FRCP 13 (h) – Joining Additional Parties
o Rules 19 and 20 govern the addition of a person as a party to a
counterclaim or cross claim
 FRCP 13 (i)
o Separate trials; Separate Judgements
 If court orders the separation of claims, they can still order on the
cross claims, so long as they have Jurisdiction to.
 FRCP 14 3rd party practice
o (a) when a defending party can bring in third party
 (1) timing
 Must obtain leave from the court to do so IF serving 14
days after filing original answer
 (2) Third-Party Defendant
 Person served with summons and 3rd party complaint
o Must assert any defense against the 3rd party claim
under rule 12
o Assert any counter claim against 3rd party under 13
(a)
o May assert against the plaintiff any defense that the
third party plaintiff has to plaintiff’sclaim and
o May also assert against the plaintiff’s any claim
arising out of the transaction or occurrence that is
the subject matter of the plaintiffs claim against the
3rd party.
 (3) Plaintiff’s claims against 3rd Party

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  May assert a claim against third party for anything arising
out of the transaction or occurrence that is subject matter of
P’s claim against D. 3D must then assert their defenses
under R12 and any counter or cross claims under 13 (a)
and 13 (g).
 (4) Motion to strike
 Any party may move to strike 3D claim, or to have it tried
separately
 (5) 3D claim against non- party
 May proceed under this rule against a non-party who may
be liable to 3D for all or part of the claim against it
 (6) 3D Complaint In Rem
 If –
o (b) When a P may bring in a 3D
 When claim asserted against P, can bring in #d that may be liable
to them
 Markvicka v. Brod-Head
 NOTE: when there is an issue of Supp. JD, a claim utilizing Diversity JD is
insufficient for a P to utilize in suing a 3D. (Upsloping, 28 USC 1367 (b) and 28
USC 1332.) – Owen Equipment v. Kroger.

Helpful Links:
 

 FRCP 17 (a) (1) Who can rep another party

o An action must be prosecuted in name of real part in interest (RPI)
 Will not necessary receive benefits from suit (ex. An agent, executor,
guardian)
 Subrogation cases are good too.
o RPI inquires contrasted w/idea of capacity
 Persons and entities ability to be sued
 (Children, the mentally disabled)
 Should also be distinguished from standing
 Groups wanting to sue the government for dams, etc.
 FRCP 17 (a) (2)
o Who represents the government is described here.
 FRCP 17 (b)

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 o Capacity

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