You are on page 1of 49


DIVERSITY JURISDICTION......................................................................................................3
FEDERAL QUESTION – ARISING UNDER JURISDICTION.................................................................................4
** Interpretation of Meaning & Application Test  Implied Cause of Action.....................................................6
Pre- § 1367...........................................................................................................................................................10
PERSONAL JURISDICTION...................................................................................................................................15
MODERN – FUNCTIONAL PJ...........................................................................................................18
**“stream of commerce” problem.......................................................................................................................18
** “single contract” problem...............................................................................................................................18
IN REM & QUASI IN REM  POWER OVER PROPERTY...........................................................................20
CONSENT (3 KINDS) .................................................................................................................21
PERFECTION OF POWER  NOTICE .............................................................................................21
FORUM NON CONVENIENS.............................................................................................................25
CHOOSING THE GOVERNING LAW...................................................................................................................26
AN ERIE ANALYSIS .............................................................................................................26
COMPLAINT; DISMISSAL ON THE PLEADINGS.........................................................................................29
“Notice Pleading” The Standard for Modern Pleadings.....................................................................................29
Dismissal on the Pleadings...................................................................................................................................29
ANSWER, REPLY AND AMENDMENTS..................................................................................................30
**Test for affirmative defenses ............................................................................................................................31
Amendment ..........................................................................................................................................................32
TESTING THE SUBSTANTIALITY OF CLAIMS................................................................................................34
SUMMARY JUDGMENT...................................................................................................................34
VOLUNTARY DISMISSAL AND DEFAULT................................................................................................35
ROLE OF JUDGE & JURY......................................................................................................................................37
INSTRUCTIONS & VERDICT.............................................................................................................37
JURY DELIBERATIONS...................................................................................................................38
Seventh Amendment..............................................................................................................................................38
Standards of Review.............................................................................................................................................38
Interlocutory Appeals...........................................................................................................................................39
Supreme Court Practice – Appellate Juris. .........................................................................................................39
DISCOVERY & PRE-TRIAL MANAGEMENT....................................................................................................40
SCOPE OF DISCOVERY RULES.........................................................................................................40
DISCOVERY MECHANISMS .............................................................................................................41
PRIOR ADJUDICATION..........................................................................................................................................45
STARE DECISIS.........................................................................................................................45
Mutual Collateral Estoppel  Applies when Parties are the SAME...................................................................47
Non-Mutual Collateral Estoppel..........................................................................................................................48
Offensive and Defensive Use of Non-Mutual Collateral Estoppel.......................................................................48

Jurisdiction: The power of a court to adjudicate a case (hear, decide, issue an order, force parties to obey an order).
• Federal Jurisdiction (limited jurisdiction)
o Article III provides jurisdictional power; legislative grant is necessary to convey power to the
courts. Congress need not exercise entire scope of authority, can chose to confer only some parts
of its jurisdiction
o Original and exclusive jurisdiction: over controversies between two or more states.
o Original but not exclusive jurisdiction:
 Ambassadors or other ministers of foreign states.
 Controversies between U.S. and a State.
 Proceedings by a state against citizens of another state or aliens.
o Writs of certiorari (discretionary jurisdiction).
• State Courts are courts of General Jurisdiction  can hear any case that arises under law from any source,
including federal

Subject Matter Jurisdiction (SMJ): The extent to which a court can rule of the conduct of persons or the status of
things; over the nature of the case and type of relief sought. SMJ is the heart of the authority of a court
• Cannot be waived by parties
• FRCP 12(h)(3) - Court SHALL dismiss for lack of SMJ. Can be noted at any time during a proceeding by
parties motion or sua sponte [EXCEPTION: Des Moines – no collateral attack for lack of SMJ]


• P did not plead SMJ in pleadings, his citizenship not on record [both parties from NC];
• P didn’t bring this up at trial. TC found for D, P benefits from his own omission
• Today FRCP 8(a) – pleading must state basis for jurisdiction
BOTTOM LINE: Anyone can bring up no SMJ at any level in the case even for first time, no waiver.

Art. III § 2: Federal jurisdiction over controversies between the citizens of different states; Outer limit of power
28 USC §1332
o Some jurisdiction remains unused by §1332 (1) Amount in Controversy requirement; (2)
Complete diversity across the V requirement - (Strawbridge v. Curtis)
o DIVERSITY = complete diversity AND meeting Amt-in-Cont.
o Citizenship based on Domicile [Federal definition, state may differ]
 Domicile: where you are found and where you intent to remain
 W/O current domicile: [where you are found is NOT where you intend to remain], you’re
a citizen of your last known domicile (Mas v. Perry)
 Alienage Jurisdiction: An alien admitted as permanent resident is considered citizen of
state they live in
 Citizenship of corporations §1332(c)
• Incorporation (can be all states, makes diversity hard) AND
• Principle place of business (where factories are, where $$ made, ct decides)
**NOTE: Diversity is determined at the time complaint is filed and isn’t affected by
subsequent changes in domicile of parties [ie: if they move to same state, ct retains jur]
o Amount in Controversy
 Aggregation – adding together the amount in controversy in distinct claims between
identical parties to meet requirement – consider one cause of action
 § 1332 permits aggregation of amount in claims against SAME party
 CANNOT aggregate amount in controversy for claims to different parties
[AB 50K, AC 50K is NOT okay]
**NOTE: marriage is an exception

**NOTE: this is confused upon entrance of §1367 and supplemental
 1332(b) – if judge is suspicious that claim is really less –may impose costs, must
make a good faith assertion of damages

Husband & Wife Mas sue Perry. H citizen of France. H&W lived in LA last as students, doesn’t count as domicile.
Perry from LA. Perry says no complete diversity.
BOTTOM LINE: Citizenship for purposes of Div Jur if you don’t have a domicile is last place you were
domiciled and intended to remain.


Article III, § 2: Gives federal courts jurisdiction over cases “arising under this Constitution, the Laws of the United
States, and Treaties…”; Art III gives authorization for wide scope as long as they come under federal law, BUT
statutory grant is less than constitutionally allowed

28 U.S.C. § 1331
1. Well Pleaded Complaint Rule
2. Federal Cause of Action Test
3. Ingredient/But For Test
4. Meaning and Interpretation Test [Implied CoA Test]
 Historically, why enact?
o To encourage uniformity of interpretation of federal law.
o Federal judges are seen as more qualified/greater expertise.
o Provide for vindication of federal rights unpopular in some states

1. Well Pleaded Complaint Rule

• Federal question jurisdiction must exist from the CoA itself in sparest form, NOT from anticipated defenses
included just in case they aren’t ordered to file a response to the answer
• Asks if the P would have to raise the federal issue in a complaint if she had written it in the sparest form,
and looks at ONLY those element s.


Non-diverse parties. Mottleys received lifetime RR pass in settlement for negligence claim. Congress passed
statute illegalizing these passes. Mottleys sue RR for not renewing passes. Says if RR following statute, then was
unconstitutional breach of 5th amendment DP if applied retroactively
• CT says constitutional argument is a defense of their CoA
BOTTOM LINE: “Arising under” requires that P’s statement of his own CoA must fall under federal laws, not
enough if its only the anticipated defense that arises under. [No Federal Jurisdiction]
**Since the case will involve federal issue, can probably use § 1257 to jump to SC in appeals process

2. Cause of Action/Creation Test 

o From Holmes in American Well Works
o VERY limited
o Statutory: ONLY arises under when federal law specifically creates a CoA in the statute
o Constitution: if Federal Law of const gives right to sue
3. “But for” Ingredient Test
o From Marshall in Osborne
o Arises under if “but for” legislation, there would be no controversy
o Very (too) expansive
o Constitution: would include jurisdiction over any federal creation made by constitution (Osborne
& Planter’s Bank)

o Statutory: federal statute must explicitly state whether you can sue or be sued in fed court
 Osborne said if congress created entity, wouldn’t exist “but for” congressional act, can be
in fed ct
 Harms narrows Osoborne, says its not enough that federal law is an ingredient, MUST
state in statute that claim can be brought in Fed court
 SG v. Red Cross (1991) decided that for a chartered entity, SC said must explicitly say
“sue and be sued in federal court”


Bank of US trying to stop Ohio from collecting unconstitutional tax
• Charter of Bank of US had provision for Fed Jurisdiction
BOTTOM LINE: Marshall alt. holding  Bank would not exist “but for” fed statute, therefore arises under


Fighting over ownership / assignment of copyright - Rights are contractually assigned
• 28 USC § 1338 Creates Copyright – no language about jurisdiction or suing
• All legal issues at dispute have nothing to do with federal law. All the law that determines the outcome has
to do with state law [issue is really contractual ownership issue, § 1338 only creates thing being sued over ]
BOTTOM LINE: Construe language of arising under narrowly, must have specific language allowing CoA in
federal court. [Wasn’t a ruling about § 1331 but SC has extended reasoning to it]

4. Meaning & Application Test 

o Arises under federal law if a federal law or the Constitution must be interpreted or applied by the
court in order to resolving a case (even if the claim itself is a state law claim)
o Flows from the need for expertise/uniformity in interpreting federal law
o This is what we use today
o Statutory Grant: if a federal statute needs to be interpreted in order to decide a state law claim,
then case can be brought in federal court if
(a) Express condition within the federal statute that the federal claim can be brought
in fed court, or
(b) Implied federal CoA test [Cort v. Ash]
o Constitution: Could be applied anywhere under Constitution
o Case Evolution
 Smith – arises under if resolving state law issue necessarily depends on resolving federal
law issue
 Moore – contradicts Smith, says cannot arise under if it is not ABSOLUTELY necessary
to look at Federal law
 Smith & Moore leave a mess behind that Merrell Dow finally cleans up
 Merrell Dow: only arises under if passes embedded federal CoA test. Wax says it doesn’t
make much sense, but it does cut down the fed ct docket
o Expertise – Fed CT better to decide Fed issues
o Uniformity – arbitrary interps between states
o Rights– when you have a protected federal right you should get to sue in fed ct
 Cort v. Ash questions for Implied CoA
1. Is P a member of the class for whose benefit the statute was passed?
2. Does legislative intent reveals purpose of a private cause of action?
3. Would a federal CoA advance the underlying purpose of the legislative scheme?
4. Is the CoA is a subject traditionally relegated to state law, so that it would be
inappropriate to infer a cause of action based solely on fed law?
**Problems: ambiguous, hard to apply, and 4 parts – how do you break tie?



Challenge under Missouri law to stop a co. from investing in certain federal bonds on the ground that an Act of
Congress authorizing their issuance was unconstitutional
• MS statute made it unlawful to invest securities whose issuance wasn’t authorized by valid law [this was a
state law CoA]
• BUT to resolve issue, CT must determine meaning/application of act of congress to see if the bonds were
BOTTOM LINE: § 1331 allows fed jur bc the vindication of a right under state law necessarily and turned on
substantial issue of federal law; only ok if fed claim rests on reasonable foundation (not colorable)


** Holding contradicts Smith **
P seeking to bar D from using certain defenses as per clause in Kentucky ER Liability Act that has to do with Fed.
Safety Appliance Act
• arguably you would have to look at that Act, and determine whether or not the ER was in compliance
BOTTOM LINE: Doesn’t arise under if its not ABSOLUTELY necessary to look at federal law

** Interpretation of Meaning & Application Test  Implied Cause of Action

Ps (aliens) sue M in state court. M removes. Ps challenged removal and SMJ of fed court, file motion to remand.
Alleged basis of SMJ was arising under.
• 5 state law tort claims (only 1 depended on a violation of federal law – would show negligence per se)
BOTTOM LINE: SC says NO SMJ under §1331. Creates the EMBEDDED CoA TEST which says that if and
only if the federal law that you’re interpreting could create a CoA on that claim directly.

P has state law CoA based on 18 USC § 610 about corporations not donating to political campaigns
BOTTOM LINE: Court creates Implied CoA Test which this fails bc (1) meant to protect general class of public;
(2) Criminal statute, no private CoA intended; (3) Compensating P doesn’t advance; (3) corporations usually
governed by state law


§1983 – gives right to sue state officials for violation of 4th Amendment, but these are federal officials
• Bell v. Hood: no express CoA but CT said still had power to award damages, infers CoA from that
BOTTOM LINE: SC allows implied CoA against the federal officials for violation of 4th amendment
DISSENT: Should not infer the CoA – systemic – they knew how to create the CoA against the state officials
and clearly did not do it for fed officials (expressio unius)

1. Joinder of Claims
• FRCP 18 – Joinder of Claims and Remedies: allows joinder of all claims one party has against
(a) a party MAY join ANY claims against another party [permissive]
 RJ hovers over Rule 18 – you MUST join claims arising under same T&O or
waive them
 If there is related claim you want to bring, but no independent SMJ, use § 1367
• FRCP 13 – Counterclaim & Cross-Claim: requirements and allowances joining claims against
parties who have already asserted claims against them [D  P]
(a) Compulsory Counterclaims: must assert counterclaim if it arises out of same T&O or RJ waives
(b) Permissive Counterclaims: discretionary, MAY assert additional counterclaims of diff T&O
(f) Omitted: If counterclaim is omitted by oversight or if justice requires, court can allow amendment
(g) Cross-Claim against Co-Party: Permissive, can assert cross-claim against co-party if it arises from
the same T&O or relates to property that is subject matter of original action. Waiver doesn’t apply.
2. Joinder of Parties
• FRCP 14 – Impleader: Permissive.
(a) D can bring in a 3rd party who may be liable to D for all or part of P’s claim against D. If within 10
days of serving answer, don’t need to notify. After that, must get leave of all parties. [Any joint
tortfeasors type claim or joint liability claim is going to satisfy requirement.]
 3rd party D has to file all motions as provided in Rule 12
 3rd party D can assert any claim against original P and the D that is out of same T&O
 Any party can move to strike 3rd party claim for severance or sep trial
(b) When counterclaim asserted against P, P can bring in 3rd party plaintiff
**SMJ problem when there’s mandatory counterclaim but NO separate SMJ for it, use § 1367
• FRCP 19– Mandatory Joinder of Necessary and Indispensable Parties: parties needed for a
just adjudication
(a) If SMJ isn’t messed up by bringing in this party & they are necessary bc complete relief
can’t happen w/o them OR their interests may impair the person’s ability to protect their interest or
leave any one in the suit open to incurring inconsistent obligations
(b) If not feasible to join the necessary party, do we really have to join them?
 If indispensable, then dismiss case
 If not indispensable, continue case w/o party
• FRCP 20 – Permissive Joinder of Parties: grants permission for persons to join together to sue
other parties and to sue multiple parties. NEVER mandatory, no waiver.
(a) Can join together in one action if arises out of the same T&O AND they have a question of law and
fact in common. No express element of timing.
 Judge keeps discretion, not your RIGHT.
 All relief demanded doesn’t need to match up
• FRCP 24 – Intervention: allow strangers to an action to force themselves on the action
(a) Intervention as of Right: Must have (1) statutory right to intervene; OR (2) interest in property or
transaction that is subject of action & the outcome will impair or impede ability to protect the interest
UNLESS existing parties adequately represent the interest
**Not mandatory, bc if you choose to it is your choice, but in these cases CT must allow
(b) Permissive Intervention: when (1) statute gives conditional right; OR (2) claim or defense of applicant
and main action have question of law and fact in common. WHOLLY discretionary on court.

P (MI) sues Synthes (PA) for defective product in Fed Ct (state law under diversity). Then P sues Dr. (LA) and
Hospital (LA) in state administrative proceeding and then LA state court.
• parallel actions arising out of the same set of events  no RJ bc diff parties & diff filing times
• In Fed Court, D moves for dismissal for violating Rule 19 bc says indispensable party not joined [D could
have impleaded other D under 14]
BOTTOM LINE: No dismissal bc Dr. & Hospital were not “necessary parties. Joinder for Joint tortfeasors is
ALWAYS permissive.

Jurisdiction over claims brought between existing parties or existing parties and new parties, over which there is
no independent source of federal SMJ for those claims/parties when considered separately
**Original claim can have either FQ or Diversity Jurisdiction
 Benefits
 Avoids Piecemeal Litigation
• Ensures litigants won’t be dissuaded from bringing suits in federal court bc they
can’t bring them all together
• ensures that RJ won’t bar receiving a complete remedy
 Promotes Judicial Economy
 Discretionary  judge can split and dismiss claims. See § 1367(c) Considerations:
 When they are the main claims & fed claim is secondary
 When fed claims drop out early in the proceeding
 Issues of comity and relationship btwn state v. fed
 Novel/confusing issue of state law
 Pendant Claims:
 When DIVERSITY is basis for Jurisdiction
• A & B must be diverse & amt in controversy must be + $75K [if same parties,
just aggregate amount, don’t need independent claim for $75K+]
• Supplemental claims under diversity do NOT have to be related to the same
 When FQ is basis for Jurisdiction
• Retain basis for jurisdiction even when federal claim drops out
• Supplementary Claims must be out of same T&O [“case” or “controversy,” must
share common nucleus of operative fact] From Gibbs.
 Pendant Parties
 When DIVERSITY is basis for jurisdiction
• Pre- § 1367
o When the original claim drops out, MUST continue to meet
requirements of § 1332
o Final picture is what matters, there must be diversity to remain in fed
o Every member of a class action had to satisfy amt. in cont.
o Rule 23 NOT an end run around diversity
• § 1367 (b)  Must maintain complete diversity according to § 1332.
o Leonhardt -- even tho § 1367 doesn’t say anything about timing, the
CT ruled that §1367 applies to persons added to action [infer about timing bc all joinder
of persons rules except for Rule 20 are AFTER suit brought]
o Patterson problem allows joined Ps suing together to get around amt. in
controversy requirement as long as one primary claim meets amt. in cont.
o Zahn problem allows class actions to get around complete diversity
o Encourages strategic behavior, violates spirit of Kroger
 When FQ is basis for jurisdiction
• Must arise out of the same T&O. From Aldinger.
• Pre- § 1367 Cases
o Aldinger – pendent party jurisdiction is okay as long as statute does not
contain express language against it

o Finley – plain statement, can only bring in parties that the CoA
explicitly says you can
1. Was the federal law claim substantial & was state claim of same T&O?
2. Did congress expressly negate jurisdiction over claim? Did it expressly allow it?
3. Look to discretionary factors above
 28 USC § 1367 [Part of Judicial Improvement Act of 1990] –
 Purpose
• To supersede and negate Finley
• Tried to preserve prior law, esp. Kroger, Zahn
 § 1367 (a): Broad Scope. Except as provided in (b)(c) or other statute, if there is a
primary claim that fed court has SMJ over, then there is also jurisdiction over any supplementary
claim that arises of the same T&O, both when they are new claims between same parties and when
these claims are against new parties brought in under joinder
 § 1367 (b): Bites out of A. When Jurisdiction over primary claim is based on diversity,
SHALL NOT have supplemental jur over claims by P against persons made parties under 14, 19, 20,
24 when exercising supplemental jur would violate requirements of § 1332.
**wants to preserve complete diversity
**ONLY applies when primary claim is diversity
**Only applies over claims “by P against persons made parties,” not when plaintiffs are joined
 § 1367 (c): Codifies discretionary aspects from Gibbs. Never a right. CT can decline to
exercise supplemental jurisdiction. Cannot send out the whole package, just split the claim:
o If claim involves a novel question of state law.
o If supplemental claim substantially predominates over primary claims over which there is
independent basis for jurisdiction.
o All claims with jurisdiction have been dismissed.
o Exceptional circumstances with compelling reasons.
 1367 (d) – “tolling rule” allows P whose state claims are dismissed out of fed court to get
around SoL. 30 days after day its dismissed from Fed Ct to file. So you won’t lose your CoA.
**1367 (d) expands the state CoA– could be open to constitutional challenge on Erie

Pre- § 1367
Joinder of Claims Constitutional Statutory
GIBBS CON, yes (t&o) Yes (§ 1331) (t&o) Discretionary
“aggregation” Yes (anything) Yes (§ 1332)

Joinder of Parties
ALDINGER Yes (t&o) No § 1343 Presumption, Yes
KROGER Yes (no complete No § 1332 Complete diversity
FINLEY Yes if same T&O No § 1346 Presumption, No

Pre - § 1367 Cases

UMW V. GIBBS **Pendant Claim, FQ Jur
Gibbs sues UMW under Fed § 303 Claim (secondary boycotts) and 2 state contract claims. Not diverse.
• Old Test (formal but not functional) from Hurn v. Oursler – must be from same CoA (unclear)
BOTTOM LINE: When primary claim is FQ and secondary is State, if claims arise under a common nuclease
of operative fact [T&O test] such that one would ordinarily be expected to try all of these claims together
because they involve similar facts or issues [avoids piecemeal litigation & harmonizes w/ RJ; a more functional
test]; leaves judge w/ discretion to allow or not allow, not a right
**Note: Court allows state claim to remain under Fed Jurisdiction even though federal law claim dropped out
on JNOV. Court retains jurisdiction over supplemental when FQ primary claim drops out

**Pendant Parties
ALDINGER V. HOWARD **Pendent Party, FQ Jur
A sues state officers under 42 § 1983, wants to bring in county. [At the time, § 1983 not applicable to county, now it
• FQ jur, no independent diversity jurisdiction
• Claim against county would be supplemental state claim against a new party
BOTTOM LINE: Can’t come in bc § 1983 expressly prohibits (as they construe it). Default assumption that
pendent party jur is ok unless there is express language against it.
** Holding was really about §1343 Civil Rights Jur, but CT extended it in practice to § 1331

OWEN V. KROGER ** Pendent Party, Diversity Jur

Primary Claim: K (IA) sues OPPD(NB). Supp Claims: OPPD impleads Owen (IA). K files against Owen. Then,
OPPD gets SJ and drops out. Only Supp Claim left, w/o independent ground under § 1332.
• P argues that (like Gibbs) CT should retain jurisdiction if it had it when the claim was originally filed
BOTTOM LINE: Court rejects P’s argument. Must retain § 1332 requirement of COMPLETE diversity between
a P and a D. Cannot make end run around diversity w/ strategic timing.
**in this case applies to citizenship, but discusses § 1332 as a WHOLE so amt. in cont. matters too

FINLEY V. US **Pendent Party, FQ Jur

Primary Claim: F sues US based on § 1346 FTCA. Secondary Claim: Amends, files state tort claim against city of
SD & utility comp. Non-diverse parties, no independent SMJ.
• § 1346 has its own jurisdictional provision in it
BOTTOM LINE: Scalia makes plain statement rule that if Congress wants to authorize pendent party
jurisdiction they must explicitly allow it
**Implications for how we read § 1331 & § 1332 since neither authorize pendent party jurisdiction

Post § 1367 Cases

IN RE ABBOTT LABS **Zahn Problem
State law antitrust Class Action filed in state court in LA, removed to federal court by D on diversity jurisdiction. P
seek to remand to state court for lack of SMJ based on failure to meet amt. in cont.
• Class reps met the amount in controversy requirement (with attorney’s fees), but the claims of the class
members did not.
BOTTOM LINE: CT looks to § 1367 which does NOT make an exception to supp jur for Rule 23. Decides it
overrules Zahn and says it’s ok if only class rep meets amt in cont, rest come in as supp.
**Note: Congress said their intent was NOT to overrule Zahn. No binding precedent on this for other circuits bc
CT didn’t decide it. Circuit split.

Patterson (KS) sues Bridgestone(OH) – Div of citizenship good. All state law claims. Only 1 party meets amt in
cont. Issue of whether other plaintiffs can ride coattails?
• This CT says NO, but gives wrong reason. They say plaintiffs not joined together by Rule 20. Wrong!
• FRCP 20 case – all parties may join together where same T&O to sue D
BOTTOM LINE: If you read the rule, § 1367(b) only applies when P makes claims AGAINST persons made
parties under joinder rules. Plaintiffs joinder ignored, only Defendants is looked to. Goes against Kroger’s goal
of saying the suit does not matter about what it looks like in time.

 Aberrational in our system because it allows the D to pick the forum & is therefore in tension w/ the idea that
the P is the master of his complaint
 Purpose to protect D’s interest in an impartial forum. Parallel to allowing P to choose what court to sue in.
 Core of Removal  D can remove a case if that case could have been brought in federal court initially. He
cannot remove a diversity case that is being heard in the state where one of the defendants is from.
• If ANY D is from the state where the claim is originally filed it cannot be removed
• BUT if a 3rd party defendant is from the original state, it CAN be removed unless the plaintiff sues him
and he becomes a defendant proper
• Most courts say must be unanimous decision between Ds to remove
• If it is being removed on Federal Question, is STILL subject to the well pleaded complaint rule!
CANNOT be a defense!
• Shamrock Oil Doctrine – Counterclaims CANNOT support removal because it is too easy for D to
• May get complex cases that involve § 1367  must decide if the WHOLE package can come into
federal court, if the answer is yes you can remove it unless D is from the state where claim filed
• All sources of Fed SMJ work for removal, even those w/ their own jurisdictional statute
 28 USC §1441 – Removal
• §1441(a): any case that could have been brought initially in DC by the P, can be removed by D to DC in the
place where state court sits.
• §1441(b):
o FQ jur  action removable w/o regard to residence or citizenship of parties
**subject to well pleaded complaint rule
o Diversity  if ANY D is a citizen of the forum state then removal is NOT allowed
**Shamrock Oil – counter claims support removal
** 3rd party D (not made D proper) cannot defeat removal
• § 1441(c): Either redundantly restates that § 1367 packages are allowed to come up OR unconstitutionally
allows court to take whole package and has discretion to remand state law parts or to decide them. No one
pays attention to it. American Fire & Casualty.
• § 1441(f): If the state court didn’t have jurisdiction to hear the case, that doesn’t preclude Fed court from
hearing it
 Defeating Removal
• Add fictional/insubstantial/unnamed parties 
o Subject to the “Real Parties in Interest” Doctrine
o Rose v. Giamatti: Nominal parties may be disregarded for purposes of diversity of citizenship.
• Claim amount in controversy less than $75,000.
• Additional parties
o Under a primary federal question claim, §1367(a) gives jurisdiction to pendant state law claims -
adding parties really doesn’t defeat removal.
o Under diversity claim, joining a party who a citizen of the state in which the action is brought can
defeat removal under §1441(b). BUT subject to Party in Interest Doctrine
• Additional claim  Adding a claim that does not have supplemental jurisdiction under §1367 can defeat
removal of the entire case.
• Dropping federal claim  court has discretion to decide whether to dismiss, remand, or keep
 28 USC § 1446 – Procedure for removal
(a) File in DC with short & plain statement
(b) Timing – 30 days w/in receipt of initial pleading or else waived; if only amendable claim is removable,
within 30 days of receipt of amended pleading
(c) After notice of removal to DC, D give written notice to other parties and notice to state court
 28 USC §1447 - Procedure after Removal (generally)
• Minute removal motion is filed, state court loses authority and case deemed removed  DC can issue cert
to get old info on case

• 1447(c): motion to remand must be filed w/in 30 days of filing or summons or else waived [lack of SMJ
never waived]; must be remanded either for (1) lack of SMJ; OR (2) procedural defect [if was defective
removal, MUST remand]
• 1447(d) Review of Remand Orders:
o ** order remanding a case to state court from which it was removed is NOT reviewable EXCEPT
for § 1443 civil rights remands
 Slows things down – interlocutory appeal necessary
 Already been reviewed twice – on removal, on remand
o If reason was presumptively lawful but was a MISTAKE, it’s still unreviewable.
o BUT motions denying remand can be reviewed on appeal bc (1) Doesn’t interrupt case; (2) Single
decision maker is prone to error – so review
**[OVERRULED] EXCEPTION to unreviewability from Thermtron which interpreted that only lawful
grounds for remand are those actually provided for in (c).

P filed in state court. FQ claim with state claims w/ no ind smj. Non-diverse parties. D removes to Fed court. P
drops fed claim. P files motion to remand leftover state law claims.
• D argues that § 1447 (c) prohibits remand since was removed properly & § 1441 (c) says supp claims can
be remanded if state law dominates; reads neg pregnant  D wants dismissal since state SoL has passed
[now this would come under § 1367(d) tolling provision]
• CT still has SMJ bc when fed claim drops, CT retains SMJ over state claims, has discretionary power
BOTTOM LINE: Remand is valid. There is common law authority to send claims back just as there is common
law authority to dismiss claims. Implies that § 1367 (c) discretionary factors apply to removal.

• Power of a particular court in a particular place (geographic, local) to summon a party in and subject the
party to its judgment
• Requires both having the power and perfecting the power

• Forms of PJ:
(1) In Personam: literally, power over the person, anything having to do with the person, obligations, duties and
rights; traditionally power could only be asserted in jurisdiction where person was physically present
(2) In Rem: action proceeds against the property of a person (property made available to satisfy judgment AND
action itself is about the property)
(3) Quasi in Rem: presence of property & seizure of property become an entrée into solving any disputes
involving owner of the property, but the damages can only go up to limit of value of property (ad damnum)
• TRADITIONAL (formal) to MODERN (functional) Views of PJ
o Traditional View
 Territorial basis – person needed to be within the borders or get IR/QIR properly
 Looked forward to justify the technicality with Due Process (new idea at the time of
Pennoyer)  saw it as way to protect individual from overreaching of court
 With the increased mobility of society & revolution in commercial life of multi
state entities , we began creating legal fictions, departing from traditional view
• Constructive Consent: like in automobile statutes
• people found this scary and potentially oppressive, opened door for
modern concepts
 Traditional still preserved by modern – just expanded to make it more functional

P induced by fraud to come into WV so that D could serve process upon him. Service not valid if outside WV. need
valid service in valid form through valid methods
• PJ requires 1) Valid power over the person; 2) perfection of service.
BOTTOM LINE: No PJ if power not perfected. Fraud invalidates service of process.

Action 1: Mitchell sued Neff (CA) in Oregon state court, QIR applied. Property was not attached, Neff was not
personally served but notice was put in OR newspaper. [State law required seizure & Publication]. Mitchell won.
Action 2: Neff property sold to Pennoyer to satisfy judgment of Action 1. N sues to eject P. Says action 1 void.
BOTTOM LINE: Perfection of PJ defective. Did not seize property as required by law, so no proper notice.
Without proper notice, exercising jurisdiction amounts to violation of Due Process under 14th amendment.
Points to presence as a functional test for PJ. QIR/IR must give proper notice.

“Automobile statutes” Legislatures try to fit the concepts of DP and PJ together through 2 concepts of (1)
constructive consent; and (2) presence
BOTTOM LINE: Court upheld as ok. No principled limit on how far states can go to abrogate traditional
constraints of PJ.
PROBLEM: No obvious limit to these legal fictions. Sense that it violates fairness & abuse that Pennoyer is
concerned with bc this isn’t really presence.

o Modern View 
Minimum Contacts Test **broadest & deepest common law doctrine in Civ Pro
 Minimum Contacts: To have power over a party the party must have minimum
contacts with the forum such that the exercise of PJ does not offend the “traditional notions of fair
play and substantial justice.” International Shoe.
**Doesn’t set out clearest standard, but concepts are used to determine.
**applies both to individuals & corporations
**Minimum contacts must be met AT time defendant acted, not time of suit

 Concepts to Determine Minimum Contacts:
(a) Reciprocity: if you deliberately benefit from laws of the forum – only fair that you can then
be called to account for anything harmful you do in the forum. Shoe.
(b) Undue Burden: specific to party depending on reasonable expectations of party depending
on affiliation with the forum (depends on size, position, scope of activities)
(c) Purposeful Availment: deliberate choice to relate to the state in some meaningful way
o Hanson v. Denckla  no purposeful availment when unilateral action of another
creates contact there
o McGee  Specific Jur met when Co. purposely reached out to state to get that
specific business
o WWVW  no purposeful availment just bc it was foreseeable that product
would get there since it didn’t seek direct benefit from that forum such that it could
foresee getting sued there
o Keeton v. Hustler Magazine, Inc.  purposeful availment to sell magazines
o Stream of Commerce cases = Tricky for Purposeful Availment purposes
 Occurs when out of state manufacturer sells components to manufacturer outside
of state who then incorporates them into product elsewhere
 Party at beginning of stream of commerce may not have purposefully availed,
but may have had full knowledge of where the parts would end up
 Gray v. American Radiator  most expansive view, says purposeful direction
makes it foreseeable that component would get to end point and that is enough for
PJ. Weighs more that must be convenient forum for P.
 Asahi v. Superior Court  Court Split! (O’Connor view looked at as majority)
(a) Concurrence (Brennan): Sending goods into stream of commerce in
substantial quantities constitutes purposeful availment even if they don’t
know goods will end up in certain state bc it’s foreseeable that they’ll end up
anywhere and they benefit from sales all over
(b) Plurality (O’Connor)  mere awareness does not constitute purposeful
availment. Clearer evidence required such as advertising, infrastructure,
designing it for that market. Has had precedential value of majority opinion.
(d) Forum Specific Factors: Pragmatic set of factors about whether state forum has interest in
hearing the case, whether it’s most convenient, expeditious place for the action, the law that
will apply, the witnesses & the evidence, redress to citizens, extent of inconvenience
o Asahi  all judges agree that this case fails “fair play and substantial justice”
because forum factors not there [Two foreign parties]
o Burger King  where D has purposefully directed activities to the forum state,
jurisdiction is presumptively reasonable, D has to make “compelling case” that it isn’t
 General Jurisdiction: subject to any suit brought against you in the state.
Appropriate when activities are so “continuous & systematic” that D would expect to be subject to
suit there on any claim and would suffer no inconvenience from defending there. Perkins.
 Specific Jurisdiction: when the defendant has sufficient minimum contacts with the
forum state to warrant jurisdiction over him for matters arising from his activities within the forum,
but not necessarily sufficient to warrant general jurisdiction
 “Shoe Spectrum”
1. No Contacts within the state  No PJ [unless served personally in state by TAG JUR]
2. Casual or isolated contacts  No PJ
3. Single acts  only specific jurisdiction over claims arising from that act. McGee
4. Continuous but limited activity in the forum state  specific jurisdiction. Burger King
5. Systematic and Continuous in-state contacts  general in personam jurisdiction allowing D
to be sued in the state for any claims, even one completely unrelated to its in-state contacts.
Perkins v. Benguet Mining.

 Long Arm Statute: Allows state to expand reach of courts in asserting PJ beyond
territorial limits; Serve them out of state, but establish PJ over them in state; can go to the limits DP
will allow, but some “short long arms” do not extend power (EX: single activity statues, omnibus
statutes, commission of tort)
o Minimum Contacts in US as a whole? – Matter for Thought
 (4(k)(2) – Omni Provision Allows min contacts to be used on US as a whole; could
get rid of bulge provision & Omni Provision if looked at contacts w/ US as a whole
 Constitutional  if minimum contacts w/ US as a whole
 Unconstitutional & doesn’t respect federalism

Modern – Functional PJ

INTERNATIONAL SHOE CO. V. STATE OF WASHINGTON **establishes PJ as we know it today

WA suing Shoe in state ct for not paying into to state unemployment fund. Shoe incorporated in DE – headquarters
in St. Louis. Service was personally delivered to one of the salespersons in the state, with copy sent by reg. Mail
(substituted service) to the MO office (statute requires either – here both done).
• Shoe objected to power AND perfection  (1) NOT present in the state, not properly served; (2) NOT
doing business in WA bc manufacturers not there, headquarters not, officers not, don’t make contracts so
not selling
BOTTOM LINE: SC created Minimum Contacts Test requiring min contacts w/ forum so that maintenance of
suit does not offend traditional notions of fair play and substantial justice AND reasonable method of
notification. [Becomes constitutional Due Process requirement]. CT says Intl Shoe has power and perfection
was reasonable. Allows out of state service to stand.

**“stream of commerce” problem

** Systemic relevant factors & purposeful availment **
Titan (OH) made valve & sold to American Radiator (manufacturer in PA). Endpoint sale in IL to P.
• State Long Arm Statute authorized PJ for all torts committed in the state
BOTTOM LINE: Outer Limits of what’s allowed. Even though no evidence of purposeful availment, can infer it
because it was foreseeable that product would get there in the stream of commerce. Says it meets DP. Relies on
“forum factors” to allow P to resolve issue conveniently. Also reciprocity bc by selling there they are invoking
protections of state.

** “single contract” problem

P is beneficiary of a CA insurance policy. Ins Co. in TX. D refused to pay, P sued in CA basing jurisdiction on CA
Unauthorized Insurer’s Process Act, subjecting foreign corporations to suit K w/ in-state residents. P wins and tries
to enforce judgment in TX (should have to enforce under FF&C). D resisted enforcement by collateral act arguing
lack of PJ. D says exceeds DP limits.
BOTTOM LINE: Single contract, if purposeful availment & substantial enough will give PJ SC holds this is
purposeful availment for purposes of specific jurisdiction because this involved continuous course of dealing
over time. Reaching out on part of company (bills, trafficking that involved deliberate, purposeful availment).
Systematic factors  CA has interest.

**Single Contract Case – Unilateral NOT purposeful. NO Specific Jur.

DE trust and trustee, lady moves to FL, changes beneficiaries, dies. Action 1: FL. Daughters sue Trustee (DE). FL
CT held that daughters get all. Action 2: DE. Trustee tries to settle rights/duties under trust. Daughters try to argue
RJ. Trust says no PJ in action 1.
BOTTOM LINE: SC held that FL did NOT have sufficient minimum contacts to exert PJ over DE trustee. The
unilateral activity of those who claim some relationship with a nonresident D cannot satisfy the requirement of
contact with the forum state  need purposeful availment.

**Foreseeability not enough w/o purposeful availment

NY residents bought car in NY. Driving to new home in AZ. Accident in OK. P sue WWVW (NY) in OK.
• WWVW didn’t make adds or sell in OK.
BOTTOM LINE: Mere appearance of your product in the forum not enough. Contacts are NOT sufficient to
establish PJ. No purposeful availment bc there was no “continuous or systematic” attempt to do business in
OK. Merely a unilateral act on the part of P that took the product there. NOT sufficient to foresee that chattel
will travel. [Distinguishable from Gray bc that was purposefully put in stream of commerce]

NY res brought suit against OH co. in fed ct in NH. SoL driven choice. DC in NH dismissed for lack of PJ over P,
and 1st Cir affirmed. Said P had lack of minimum contacts.
• Forum factors  NH has no interest in resolving this claim, not their citizen, no efficiency gains, allows
these negative factors to tip the scale away from PJ
BOTTOM LINE: Minimum contacts has to do with the D NOT the P. P can bring their suit anywhere, it’s the
D’s DP the court needs to protect. Lower courts gave too much weight to forum factors. There was MUCH
business being done by Hustler in terms of circulation.


BK based in FL. Franchisee in MI. Franchisee signed contract w/ BK, it said FL LAW should be used [Choice of
Law NOT forum selection]. BK sues in FL. Franchisee says no PJ.
BOTTOM LINE: SC says there is PJ. There was purposeful availment bc Franchisee reached out to FL and
could foresee being sued in FL based on the contract and its clauses. Forum has an interest in suit. Franchisee
did get reciprocity. [Mere act of purchasing not enough, but this was relationship]


P sues (CA state CT) alleging defective tire. D is CS, Taiwanese tube manufacturer. They implead Asahi (Japan). P
settles. Only indemnity suit left between Taiwanese maker & Asahi.
• A makes valve in Japan, sent to Taiwan, put in tube in Taiwan, was sent eventually to CA
• Only tiny % of A’s business involves CS (but it is 100s of 1000s of parts).
BOTTOM LINE: Case dismissed for lack of PJ. No majority opinion. 8 of 9 judges agree that forum factors
outweigh in this case bc there is NO interest in hearing case between two foreign parties.
Concurrence (Brennan): Stream of commerce is about foreseeability of product getting into forum.
Plurality (O’Connor): Final sale is NOT enough. Must have affiliating factors to constitute purposeful
availment such as advertising there, marketing there, making product for there, not just end sale.


Philippine Co. during WWII being run out of Ohio. CoA about stock dividends, NOT in Ohio. General Jurisdiction.
BOTTOM LINE: Where activities of foreign co. are continuous, pervasive & systematic, Gen Jur is OK.


P sue for relatives’ deaths in helicopter crash in Peru. Deceased worked for WSH (TX) alter ego of Conscorio
(Peru). Helicopter made by Helicol (Colombia). Suit filed in TX.
• D Bought helicopters in TX, CEO negotiated in TX, pilot training in TX, checks sent from TX
BOTTOM LINE: NOT minimum contacts for general jurisdiction. No property, no place of business, not
licensed, no continuous, products not used etc. Purchasing goods in forum NOT enough for jurisdiction.
DISSENT (Brennan): Says there is enough to support specific jur here bc CoA relates to contacts w/ state.

In Rem & Quasi In Rem  Power over Property
o (Traditional) Territorial basis – person needed to be within the borders or get IR/QIR properly
o Move to Modernity: since Pennoyer – extension of IR and QIR past real property and chattel 
bank accts, stocks, copyrights etc.; come under scrutiny in light of DP ideas – move to more modern
o Seizure of Property Still Functional in the Law
1. Forfeiture of illegal property or property used illegally
2. Securing resources to satisfy judgments
3. Seizure/Sequestration to take back property that has been sold on installment contracts
4. To Levy Judgments
5. Also an end run around a state’s short long arm
o Modern View:
 Need to have the proper degree of minimum contacts w/ the forum even in IR/QIR
 Still allow traditional to work but only IF they meet the minimum contacts std. Schaffer.
• IR won’t change much bc if you own real property in the state, pretty clear that
you would have sufficient contacts in the state [like specific jur]
• QIR won’t work as often, need more contacts bc property won’t necessarily give
enough [like general jur]
 TAG JURISDICTION  Bodily presence, even for one moment, they can serve you.
Still retain territorial bases, Minimum Contacts just substitute for when there is NO territorial basis.
 dominant rules is that Tag Juris is okay – but they are at pains to
show that it meets Shoe anyway = use presence as contacts
 Sup Ct is going to have to take up this issue again

**[not good law anymore since Shaffer]
Harris (NC) owed Balk (NC) $180. Balk owed Epstein (MD) $344. Harris goes to MD, Epstein served him w/ writ
of attachment. QIR action seizing Balk’s property (thru Harris). Harris paid his share.
• Balk sues Harris in NC. Harris made RJ assertion – settled already by paying Epstein.
• Balk launches collateral attack saying no PJ over his property wants Min Cont. to be std for QIR/IR
BOTTOM LINE: Valid QIR PJ juris over Balk in form of his property in Harris. The debt goes w/ the person –
situs of the debt is wherever the debtor is.


P (stockholder) sues Greyhound & corp. officers in DE. QIR PJ est. by sequestration of stock (form of seizure)
authorized by DE statute bc says location of stock is in DE. CoA arose in OR, officers from (headquarters) in AZ.
• QIR bc stock was not directly at issue in action.
• Corp. Officers say NO PJ  want min contact std extended to QIR/IR
BOTTOM LINE: Abandons formality, moves to more functional modern Shoe approach. Can use these
traditional concepts only if they accord w/ DP. ONE functional standard for min contacts that applies to all.
**If you own real property – would probably have sufficient contacts (IR won’t change, QIR becomes hard)

Couple married in WV, lived in NJ. Both sue for divorce, W in CA, H in NJ. He goes to CA for 3 days. She slaps
him w/ process. He contests, says there is no PJ.
PLURALITY OPINION(SCALIA): TAG JUR is ok. (1) Min Contacts didn’t mean to get rid of traditional core,
just meant to deal with absent defendant. ALSO (2) The historical pedigree should be followed bc it comports
w/ fair play and substantial justice since it is what society has come to expect, so would meet Intl Shoe Std.
CONCURRENCE (Brennan): Says it comports w/ min contacts bc during the trip he availed himself of Cali

Consent (3 Kinds)
1. Constructive Presence/ Constructive Consent  As in “Automobile statutes” ortortfeasor long arm statutes
2. Consent by Appearance  General or Special Appearance
o Special Appearance: when you come to object to PJ [all states allow]; direct attack
 WIN – dismiss on 12(b)6 motion
 LOSE – either stay and adjudicate or default (if you default, can’t collaterally attack)
 Limited Appearance States  only liable for limited amount in QIR/IR action
 NO Limited Appearance  liable for the WHOLE amount in QIR/IR action
o Default: Stay Away entirely, later can collaterally attack the judgment
 Win: judgment against you set aside
 Lose: forfeit right to attack merits of first judgment
3. Consent by Contract  Forum Selection Clauses
o Not always honored
o When in state court – each has own rules about forum selection clauses
 Depending on fairness, min contacts, context of claim, etc.
o In federal court under federal law is a different matter
o In Bremen v. Zapata and Carnival Cruise  Federal law exclusive governs bc both

Contract between US co. German co. says disputes to be litigated in London.
BOTTOM LINE: Forum selection clause is efficient, they both benefit and therefore there is surplus value to be
utilized. In international cases esp. it’s good to follow forum selection clause.


BOTTOM LINE: SC makes a strong statement  fed courts should give high degree of deference to forum
selection clauses. Fair bc gives greater degree of certainty to business, decreases litigation costs, concentrates
resources, gives Shutes benefit of bargain

Perfection of Power  NOTICE

o Notice  Procedural steps to perfect power (service of process)– 4(e),

 Consists of personal service of summons OR
o Seizure of property & notification (usually posting) BUT must provide proper notice
o QIR  in Federal Situations is LAST resort, very steep priority of IP, IR, QIR
o Pennoyer – does the formality provide the party w/ notice in timely and effective fashion such that
it allows him to come in and have the opportunity to be heard
• Adequacy of Notice
o Standard of Best Notice Practicable which is that which is reasonably calculated, under all the
circumstances to apprise interested parties of the pendency of the action and afford them an

opportunity to present their objections and to give them reasonable information about what is to be
o In-person service of process is the standard against which other means of notice are measured. In
person > Service By Mail > Service by Publication
o Publication ok when you don’t know where they are and you can’t by due diligence discover
o FRCP 4 - Service
• 4(c) – P must issue responsible for service of summons with complaint
**Note: a party may not affect his own service (but anyone else 18+, including attny, can)
• 4(d) – Waiver of Service [Create Incentives to waive, penalizes not waiving]
o in effect, a way to get service in fed system by mail instead of in person (personal service is very
o 30 days to return waiver, if you do, you get 60 days to answer the complaint
o doesn’t mean you waive objects to venue or jurisdiction
o cannot force someone to waive right to personal service, but there is an incentive  get more time
to file answer and if they refuse they would have to pay the additional costs
• ** 4(e) –where and manner. goes with 4(k)
o (1) Pursuant to law in state where Dist. Ct. is located or in which service is effected
o (2) regardless of what state law says, can always fall back on serving personally to anyone of a
responsible age (person of suitable age & discretion at usual dwelling place…)
o Can be served anywhere in the US
• ** 4(h) – corporations and associations
o determined by state law or by any law that describes service on corporations;
o The individual does not have to be one who is formally designated by the corp. or under state law
to receive service  Must be reasonably calculated to affect notification of the proper authorities
w/in the organization Hellenic Challenger
• ** 4(k) – Territorial Limits – PERFECTS power of PJ
o ** (1) Service establishes jurisdiction when (A) - “piggy back provision” – D is subject to general
jurisdiction in that state[fed ct has same reach as state ct]; (1)(B) “bulge provision”– 3rd parties
joined under 14 or 19  can be served 100 mi. from courthouse
 some courts think this only works where you have minimum contacts w/ the party you
seek to bring in w/ the rule.
 How could you use the bulge rule all the time but still have it be consistent w/ Shoe? ---
Ex: short long arm – so use QIR ??
o (1)(D) when authorized by statute  short long arm not an issue!
o (2) “Omni Provision” – In Federal Question Action– if no min contacts in any state and its FQ,
but you have min contacts w/ US as a whole, summons perfects PJ
• ** 4(m) – time limit (within 120 days of filing complaint or dismissed w/o prejudice)
• 4(n) – (1) seizure of property if statute says its ok; (2) if can’t serve process by reasonable effort in
jurisdiction  court can assert jurisdiction over D’s asserts in district provided by state law
**applies if you can’t find them, you still need to have MIN contacts over them


Investors in Louisiana sued British corporation in LA federal court. LA long-arm statute did not reach British
defendants. (didn’t want to sue in NY)
BOTTOM LINE: Court refused to create a rule authorizing service of process in this situation, leaving it for
Congress. some foreign defendants doing business in the U.S. might not be amenable to service of process in
any one state.
** Arguable that Omni would not hold up to the 4(k)(2) requirements bc could be brought in NY

Trust set up under NY Banking law that allowed for consolidation of many trusts into one; periodic accountings
were made of the funds; issues were dealt w/ and each accounting closed the account against future actions.
• NY statute provided for notice by publication in the newspaper for IR.
BOTTOM LINE: There should be a functional standard that applies to all actions regarding what is sufficient
notice. Ct makes parallel moves to Shoe, Shaffer. Must give best notice practicable. Decide what’s practicable
by balancing test
**Constitutionalizes Process side of DP


Attempt to foreclose on and sell mortgaged prop for nonpayment of taxes. Notice by seizure and publication (even
though they had their last address)
BOTTOM LINE: not GOOD ENOUGH. Constructive notice must be supplemented w/ service by mail to last
known address, esp since this information is known. Must be BEST notice practicable. [May be subversive
because it says that ordinary traditional manner doesn’t cut it anymore]

Greene v. Lindsey
Eviction notice posted on tenant’s doors not sufficient notice in housing project bc kids tear them down.
BOTTOM LINE: Notice must be mailed to the tenants bc that is most reasonable way to reach them.

• Final set of rules governing where a trial takes place
o Convenience of the parties involved (particularly D’s)
o Relation between litigated events and place of trial.
o Suitability of the forum as place for resolving a particular dispute
• Venue has sub-constitutional status:
o § 1391 gives a huge amount of discretion to structure venue the way they want
o Due Process fully vindicated at the PJ level
o Balancing of practicality, rather than substantive rights.
o Burlington Northern RR v. Ford  Venue statutes are allowed to “discriminate” btwn in-state and
out of state residents
• Venue can be raised by P or D  things may change, another place becomes more convenient
• Venue is WAIVABLE  must pose timely objection
• Forum-selection clauses contract around both PJ and venue.
• When can you exercise the fallback provision? [no other district where the action could otherwise be
brought ]  can’t be any other district where venue can be appropriate
o Interpretation 1: Can’t use fallback if there is another place where you have venue (even if you
don’t have PJ in that place over all of the Ds)
o Interpretation 2: If there is no other place where venue and PJ don’t conflict
o May just have to separate claim instead of bringing it together
PROPER** Law applicable in the transferor forum follows the transfer. This prevents D’s from forum-
shopping: searching for a forum with more favorable law is moot; law follows transfer. Allows P’s to
forum shop.
• When Venue was Improper  It’s ok to transfer if PJ was improper also [Goldlawr, may be unfair bc if
venue WAS proper but there was no PJ would just be dismissed]
28 USC § 1391 - Federal Venue Statute
• § 1391(a) - Diversity Cases can be brought in:
(1) - District where any D resides, if all D’s reside in same state, OR
 Looser idea, like “domicile,” looks at state residency, if you’re there some of the time
(2) - District where substantial part of the events or omissions giving rise to the claim occurred, or
where there is a substantial part of property that is the subject of the action, OR
(3) -**Fallback Provision-** If there is NO district in which the action may otherwise be brought,
district in which any defendant is subject to personal jurisdiction at the time the action is
 § 1391(b) – Federal Question Cases may be brought in:
(1) - District where any D resides, if all D’s reside in same state, OR
(2) - District in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated, OR
(3) -**Fallback Provision** If there is no other district in which the action may otherwise be brought,
Judicial district in which any D may be found,
 MAJORITY VIEW: “be found” = where there is PJ when action filed
 MINORITY VIEW: broader, includes Tag Jur. [sitch where you have no min contacts]
• § 1391(c) - Corporate Defendants  where corp “resides” for purposes of § 1391(a)(1) and (b)(1).
o Reside in any district in which it is subject to PJ at the time the action is commenced.
o In a state (where D subject to PJ) with more than one judicial district, deemed to reside in any
district in that state within which its contacts would be sufficient to subject it to PJ if that district
were a separate state.
o If there is no such district, deemed to reside in the district with which it has the most significant
• § 1391(d) – Aliens  subject to suit in any district in US regardless of where alien is domiciled
• § 1391 (e) -- applies when gov't official is a party [same as first two, but fallback is where P lives if no
property involved in action ]

28 USC § 1404 - Change of Venue [When Venue was Proper]
• Proper Venue = transferor have SMJ, PJ, venue but there is someplace that would be “better”
• § 1404(a): For the convenience of parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it might have been brought.
o Horizontal Transfer to another fed ct, not dismissal;
o Van Dusen Rule applies, choice of law follows transfer
28 UCS § 1406 - Cure or Waiver of Defects [When Venue was WRONG in first place]
• NO VAN DUSEN  do NOT take the law of the transferor forum w/ you bc it wasn’t a legit forum
o SoL? Initial filing has to be within the transferee’s SoL; Majority lets SoL apply
• §1406 (a) - The district court of a district in which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.
o ONLY when venue in the transferor court is improper.
o Court has power to dismiss or transfer to court with proper venue.
• §1406 (b) - Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a
party who does not interpose timely and sufficient objection to the venue  waived if not timely objected
to (FRCP 12(b)(3)).
• Transferor has no venue (but must have SMJ)
• Transferor can have no PJ (as long as venue is also wrong) (Goldlawr)
• Transferee forum must be where “could have been brought” initially  venue, PJ (& SMJ) – Hoffman

Copyright infringement suit. P from IL. D from TX. Initially filed in TX. D tries to move to IL in the “interest of
• P says fails plain language of §1404(a) bc IL had no PJ over D
BOTTOM LINE: “Where it could have been brought” means in the first instance, NOT at the time of the transfer
or if jurisdiction had been waived. Didn’t want to make Venue a sword to drag P all over.
DISSENT: Venue meant to codify FNC which would allow transfer to place could not have originally been
brought. Also the court has discretion and can make sure not a sword.


PA resident hurt by product. PA 2-yr SoL for injury passes. Brought contract claims in PA Fed CT. Then suits on
tort claim in MS w/ 6-yr SoL. P then moved to transfer venue to PA. Fed CT in PA tried to throw out suit on SoL.
BOTTOM LINE: SC said Van Dusen rule must apply. SoL of transferee state apply.
**Wax thinks bad decision bc allows strategic behavior.

BOTOM LINE: If under § 1406 you seek transfer from forum where you lack both PJ and Venue, you are still
allowed to transfer rather than dismiss.
DISSENT: Silly bc gets dismissed if no PJ but venue is right, but transferred if Venue wrong and No PJ.

Forum Non Conveniens

• A court may resist imposition of its jurisdiction even when jurisdiction is authorized by the letter of a
general venue statute.
• ONLY dismissal, NOT transfer  only if there is an alternative forum available willing to take the case
• Only D can make Motion
• In federal system, FNC ONLY applies where this is a more convenient non-federal court (state or foreign) -
§ 1404(a) covers the rest.
• Substantive law of the alternative forum applies:
o SoL may be waived by the ∆ as condition of dismissal (let you move to more convenient forum,
if you allow this).
o Substantive law taken into account in dismissal decision (will the different law significantly
impact the outcome of the case?).

• Dismissing forum must have venue, PJ and SMJ.
• ** No venue and PJ necessary in the alternative forum (can be waived) ** [unlike in §1404]
• FACTORS to Determine whether to granted FNC [can also look at these for § 1404]
(1) Plaintiff’s Specific Interest
a. Connection to the current forum versus transferee forum
b. ability to build case
c. substantive law to be applied
(2) Defendant’s Specific Interest
a. Presence of witnesses/evidence
b. 3rd parties or indemnity issues
(3) Public Factors or Forum-Related Interests
a. local concern w/ litigation v. alternative forum’s concern
b. burden on the jury/court
c. law that is to be applied from POV of courts & juries (confusing to them?)


Scottish citizens bring suit in CA for strict liability law. Transferred venue under §1404 to get PJ over one D. Then D
files motion for FNC. TC granted.
BOTTOM LINE: Court sets out that three factors are to be weighed when deciding on FNC. Also FNC
determination is committed to the discretion of TC and may be reversed only when there has been a clear abuse
of discretion. Defer when balancing is reasonable. FNC granted.
REASONING: (1) Law better in US, but Scotland does give some relief, they have 99% connection to Scotland;
(2) For D all witness in Scotland; (3) Systemic – PA doesn’t have strong interest and would have to apply
Scottish law.


• Choice of Law Problems  “Which sovereign’s law should apply to the dispute?
o Horizontal: Law of which state applies? (Conflict of laws rules)
o ** Vertical: Choosing between state or federal court? (Erie doctrine) **
• Rules of Decisions Act (28 USC § 1652)
o Laws of the several states SHALL be the rules of decision in civil actions in the courts of the United States,
in cases where they apply, unless the Constitution or federal law provides otherwise.
 If congress said nothing about it, state law would  BUT Swift made problems for years
• Rules Enabling Act (28 USC § 2072) (1934)
° Congressional grant of authority to the Supreme Court to prescribe rules of practice and procedure for cases
in federal courts.
° CANNOT abridge, enlarge, or modify substantive rights.
• HISTORICALLY [Swift Created Problems]
o Two Views of the Law:
a. Legal Idealism: There is some perfect body of knowledge that’s out there and we’re all equally well
equipped to divine it and discover it by the use of our reason; idea of what the law should be
b. Legal Positivism: The law isn’t out there to be figured out or divined, it’s a product of power
o In Swift v. Tyson  Judge Story adopted the idealism approach. Said § 1652 only
applied to statutory law. This enabled Federal Courts to make a federal common law. He thought this
would create uniform laws within the nation.
o Problems created by Swift
 SoP problem – Fed courts aren’t supposed to make law
 Federalism Problem – Fed courts were making law in state law areas
 Forum Shopping –diversity turns into inequitable principle allowing P to
choose favorable law  Black and White Taxicab
 Law not becoming more uniform, just had different law out there
**Applies only to DIVERSITY suit in Federal Court

1. Matters of SUBSTANTIVE LAW should be governed by Choice of Law rules in state in which DC sits.
(a) Erie v. Tompkins  In diversity cases, the laws of the state where the federal district court sits should
apply (both common and statutory law).
- (b) Klaxon v. Stentor Electric  federal district courts must apply the choice-of-law rules of the states in
which they sit
2. Procedural rules get a different analysis.
(a) Walker v. Armco Steel  FRCP should be read narrowly so as to avoid conflict between state and
federal laws. If conflict is avoidable, apply state law.
(b) Different Analysis for Different Types of Procedural Rules
(1) Federal Judge Made Rule (Common Law) York Outcome Determinative analysis. If yes, State
Rule. If not, Fed rule.
a. Does it promote Forum Shopping? [Hanna I  look at ex ante effect for all potential litigants.]
b. Is it an inequitable administration of justice?
** Byrd  Consider if this is “essential characteristic” of federal system. If so, can use Fed rule.
(2) FRCP 
a. As long as Rule is “arguably procedural”  apply Federal Rule. Hanna II
b. If it “abridges, enlarges, or modifies” substantive law, invalid under § 2072  apply
state rule
(3) Congressional Statutes  Apply Federal Rule as long as the statute is constitutional. Stewart v.
(4) Constitutional Requirements  Always apply the Federal Rule

Tyson swindled, Swift was BFPV of Tyson’s note. Swift sues Tyson to pay. State Common law wouldn’t make
Tyson pay. New Modern evolving view Fed CT had been applying would make Tyson pay (encourage trust).
• Judge Story  practical goal of giving more uniformity to law in Fed Courts, wanted progressive laws to
“oil wheels of progress.”
• Believed Legal Idealism would trump Legal Positivism.
BOTTOM LINE: Story holds that Rules & Decisions Act § 1652 ONLY applies to state statutory law, NOT to
state common law. Allows Federal Courts to promulgate federal common law for the next 100+ years.


P (B&Y, KY co.) reincorporated in TN to gain diversity jurisdiction to sue for an injunction for D (B&W) to stop
interfering w/ monopolistic contract w/ RR station. KY didn’t uphold monopolistic Ks, Fed CT did.
BOTTOM LINE: SC allowed B&Y to reincorporate. Did not deem this fraudulent.
DISSENT (HOLMES): Says should go against Swift. Legal Idealism not realistic. Swift not constitutional
horizontally or vertically.

Tort case. Fed rule broadens duty, protective of P, State law protective of RR.
BOTTOM LINE: Overrules Swift. The court must apply substantive state law in the state in which the district
court sits. Reasoning includes (1) Bankruptcy of Legal Idealist view; (2) Inconsistency w/ federalism & SoP;
(3) Practical problems of forum shopping Swift created
**Did NOT address Common Law in form of procedural rules
**Constitutional Reasoning  Federal Common law trenches on authority of states

**Procedural Applications of Erie

Fed CT sitting in equity typically had common law power to make SoL. State SoL had run, D moved for SJ saying
state SoL should control. P argued that SoL is procedural & governed by Fed law.
BOTTOM LINE: Goal of Erie is that where fed ct is exercising diversity jurisdiction, the outcome of the
litigation in the fed court should be substantially the same. Creates Outcome Determinative Test for federal
judge made rules. TEST: (1) Will it promote forum shopping? (2) Inequitable administration of justice for in-
state v. diversity suits?
** State SoL bc outcome determinative  doesn’t address timing [this case or ex ante effect in future]


Worker’s comp issue. State law lets judge decide if P was statutory employee. Fed law lets jury decide.
BOTTOM LINE: Says it’s not clear that this would be outcome determinative, but regardless, apply federal law
when applying the state law would undermine “essential function” of federal system.
**Wax says not helpful bc doesn’t give you much guidance or an objective standard

Service made upon D in MA by leaving process at residence w/ wife. Sanctioned by FRCP 4. BUT – MA law says
that service must be made personally. State SoL had run so couldn’t correct.
BOTTOM LINE: FRCP 4 applies. Gives two analyses:
Hanna I: Refines Outcome Determinative test. Must look at effect for other potential litigants NOT as it is in
THIS case. Decides service rules would NOT create forum shopping ex ante.
Hanna II: Creates different standard for analyzing FRCP rules. If it is “arguably procedural” then Federal Court
Rule applies. If “abridges, enlarges or modifies” then it violates § 2072 and state rule applies.


K contained clause specifying venue only in Manhattan. D brought a motion to change venue under 1404(a). P said
state law that disfavored forum selection clauses should apply.
BOTTOM LINE: Transfer law is allowed. When a federal statute is in conflict with state rule, the federal statute
governs if Congress had the authority under the Constitution to legislate that rule


FRCP 3 says when suit “commences” when filed for SoL purposes. State rule says Service starts it.
BOTTOM LINE: Should always read FRCP narrowly so as to avoid conflict with state laws. FRCP not intended
to toll state SoL. State law governs when tolling starts.


BOTTOM LINE: Adopt state choice of law rules in state where district court sits.
York, Hanna I Analysis: Court stepped back and said overall – if fed cts could have their own choice of law
rules – more often than not there will be disparity and then there will be forum shopping

Complaint; Dismissal on the Pleadings
• FRCP 1: Rules construed and administered to secure just, speedy and inexpensive determination of every
• FRCP 3: Civil action is commenced with filing of the complaint; marks the beginning of the time
requirements under the Rules.
• FRCP 7: Pleadings Allowed; Forms of Motions
(a) Pleadings restricted to complaint and answer; counterclaim and answer; cross-claim and answer;
third-party complaint and third-party answer; court may require a reply.
 Counterclaim = it’s an affirmative claim against P for relief. Could have been filed in
and of itself. Then P would have an opportunity to reply to the counterclaim
 Cross-claim = A asserts a claim against B. Then asserts claim against C. then B and C
assert claims against each other. [13g, always same t&o]
o (b) Application to the court for an order shall be made in the form of a motion, in writing unless
made during a hearing or trial:
 State with particularity the grounds therefore.
 Set forth the relief or order sought.
• FRCP 8: General Rules of Pleading
(a) Claims for Relief; Complaint shall contain “short & plain statement” of
1. Grounds for jurisdiction
2. Claim showing the pleader is entitled to relief (relief in the alternative is allowed).
° Diogurardi v. Durning NOT required to give facts sufficient legal theory
itself, just some grounds upon which relief could be granted
3. Demand for judgment of the relief the pleader seeks.
(d) if don’t deny you’re deemed to admit if response required; if no response required, deemed to deny
(e)(2) – Concise and Direct; Claims made in the alternative are allowed (can contradict).
• FRCP 9: Pleading Special Matters
• FRCP 10: Form of Pleadings
• FRCP 11: Can’t be frivolous claim. Can sanction lawyer and client

“Notice Pleading” The Standard for Modern Pleadings

• FRCP 8 only requires “a short and plain statement of the claim showing the pleader is entitled to relief.”
• Purpose  Provide Notice
o Notice for D to prepare and answer and conduct discovery
o System Notice: tells that you’re ready to prove your case, no waste of time, define issues
• Two ways to cure defects in the pleadings:
o Dismissal without prejudice with leave to amend pleadings.
o FRCP 12(e) motion for a more definite statement.
 Lodge 743 - Judge allowed discovery by P from D so that P can amend complaint
 Should NOT be granted if the complaint sets forth a CoA with sufficient definiteness to
enable D to frame an answer. Additional details shall be obtained by discovery.
 Judge can shape and alter discovery rules so that it meets the ultimate purpose of notice
Dismissal on the Pleadings
• FRCP 12(b) – Must raise every defense in the pleading except (7) Motions to dismiss on the pleadings (1)
no smj; 2) no pj; 3) no venue; 4) Insufficent process; 5) insufficient service; 6) failure to state a claim; 7)
failure to join under 19) – procedurally – the court should not even bother
o PJ, venue, form of process or service –WAIVABLE under 12(g) and 12(h)
• FRCP 12(b)(6) – Motion to dismiss for failure to state facts sufficient to constitute a cause of action /
Failure to state a claim for which relief can be granted.
o If matters outside the pleading are presented to the court, the motion is treated as one for Summary
Judgment under FRCP 56.

o Dismissal on the pleadings is rare - courts will usually bend over backwards to allow complaint to
move forward (Garcia & Dioguardi).
 Courts also will allow leave to amend a complaint.
 Most often granted for legal insufficiency, not factual insufficiency (facts can be added,
but legal theory cannot change).
o Unlike affirmative defenses, motion under 12(b)(6) is not waived if not asserted right away
• FRCP 12(c) - Judgment on the Pleadings:
o Similar to 12(b) motion but requires more “work” (ie – filing answer)
o After pleadings are closed, any party may move for judgment on pleadings.
o If matter outside the pleadings are considered by the court, the motion is treated as one for
Summary Judgment under FRCP 56.
• Rule Out Rule: Unless the complaint rules out any chance of Π willing, the court will usually allow a Π
to go forward.
o Example: Title VII complaint may be dismissed if the ∆ only employs 10 people and the statute
applies to businesses with 15 or more employees.
• Inconsistency Rule - Pleading suffices if it’s not inconsistent with some legal theory that would entitle P to
o Implies the hard and fast rule that is pleading says something that affirmatively says you can’t
win, complaint is dismissed.
o Ex: Cannot contradict element of your own claim
o Dismissal is not only option; grant leave to amend the complaint.
• The Elements Rule: P must say something about each element of claim.
o Applies particularly to highly stylized and established common law cases.
o If “buzzwords” are included in the complaint, assumes you have enough to prove that CoA (i.e.
libel cases must include a claim of publication - see Garcia).

Non English speaker wrote claim that was sparse. D files 12(b)(6). They allow him to amend, still sparse.
BOTTOM LINE: Short & plain statement just means he has to show some number of facts sufficient to
constitute a CoA.


CoA of Slander = dissemination + falsity. Claim said slander, didn’t allege “publication.” D moves for 12(b)(6)
since it doesn’t claim publication. D says it has irrefutable defense to paragraphs 5-8. In those parts, P admits to D’s
defense. That rules out the CoA in those paragraphs.
BOTTOM LINE: Publication is implied by mentioning the CoA in the complaint. Buzzword will be enough.
Court does dismiss paragraphs which show inconsistency – by their own admission they contradict part of

Answer, Reply and Amendments

• Two initial options in answer:
o File a motion under Rule 12(b) - subject to consolidation & waiver requirement of 12(g) & (h).
o File an answer (motions can be coupled with answer).
• FRCP 8 - General Rules of Pleading
8(b) - Defenses & Forms of Denial
 Must address legal theory of the complaint:
• A party shall state all defenses to each claim asserted.
• Rule of waiver for legal theories is lenient - hard to conceive of an adverse party
being surprised by a legal theory.
 Must address factual allegations of the complaint:
• A party shall also admit or deny the averments of adverse party.
• Specificity is favored in denials and stipulations. Shows that you are ready to
put on a case.

• Denying is Functional – allows you to put on evidence – go to jury
 In a party has no information to admit or deny, the party shall say so and this has the
effect of a denial.
 Denials shall “fairly meet the substance of the averments denied.”
 General denials of an entire complaint are disfavored.
 If you are supposed to plead to certain facts – if you DON’T deny – they are deemed
8(c) - Affirmative Defenses
 Establishes 19 affirmative defenses that must be pleaded right away or waived (not an all
inclusive list  catch all for court to decide more
• what exactly constitute this as opposed to something that is part of the CoA
(Ingraham & Taylor) Diversity, FED law supersedes who pleads what
• Ingraham Test
1. Is it a traditional element in the CoA?]
2. Which party has better access to information?
3. Should it be indulged or disfavored?
• For FQ jurisdiction  Look to statute, does it say to plead as part of CoA?
• Defenses are purely legal issues: D must affirmatively raise defenses that do not
flow logically from complaint or they are waived; provides P w/ notice
**NOT talking about burden of persuasion – ONLY burden of pleading [can be outcome
determinative, but probably wouldn’t lead to forum shopping]
**burden of persuasion in state law based on diversity = outcome determinative, governed by
state law
o 8(d) - Effect of Failure to Deny
 Averments are deemed admitted if not denied.
 Averments in a pleading to which no responsive pleading is required are deemed denied
or avoided.
 FRCP 15 allows amendments; leniency dulls sharpness of FRCP 8 (courts have discretion
to allowing full airing of issues for fair and just trial).
• Motions
o D may file a motion rather than answer.
 Can file for motion to dismiss on: 1) no smj; 2) no pj; 3) no venue; 4) bad process; 5)
insufficient service; 6) failure to state a claim; 7) failure to join party under 19
o Advantages of no need to admit or deny facts in the answer, save you the expense of preparing an
answer, save the court’s resources.
o “Speaking Motions” - motions to dismiss arising from issues outside the pleadings (pre-trial
hearing to determine factual/legal issues in dispute).

**Test for affirmative defenses

P sued US under FTCA. Fed statute looks thru to state law for medmal. State law of TX capped damages. Judgment
exceeded cap. D didn’t affirmatively plead cap. D said damages ere unlawful after case finished.
BOTTOM LINE: Ct says the cap on damages is AFFIRMATIVE DEFENSE – so it was waived under 8(c) when
NOT pleaded. Creates Test: 1) Traditional element of CoA? 2) Who has better info? 3) Should matter be
encouraged or disfavored?

Takes opposite approach from Ingraham

Same facts as Ingraham but in CA.
BOTTOM LINE: D did not have to plead this as affirmative defense. Rule 8(d) exempts amount of damages
averments from being admitted if not denied rule; D is presumed to want to contest damage claim

**FQ Jur  Affirmative Defense Issue

CoA based on § 1983. P didn’t plead that D acted in “bad faith.”
BOTTOM LINE: In statutory action with 8(c) question, look to the statute. If the statute does not require an
element as part of CoA for relief, then it must be part of the defense and D must plead it.

• FRCP 15: Amended and Supplemental Pleadings (Safety valve for rigid pleading requirements of FRCP 8
and 12)
o 15(a) - Amendment as of Right (Aquaslide)
 Can automatically amend pleading once any time before a responsive pleading is served
or within 20 days after served.
 Otherwise, must obtain leave of court or consent of adverse party – leave should be freely
granted (burden on court to justify NOT allowing amendment)
 Must respond to amended pleading within 10 days.
 Fohmen  to interpret “when justice so requires” must look at if other party will be
unduly prejudiced and if there’s evidence of “bad faith, prejudice, or undue delay”
o 15(b) - Amendments to Conform to the Evidence (Moore v. Moore)
 Amendment of the pleadings to conform to evidence presented at trial either during the
course of trial OR after verdict.
 Two part structure:
1. Mutual consent to the amendment:
a. Express consent of the parties
b. Implied/constructive consent: party does not object to the introduction of evidence
during trial.
2. If a party objects, court has discretion to allow amendment:
a. If the amendment aids in presentation on the merits.
b. If the amendment will not unduly prejudice the objecting side – objector must
show that the new evidence will really hurt them
o Usually surprise can be remedied by granting more time
o Judge WANTS to get to the right answer (even not w/standing fear of
review on appeal)
 Very forgiving standard; judge can waive the pleading waiver.
o 15(c) - Relation Back of Amendments (Worthington)
 An amendment of the pleading relates back to the date of the original pleading when:
(1) Relation back is permitted by the law that provides the statute of limitations
applicable to the action.
(2) Claim or defense asserted in the amended pleading arose out of the same conduct,
transaction or occurrence set forth in original.
(3) The amendment changes the name of the party against whom the claim is asserted if
(2) is satisfied and the amendment occurs within the period provided for service of
summons (4(m)). Test from Worthington:
a. Did the party that should’ve been sued have notice of the action?
b. Party knew or should have known that, but for a mistake governing the identity of
the proper party, the action would have been brought against him.
c. Was there prejudice?
d. But for this mistake, would they have been named?  must be MISTAKE
 This allows for statute of limitations concerns.
o 15(d) – Supplemental pleadings  Can supplement with T&Os that happened since start

** Important to look at what stage you are in – and determine what part of FRCP 15 you are dealing with

Custody suit. After trial, D moved to conform pleadings to evidence. CT granted, awarded custody, child support,
separate maintenance and counsel fees. P says wasn’t given proper notice
BOTTOM LINE: Court found that these issues were tried on implied consent as per 15(b). He never objected to
testimony that was unique to those claims and he had timely notice; the “new” issue is implied if the evidence
came in and both parties had a chance to hear it out.


P sued when injured on water slide. D sent out 3 insurance companies, they all said D made the slide. SoL expires. D
realizes it didn’t make the slide. Sought leave to amend to deny that they made it, had previously admitted. P says
since SoL ran, it’d be unduly prejudiced.
BOTTOM LINE: CT says P not really prejudiced, must be actually unfair not just a set back. Allow amendment.
Only puts the evidence of manufacture in dispute, can still contest this at trial.

Worthington went thru rough arrest. Sued city & “unnamed officers” bc he didn’t know their names. 5 mo. later,
after SoL had run, tried to amend complaint to name officers. D argued that since SoL had run, could only amend if
“related back” under 15(c). D says it didn’t.
BOTTOM LINE: Does not relate back under 15(c). Not knowing something is not the same as a mistake and
15(c)3 must be a mistake.
 Alternative – the state rule would have allowed BUT court said you have to apply the fed standard.
Easterbrook – when there is a FRCP – the fed law wins every time.
 Could argue that the scope of the fed rule doesn’t cover this case – it is more narrow than the state
rule. Are unknown parties outside the 15(c) umbrella so that we can use state law? Fed law says
nothing about it – state law is about unknown parties – so the 2 can coexist. Counter arg would
be any change of name – whether known or known – would be covered in 15(c) – but permission
is granted only for mistake (negative pregnant)

Motions to Conclude Trial/Reverse Judgment
Motion When Rationale Review
Motion to Prior to responsive Legally insufficient. No basis to bring a In light most favorable to
Dismiss filing (12(b) motion) or claim based on complaint itself NMP, based complaint
Rule 12(b)(6) in any pleading (12(h)
Judgment on the After pleadings Treated as summary judgment, if In light most favorable to
Pleadings Rule complete outside evidence allowed in, if not – as NMP, based complaint
12(c) 12(b)(6)
Summary D anytime, P after 20 Factually insufficient. No genuine In light most favorable to
Judgment days from start or in issue of material fact. NMP – MP shows areas of
Rule 56 response to D SJ pleadings & discovery where
(usually after discovery) no issue of fact, NMP must
rebut w/ affidavits
Judgment as After party has been No legally sufficient evidentiary basis
Matter of Law fully heard, before for a reasonable jury to find for that In light most favorable to
Directed verdict submission of case to party on that issue NMP, 3 standards: (i)
(before jury the jury (D can move favorable evidence; (ii)
verdict) Rule 50(a) after close of P case favorable evidence plus
before they are heard) uncontradicted, unimpeached
Renewed After judgment No legally sufficient evidentiary basis unfavorable evidence; (iii) all
Judgment as returned, requires prior for a reasonable jury to find for that evidence
Matter of law JMAL motion at close party on that issue
JNOV (after jury of evidence – just renew
verdict) Rule 50(b) JMAL
New Trial After judgment returned Jury verdict against great weight of DC can weigh evidence to
Rule 59 evidence find which witnesses are

Summary Judgment
• “Preview” of the full trial
o figure out whether the non-moving party can possibly win at trial AND if the moving party would
certainly win
o Efficiency measure to winnow out cases that don’t need full trial.
o Never decides question of fact - look at the facts in the light most favorable to the non-moving
• Two circumstances when SJ is appropriate:
1. When there is no genuine issue of material fact (materiality often depends of what law applies)
2. When party has failed to meet its burden of production (when they have it) OR the non moving party
can NOT and does NOT win as a matter of law.
• To succeed on a motion for summary judgment, court must find:
o Non-moving party has not met its burden of production on an issue (if the non-moving party has
it), and the moving party has.
o Non-moving party has not created a genuine issue of material fact.
o There is no material dispute on the facts, and the moving party is correct on the law.
• To survive a summary judgment motion, court must find:
o Moving party has not met burden of production, and the non-moving party has met its burden of
o Non-moving party has created a genuine issue of material fact, on the correct view of the law.
Dispute of material fact exists. In your opposition put forth facts/make claims that supplement
what you said in claim and go directly against what the other side says.
 Genuine: supported by competent evidence

 Material: relevant to the question of law
o Simplest way - There is no material dispute on facts, but the non-moving party is correct on the
law (who will usually file a cross motion for summary judgment), and the moving party is not
simply has it wrong
• 56(a) - P may move for SJ 20 days after commencement or when D files for SJ.
• 56(b) - D may move for SJ at any time.
o Can move with or without supporting affidavits (because D does not bear burden of production or
persuasion, he is not required to introduce any affidavits.
 affidavit = allegations/statement of facts, written down and sworn and it is assumed that
the person who is signing has the capability to swear to these facts and could testify on it.
“competent evidence”
• 56 (c) - Judge considers evidence and grants motion if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
o material fact is one such that if that fact changes, the outcome of the case changes
• 56(d) - Partial SJ is possible.
• 56(e) - Adverse party (opposition) to an sj motion cannot rest on his pleading, but must set forth specific
facts showing genuine issue for trial.
o Cannot just deny - must put in something credible for trial
o Does NOT mean that in Celotex type situation that if your strategy is to point to defects in the
other sides case that you have to bring in affidavits etc. this is ONLY for when you want to create
issues of material fact.
• 56(f) - Judge can delay ruling to allow for discovery


P rode on D’s RR on a free pass with liability waiver. Court says that D still responsible for injuries resulting from
willful and wanton conduct. D moves for SJ bc she doesn’t allege willful & wanton conduct.
BOTTOM LINE: CT grants SJ. Even if her facts are accepted as completely true, there’s no allegation that
would meet willful and wanton standard.


P filed wrongful death action against 5 companies, including D. After discovery, D moves for SJ bc P didn’t meet
burden of production that its product was cause of injury. P Claims that to succeed on SJ, D has to give evidence
that shows there’s no genuine issue of material fact.
BOTTOM LINE: Rule 56 does NOT require the moving party to present evidence of their own to support SJ if they
do not carry the burden of production. Merely showing that the guy w/ the burden didn’t meet it is enough. [If
moving party has the burden, they MUST put in evidence]
Case of failure to meet burden of production – defect in ∏ case


Libel has heightened standard of evidence clear and convincing evidence. Burden of persuasion always
comparative to evidentiary standard. Burden of production is harder to measure against heightened standard. D says
P didn’t meet burden of production for heightened standard, requests SJ.
BOTTOM LINE: CT allows SJ. Says heightened evidentiary standard of proof gets taken into SJ.
**Wax  Inconsistent bc SJ is one sided review, standards of proof are COMPARISONS

Voluntary Dismissal and Default

FRCP 41: Dismissal of Actions
• 41(a)(1) - Voluntary Dismissal
o P may voluntarily dismiss his action before adverse party files an answer or makes a motion.
o P may voluntarily dismiss his action by agreement of the parties.
o Dismissal is without prejudice, except if dismissed more than once.

• 41(a)(2) - Voluntary Dismissal with Court’s Permission
o Dismissal by order of court at plaintiff’s request without prejudice unless court directs otherwise.
o Wide discretion given to judges.
o McCants v. Ford Motor Co (11th Cir., 1986)  judge granted motion to dismiss so she wouldn’t
lose bc brought it after SoL passed.
• 41(b) - Failure to Prosecute [Involuntary Dismissal]
o delay, how much delay, attorney carelessness etc – basically – courts have a lot of discretion and
decisions reviewed only for abuse of discretion
o If P fails to prosecute its claim, D may move for involuntary dismissal.
o Unless court provides otherwise, dismissal is an adjudication on merits.
o Messenger v. United States (2nd Cir., 1956), in which court held standard for determining dismissal
is lack of due diligence on the P’s part, not considerations of D.
o Link v. Wabash R. Co. (Sup Ct, 1962)  sua sponte dismissal for failure of P to prosecute is valid
without giving notice even when it’s attny’s fault

Directed Verdict/JNOV/Motion for a New Trial (Judgment as a Matter of Law) (JAML)

Three ways for judge to take case from jury (common law basis):
• Directed verdict (now JAML).
• Judgment notwithstanding the verdict (JNOV) (now JAML).
• Can move after close of case. MUST be before jury goes out. If denied, can renew again after
verdict rendered within 10 days or WAIVE.
• If you lose or win on JAML, have 10 days to file for motion for new trial.
• Motion for New Trial
• Standards of Evidence for taking away from Jury
• “Scintilla Standard”  can be sparse as long as there is something for jury to find on
• Four Types:
1. Sparse is Evenly Matched: All evidence is sparse, even between parties, jury has even basis of
decision between two. Denman.
2. Sparse to Nothing: Sparse on one side versus nothing on other side
3. Evidence is Lopsided: MOUND on one side, but jury decides for nothing side. Chamberlain
technically you should grant new trial
4. Dense v. Dense: is jury reasonable for setting one aside?
FRCP 50 - Judgment as a Matter of Law
• Party may move for JAML (directed verdict) at the close of his case. (D can move after P case before they
even go or at the close of all the evidence – both can make JAML)
o Substantive standard: 50(a)(1)- Must be no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.
FRCP 59 - New Trials
• A party may move for a new trial on all or part of the issues for “any of the reasons for which new trials
have been granted in actions at law in the courts of the United States” (common law history incorporated
into Rule).
o Grounds for ordering a new trial:
 Prejudicial procedural error.
 Jury misconduct.
 Verdict against the great weight of the evidence.
 Excessive verdict.
o Motion must be made within 10 days after entry of judgment.
o Court may also order a new trial on its own initiative.
 NOTE: granting new trial is radically different from SJ/JAML
• Must preserve the issue by making objection (part of the adversary process) at the appropriate time (to give
judge a chance to fix it).

• Plain Error Doctrine: if error is exceptional in character than the ct will sometimes correct in the absence of
the objection or exception (Troupe v. Chicago – note 3, pg. 40)
o Doctrine of forgiveness if:
 If the error is so obvious that the judge should have know about it and corrected it OR
 if the error affects the fairness, integrity or public reputation of the judicial system
FRCP 61 - Harmless Error Rule  No error that is not prejudicial is grounds for a new trial.; To be prejudicial,
the error must have a possible effect on the outcome.

**Federal Scintilla Standard  Later Decision

Man found dead. Not sure if part of train killed him or he was murdered. Jury finds for man.
BOTTOM LINE: Scintilla Standard -- Only when there is a complete absence of probative facts to support the
conclusion reached does a reversible error appear. Where there is any evidentiary basis for the jury’s verdict,
the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.

**State Std. – reject sctintilla

2 car collision w/ no witnesses. P had one witness that said there D was speeding and photos. D gave no evidence.
Jury found for P. D moved for JNOV.
BOTTOM LINE: SC of MS (STATE CASE) says that when evidence is evenly matched, person on whom the
burden of production rests will lose. Not enough for jury to decide on without pure speculation.


Maybe there was a collision between 2 RR cars and 9 RR cars that caused P’s death. Bainbridge, P witness, said
from bad angle far away he saw and heard crash. 3 Witnesses on 9 RR car itself said no crash.
BOTTOM LINE: Court grants JNOV because there’s no real dispute in facts. Bainbridge didn’t see anything,
they didn’t meet burden of production.
**Wax says this is outer limits of JNOV – CT probably should’ve given new trial.

H was consultant that testified for K’s trial. H sued K bc he wasn’t ever paid. At trial, K pleaded fraud bc said H
misrepresented his credentials. Affirmative defense, said he didn’t have to pay. K didn’t show up for trial, H
testified. H got JAML. K said this was not appropriate to grant bc genuine issue about fraud & Jury decision about if
H was lying.
BOTTOM LINE: CT says K didn’t meet burden of production bc he did not show reliance, a necessary element
of fraud. You cannot just state defense w/o meeting your burden of production.


Instructions & Verdict
Seventh Amendment
• Jury is given the role of fact-finder, weighing of the evidence. Judge determines the law
• Judge cannot change or redo the finding of facts, except as provided by the rules at common law.
• De Novo Review happens when appeals court does not defer to lower court’s judgment of the law

FRCP 51 – Instructions to the Jury

• designed to maximize the chance that the correct instruction will in fact be given and so as a result the
correct outcome will come about
• Parties may submit proposed jury instructions.
• A party must object to the jury instructions before the jury retires to preserve the issue for appeal.
o stating distinctly the matter objected to, and the grounds of the objection.
o By failing to object  waived!

P sues D for negligence. Two tractor trailers collide, no witnesses in the night. 50/50. Judge put burden of
persuasion of contributory negligence on the D to show that P did not use due care, was supposed to be on the P. D
stated that he had an exception but he did not make objection clear as FRCP 51 requires.
BOTTOM LINE: Objection must comply w/ 51. Must give substance and must be right before instruction given.

Jury Deliberations
Jury misconduct is a possible ground for a new trial under FRCP 59.
• Dealt with under the Federal Rules of Evidence (Rule 606(b)).
o forbids testimony on jurors mind or emotion – but permits testimony about any outside factor that
may have influenced a juror (similar to Iowa rule)
o Tanner v. US. Sup. Ct. held that the jury could not be impeached for drinking alcohol at lunch.
Worried about implications down the line (Rx meds etc)
• Originally a strict rule (Lord Mansfield’s Rule) that jurors were not allowed to testify at all as to what
happens in the jury room. (sealed jury room)
• While still the majority – many have gotten rid of Mansfield Rule
o Iowa Rule - Jurors testify on outside influences, not process of deliberation.
o Texas Rule - Allows jurors to testify on any matter (influence & deliberation).


Worker’s comp case. D wanted new trial bc jury found for P. Juror said that even though he wasn’t disabled for life,
in his experience they would nto hire him anymore.
BOTTOM LINE: Didn’t meet verdict against great weight of evidence. Jury was within their right to believe and
weigh the evidence how they saw fit. Can’t bring up jury misconduct for the first time in appellate CT.

Court of Appeals
Law Fact
De novo NO review – 7th Amd
Judge and jury (prudential rule to get correct legal (mandatory - constitutionalized).
De novo Only when Clearly erroneous -- 52a
Judge only (prudential) (discretionary)

Seventh Amendment
• Reserves fact-finding responsibility to juries.
• Application to trial court: judge cannot change or re-do juries findings.
o Exception in FRCP 59 (New Trial, not really review, but chance for a new jury).
o Exception in FRCP 50 (not really weighing, look at in most favorable light)
• Application to appeals: cannot disturb juries’ findings of fact.
o FRCP 52 - Appeals courts can’t review a fact finding by bench ruling unless the finding is
“clearly erroneous.” [gives finding protection that 7th amendment gives to jury finding ]
Standards of Review
• For findings of fact and application of law to the facts:
o de novo Review - Fresh look at facts and law.
o Various degrees of deference to trial court’s finding:
 Clearly erroneous standard. (FRCP 52(a))
 Error.
 “Against the great weight of the evidence” (FRCP 59).
 “No reasonable jury” (FRCP 50).
• For matters of law: no deference to the trial court (“accumulation of wisdom”).

H sues US under FTCA [piggybacks on state law]. Std of Care must be ordinary care. D witness says avg judgment
used. Bench trial, judge finds for D.
• FRCP 52(a) only set aside facts when clearly erroneous
BOTTOM LINE: Appeals court overturns, but does NOT base it on 52(a). Instead, de novo reviews the law.
Says this is mistake of application of law to fact, but determination of fact is untouched. HARD to justify
overturning on clearly erroneous std.

Interlocutory Appeals
• In federal courts, interlocutory appeals (an appeal before a final judgment is rendered) are disfavored:
o Pros: efficiency, discourages strategic behavior of delay, lets all issues get heard at once
o Cons: could be inefficient; an entire case could be tried and thrown out for a mistake at the
beginning of a case.
• 28 USC § 1291 - Final decisions of district courts may be appealed.
• 28 USC § 1292 - Exceptions for interlocutory appeals from district courts.
Supreme Court Practice – Appellate Juris.
• Almost entirely discretionary – certiorari
• Will take interlocutory (ct of appeals will never do this)
• When do they grant cert?
o statutes – 28 USC §§ 1254 (from CT of AP), § 1267 (from State SC)
o SC In House Rule 10
 Circuit Split
 State SC & Circuit Split
 When a court has departed from the usual practice
 State SC deciding a federal question that conflicts
 Important questions of federal law that should be settled

• Discovery: Method by which the parties obtain information for use in litigation or in anticipation of
• Goals of Discovery – (Ideals):
o Keep litigation from turning into a game won by the party with more resources or superior access
to information (leveling device).
o Eliminate the element of surprise during the trial.
o Facilitate a search for the truth by ensuring both sides are fully prepared to advocate for their
o Dispenses with irrelevant/unimportant issues.
• Debate over new discovery rules:
o Pro (Winter):
 Lead to less discovery overall & litigation over discovery
 Encourages more specificity in pleadings (parties will be more specific in pleadings to
obtain more mandatory disclosures from opponent).
 Encourages a “spirit of cooperation”
o Con (Scalia):
 Not compatible with the adversary system.
 Job of attorneys is to protect the rights of their clients, but spontaneous disclosure
requires attorneys to use their judgment to determine how much to disclose,
subordinating client’s rights to those of the system.
• Puts duty to the system in real tension w/ the system (Wax somewhat agrees)
But today there is more acceptance – people have gotten used to it
Scope of Discovery Rules
• Broad standard for discoverable material: any matter not privileged relevant to the pending subject matter.
FRCP 26(b)(1). (anything pertinent to claims & defenses)
o Need not be competent/admissible evidence to be discoverable.
o Can lead to discovery of further admissible evidence.
• Problems with broad rules:
o Can increase the cost of litigation.
o Incentive for law firms to engage in extended discovery (billable hours).
o Parties with more resources are favored.
o Does not alleviate strategic behavior of parties.
• Rules for discovering material from third parties are less liberal and less mandatory (see discussion of Rule
FRCP 26 - Required Disclosure; Methods to Discover Additional Material
• Designed to work on its own w/out judicial intervention –but doesn’t really work out that way. So many
grounds for parties to go to judge and ask for protection/limits/forcing discovery.
• 26(a) Mandatory Spontaneous disclosure
o Identifying information for people likely to have discoverable information.
o Copies/descriptions of documents, data, and other tangible things.
o Computations of damages claims.
o Insurance agreements.
o Identity, reports, opinions of experts expected to testify at trial (a)(2).
o Identity of witnesses. (a)(3)(A)
o Identity of evidence/exhibits to be presented at trial. (a)(3)(C)
o Under Rule 26(a), courts can opt out of the required spontaneous disclosure regime (about half
have done so).
• 26(b) Discovery Scope Limits
o 26(b)(1) – any relevant matter (not privileged); doesn’t have to admissible

o ** 26(b)(2) - Discretionary grounds for court to limit discovery when  Unreasonably cumulative
or duplicative, or obtainable from some other source that is more convenient, less burdensome and
expensive. Court can act sua sponte to determine reasonableness.
o 26(b)(4) Experts that won’t testify  ONLY if exceptional circumstances makes it impracticable
to get facts or opinions otherwise & must pay them
o 26(b)(5) Claiming Privilege  must give claim, description so judge can determine
• 26(c) - Protective orders:
o Court has authority to limit discovery that would annoy, embarrass, harass, oppress, or impose and
undue burden on a party. [parties must try to resolve on their own first]
o BALANCE INTERESTS! From Marrese, Poser’s alternatives to discovery:
1. Redaction – cross out info that’s too revealing
2. In camera – ltd review of plaintiff’s files, judge looks at it first and decides what seen
3. Order just non-protected materials first, maybe won’t need the rest
• 26(d) - Timing and Sequence of Discovery
o A party may not begin discovery process until after 26(f) conference
o Unless otherwise directed by court, methods may be used in any sequence
• 26(e) - Supplementation of Disclosures and Responses
o Parties remain under a duty to supplement or correct material in writing
o Unless the change has been otherwise made known to the opponent
• 26(f) - Discovery scheduling conference
o Parties are required to meet to discuss claims and defenses.
o Parties also must make plans for mandatory disclosures above (these disclosures are due 10 days
o Parties also must develop a proposed discovery plan.

**Protective Order
P suing organization for anti-trust violation by not admitting them. Seek files about how they admit members. D
wants this protected bc violates the process by which it chooses members. TC ordered discovery, D wouldn’t’
comply, contempt of court.
BOTTOM LINE: For protective orders, must balance interest of the parties. Don’t want to chill free flow of
information. TC did not sufficiently protect interests. Gives alternative suggestions of 1) redaction; 2) in
camera; 3) sequential order so that non privileged seen first


Newspaper wants list of people that contribute to organization which sues them for libel. P said D would harass their
contributors if they got the info. TC allowed limited discovery, both appealed.
o BOTTOM LINE: The use of the materials can be limited by the court. There is sufficient interest in
protecting 1st amendment rights to warrant.

Discovery Mechanisms
FRCP 30 - Oral Depositions
• Any person, party or witness may be deposed.
o Parties are under a duty to be deposed and only require notice.
o BUT - Non-parties must be subpoenaed under Rule 45.
 you may separately ask a non party to bring docs and depose them – IMPORTANT – bc
normally you have to go to where they were to depose them – but now – you have fed ex
– they can just send you stuff
• Only 10 depositions may be taken under this Rule  request permission to take more
• Recording of deposition  Not necessary to record every deposition, but to introduce deposition testimony
at trial, must be transcribed by someone certified
• Corporations may be deposed  must send someone w/ knowledge of issue
o No duty of investigation is required (as opposed to interrogatories).

o Interrogatory may be a more appropriate first step for corporations.
• Objections during depositions:
o Parties can reserve objections during deposition, but party must answer.
o Exceptions to answering:
 Deposition is oppressing or harassing the deponent.
 Privileged matters.
 (Preserve evidentiary objections for trial)
Rule 31 - Written Depositions  More appropriate for long distances; Attorneys usually not present; Answers to
written questions are taken orally.
Rule 33 - Interrogatories
• Limited to 25 per side (can be varied).
• Only directed to parties. – CANNOT be directed at non-parties
• Includes a duty of reasonable investigation to answer.  must be answered fully
Rule 34 - Document Production
• Applies to anything tangible and to property.
• Need a subpoena for third parties, but NOT for parties.
Rule 35 - Physical and Mental Exams
• These discovery requests are rarely granted as they are very intrusive.
• Requires the intervention of the court
• Examination of non-parties is especially difficult to get.
• ** only device that requires showing of cause – needs judicial intervention **
Rule 36 - Requests for Admission  helps get what issues are on and off the table
• FRCP 26(b)(5) – exceptions to the obligations to disclose  Person asserting a privilege has the burden to
prove why he is entitled to it.
• Types of “formal – common law” Privileges (refers to Fed Rule of Evidence 501):
o Attorney-Client Privilege – matters disclosed to just attorneys and no one else in the process of
getting advice (as client) on taking a course of action or preparing a case
 Must be an attorney acting in capacity of legal advisor
 If a third party is present, privilege is waived.
 Note – if Atty-Client Priv doesn’t apply – WP rule may
o Spousal Privilege
 Private communications between spouses.
 Cannot “close the mouth” of a spouse (Trammel v. Trammel)
o Priest-Penitent; Doctor-Patient Privilege (recently extended to therapists); Fifth Amendment
Privilege against self-incrimination.
• Privileges are based on the benefit of free and open communication.
o BUT are narrowly construed and courts are reluctant to extend privileges further
o Must be balanced against the principle of full disclosure and the search for truth
26(b)(3) & (4) Work Product Rule – not a formal privilege but court is vigilant in making sure that you can’t get
the other side to do your work for you. Want to avoid Exploitation & Chill of preparation efforts.
3 general categories:
1. docs prepared in anticipation of litigation that contain info that can reasonably be obtained thru other means
(discovery barred)
2. if party demonstrates substantial need for that material & cannot be obtained otherwise w/out undue burden
(court MAY order production)
3. Atty’s thought process in preparing, “opinion WP” (legal theories/strategy) (discovery barred)
• TWO types of privilege, treated differently
o Qualified privilege: can get if in dire necessity
 FRCP 26(b)(3)  A party may obtain discovery of documents and tangible things**
otherwise discoverable and prepared in anticipation of litigation or for trial by or for
another party or by or for that party’s representative only upon a showing that the party

seeking discovery has **substantial need** of the materials and is unable without
**undue hardship** to obtain the substantial equivalent by other means.
• You having to go out and do your own work is not going to cut it BUT
sometime courts slip when there is a david v. goliath situation
• Extends to experts also
o Absolute Privilege: may never have access to
 In ordering discovery of such materials, the court SHALL protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative concerning the litigation
• Not completely clear what is prepared “in anticipation of litigation”
o Fifth Circuit interpretation: Strict! Only material prepared exclusively or primarily for litigation.
o Second Circuit interpretation: “Because of” test - If the possibility of litigation is one of the
reasons for preparing a document, it is protected by the work product rule.
 Does NOT have to be a suit specifically pending BUT if document is prepared in part to
engineer conduct in compliance with the law – this arguably could be in anticipation of
 However, documents prepared in the ordinary course of business are NOT protected
(must be because of actual or impending litigation).

Tugboat sank. Survivors statements taken during investigation. In anticipation of suit, owners attny privately
interviewed them and others, and made transcripts of the testimony & notes on testimony. Plaintiffs (wrongful death
& survivors) filed suit. Wanted copies of everything. D argued AWP and thus privilege.
BOTTOM LINE: NO attorney client privilege because this was not communication between attny and client,
but between attny and 3rd party. Establishes the Work Product Rule  mental impressions of attorney and
conclusions are ABSOLUTELY privileged. Underlying Information and documents are QUALIFIED
privilege  have to meet strict burden of necessity showing you can’t obtain the alternative.
NOTE: Rule applies for the WP Experts as well.

In anticipation of IRS summons, attny interviewed employees at company. Disclosed info to IRS but didn’t give
interview info. IRS seeks files, says A/C privilege doesn’t extend to regular employees.
BOTTOM LINE: Privilege extends to everyone in organization at all levels. Meant to encourage free and open
communication so must extend.

Testifying Experts - FRCP 26(a)(2)
• Report prepared and signed by the expert is required under spontaneous disclosure provisions.
• FRCP 26(b)(4)(A) - Parties may depose testifying experts.
Non-Testifying Experts
• Retained by opponent in anticipation of litigation:
o FRCP 26(b)(4)(B) - Facts or opinions held by a non-testifying expert retained in anticipation of
litigation may be discovered (through depositions or interrogatories directed at the party) only
upon showing of exceptional circumstances or need. [you have to pay them 26(b)(4)(C)]
 *** You paid for the expert  don’t want exploitation ***
 Question of whether a party may discover an expert’s report under this provision
(courts disagree) - but can depose him if need shown.
• Not all experts are retained experts for purpose of anticipation of litigation
o Consulted Expert: experts retained by not in anticipation of litigation  treated as reg witness
o Initially not retained: Not retained or consulted but involved in facts, observed events, prepared
documents, but at the time weren’t working for either side  treated as reg witness
o Not retained or consulted:
 General expert: Treated as ordinary third party under FRCP 45(c)(3)(B) – as witness
w/ info relevant to lawsuit (but if they don’t have specific info – better to pay them

then to subpoena bc 45 makes it hard to subpoena those who don’t have specific info
– don’t want to force someone to work for you at lower rate bc of subpoena)
 Expert observer: Like an ordinary third party witness (but see Perry).
 In house expert (i.e. accountants, etc): subject to the work product rule under Rule


P injured at work by product made by D. D wanted names of experts who examined the truck and pump after the
accident. Experts were NOT really retained in true anticipation of litigation, but became retained later. DC
BOTTOM LINE: CT says Protected under 26(b)(4)(B) must show dire necessity for non-testifying experts
**Wax thinks you shouldn’t be able to retroactively change 3rd party witness into retained expert
FRCP 45 – Subpoena
• Special protections for third parties (no interest in the case) on where they can be called to testify and be
forced to produce documents/allow inspection. Limits how you can bring unwilling witnesses into civil
action; limits on how you can depose non involved parties – how far you can make them travel – what you
can make them turn over.
• Three step analysis for subpoenas:
o Was the subpoena validly issued (Rule 45(a))?
o Was the subpoena validly served (Rule 45(b))?
o Can the subpoena be quashed or modified (Rule 45(c))?
• 45(a) - Blanket grant of authority to subpoena third parties: (seek a discovery order – for documents, for
o 45(a)(2) – Where issued -- Subpoena for appearance at trial or deposition.
 For trial - issued from court where trial will be held.
 For deposition - issued from ANY ct in district where deposition will be held.
 “They don’t come to you – you go to them”
 Can’t make them go more than 100 miles from where live/work
o 45(a)(3) - Attorneys can issue subpoenas as long as he is licensed to practice in that district
• 45(b) - Service Rules:
o (1) - How served: similar to the rules for service of summons – deliver to the person older than 18
o (2) - Where served:
 Any place within the judicial district where it was issued.
 Any place allowed by statute of state where served
 Within 100 miles from place of deposition
 [for trial can be made to travel more than 100 miles if in the state]
 Document  where document shows up OR where sent from
• 45(c) - Protection of persons subpoenaed: reasonable steps to prevent undue burden (ex: costs for extensive
copying etc)
o 45(c)(3)(A) – MUST Quash or Modify when:
**Doesn’t have to quash or grant only, can also modify:
 Fails to allow a reasonable time for compliance.
 Travel more than 100 miles (from home or business place).
 Undue burden
 Makes them bring privileged matter  either privileged to party OR affiliated
party… becomes 26(c) protective order if you are filing for it
o 45(c)(3)(B) – MAY Quash or Modify if:
 Requires disclosure of trade secret or other confidential material.
 Requires disclosure of unretained expert’s opinion or info not describing specific
events or occurrences in dispute and resulting from experts study not made at request
of parties [General Expert, think Stanford Prof example]  can order parties to PAY
the expert

 Requires non party to incur substantial expense to travel more than 100 mi for trial
 can order parties to pay for travel
o Under (B), if the party in whose behalf the subpoena issues shows a substantial need for this
information and assures that the person subpoenaed will be reasonably compensated, the court
may order appearance or production.
Document Production under FRCP 45:
• 45(a)(1)(C) - Subpoena duces tecum.
• 45(c)(2)(B) - mechanism for challenging subpoena for document production or to permit inspection.
• 45(c)(2)(A) - person need not appear with documents or at place of inspection (allows more flexibility -
100 mile travel provisions
Stare Decisis
• Prior authoritative decisions on issues of law have precedential force
• Notion that like cases should be decided alike.
• Issues of LAW, not fact.
• Prudential doctrine: not the same status as firm doctrines like res judicata.
• Force of precedent is strong, but not binding.
• When courts have to follow what/whose precedents:
o State courts are NOT bound by federal court state law decisions.
o ** When deciding state law cases, federal courts look to state supreme courts.
o Federal district courts can follow state supreme courts, rather than Circuit Court of Appeals
• Distinction between stare decisis and issue preclusion:
o Rule of Thumb: the more abstract and general the rule involved (dissociated from the facts of the
case) the more it is like a stare decisis question rather than issue preclusion.
o Issue preclusion is more mandatory in character, while stare decisis gives courts the freedom to
overrule, distinguish, etc.
Claim Preclusion

♠ RES JUDICATA 4 Prerequisites:

1. Final judgment in first action
2. First judgment must be on the merits (full and fair opportunity to litigate?).
3. Parties the same in first and second actions (or in privity (same parties for purpose of RJ doctrine)– but
don’t worry about technicalities)
4. Applies to any claim that was brought or could have been brought arising out of the same transaction and
occurrence. (doctrine of merger)
a. Need to harmonize w/ issues of supplemental Juris
b. “same” claim varies by state BUT in the federal system SAME CLAIM = SAME T&O (§1367
• Precludes collateral attack on prior final judgments on the merits.
o Judgments become final when the time to appeal expires, court of appeals issues a decision, or
when a court of appeals rejects an appeal.
o But generally don’t like another case to start while the appeal time is still running – usually make
you wait
o Other dispositions rendering finality on the merits
 Full trial.
 Summary judgment.
 Judgment as a matter of law (directed verdict or JNOV).
 Default judgment – for P if they fail to litigate OR D cannot assert RJ if they have
defaulted in action 1
• except for default in lack of PJ where you can collaterally attack – but for RJ it
is final as long as it stands

 Rule 41 dismissals – if with prejudice – then final
o Pure Procedural dismissals (smj, pj, etc) under FRCP 12 are NOT final judgments on the merits
(but they are final decisions as to the subject of the motion).
o Dismissal for failure to state a claim 12(b)(6) while usually not outright dismissals after you’ve
gotten your chance to amend/2nd bite it becomes final (Federated Dept)
**EXCEPTION: collateral attack on final judgments allowed for obvious lack of smj [unlike Des
Moines rules]
• Justifications for Res Judicata:
o Judicial efficiency - saves resources of courts from trying the same case repeatedly.
o Fairness to D (repose) - once you have dragged a party into court, all matters should be resolved
for all time (prevents harassment).
o Not unfair for person suing - he has had his “day in court” and should only get “one bite at the
• ** RJ is an affirmative defense that is WAIVED if not brought up!– FRCP 8(c)
• Authority for res judicata:
o State courts must respect the decisions of other state courts under the Full Faith and Credit Clause
of Article IV of the Constitution.
o State courts must respect the decisions of federal courts under the Supremacy Clause of Article VI
of the Constitution.
o Federal courts must respect the decisions of state courts under the full faith and credit provision of
28 USC § 1738.
o Federal courts respect the decisions of other federal courts under a true common law doctrine.

P sued D for battery, awarded 11lbs. Injury worsened, part of skull fell off. Sued again. CT said RJ barred.
BOTTOM LINE: Doctrine of bar & merger  2nd CoA merged into last.
**rules today allow fresh CoA when haven’t sued on complete injury (FRCP 13,14)


Action 1: P (IA), Ds (IA) & (NY) in IA ct removed to Fed Ct. D wins, no taxes owed. P appeals all the way to SC
and loses. NO SMJ but never questioned or objected. Action 2: P sues one of Ds for same unpaid taxes. D argues
RJ. P argues 1st action invalid for lack of smj.
BOTTOM LINE: The 1st action stands despite lack of SMJ. Defect of SMJ should be noted at the trial level. P
had a full and fair bite at the apple. [Diversity in 1st action was unclear & undecided]


Action 1: Class Action Suit against 6 Title Company. [settlement=final judgment]. Settlement should have been
certified as monetary relief, was mis-certified as non-monetary, so no opt-out clause. Class members had no choice
but to go with settlement.
Action 2: Two Ps from class sue same Ds again, argue had DP right to opt-out. Collaterally attack settlement.
BOTTOM LINE: 9TH Circuit let P opt-out. SC granted cert, but dismisses as improvidently granted bc would
have to take up constitutional questions when this case was premised on mistaken mis-certification. Let’s 9th
Circuit Ruling stand  trial not barred by RJ, goes forward.


Lady gets in motorcycle accident. Sues in two actions. Action 1: injury to property. Action 2: injury to person.
Recovers on Action 1. Gets issue preclusion on Action 2. D appeals, says should’ve been in one action.
BOTTOM LINE: You cannot split the action even if one wrongful act produced several injuries, if they arise
from the same T&O they are encompassed in doctrine of RJ.

Acceleration Clause on contract. He is late on 2 mo, they sue for 2 mo, he’s late again, they try to sue for whole
amount as per acceleration clause.
BOTTOM LINE: Scope of RJ can be determined by the contract (single indivisible K) Should’ve brought suit all
at once. Since they didn’t title passed to him when they sued the first time bc it barred them from suing again.


7 sue Federated for violating anti-trust. Clayton Act didn’t allow consumers to sue retailer. 12(b)6 dismissal. 5
parties appealed. M&B(plaintiffs) did not appeal in allotted time, re-filed in state court. D says RJ bars. Removed to
fed court, was dismissed. Appealed to 9th circuit. During time, Clayton act interp changed so they could sue. 5 others
were allowed to sue on appeal of original action.
• 9th Circuit says since 5 others got it, simple justice means these 2 should get it
BOTTOM LINE: SC says value of finality is a firm doctrine NOT to be suspended for “fairness” or “public
policy.” RJ applies when final judgments were right OR wrong. (also they were behaving strategically)

Issue Preclusion

♠ Collateral Estoppel 4 Prerequisites:

1. Same issue in both actions. (issue of fact or application of law to fact)
2. Issue must have been actually litigated in first action.
o Issue must have been “in dispute.”
o Not stipulated or conceded bc if it is conceded, does NOT mean has NO merit – could just be
procedurally to hard to prove (ex: cant subpoena witness)
3. Issue must have been necessarily decided in first action.
o Was this a logical precedent for a judge’s decision?
o Did this issue have to be decided for the ruling to come out as it did
o Problem with general jury verdicts (alternative grounds for deciding).
o With special jury verdicts, you know what jury decided.
4. Decision on Issue must have been necessary to the judgment in first action.
o Problem with judicial opinions listing several grounds.
o Two or more alternative sufficient grounds get NO preclusive effect for either ground bc even if
one ground is defective, it will NOT be appealed because the other ground is sufficient so it
wouldn’t matter: caution about perpetuating possibly defective and uncorrected grounds. (Vasu)
o ex: cant sue for trespass bc he had easement and/or bc you don’t own the property – take one away
– still same result
♠ Offensive Use: Sword against veteran of prior action.
♠ Defensive Use: as a shield against a veteran of a prior action.
Mutual Collateral Estoppel  Applies when Parties are the SAME.
• Distinguished from res judicata:
o In RJ, same nucleus of facts/set of events.
o In collateral estoppel, may have only a few facts in common, but will have a different set of facts
and possibly a new theory of law (clearest example is events separated in time).
o Collateral estoppel applies to only part of the case.
 May or may not decide the whole case


Action 1: Tried to collect on first few coupons in a series. CT said they were issued fraudulently and he couldn’t
show that he gave value for them. Action 2: Sues on same series, but later few coupons.
BOTTOM LINE: Ultimate decision in last case does NOT estop P from filing this suit. THESE are different
coupons, he could show that he gave value for these. Collateral Estoppel will work on issue of whether bonds
issued illegally. Under stare decisis, will still determine if he was bonafide purchaser, but he has a chance to
show that he was.

**Necessarily Decided Requirement
Action 1: Suit for patent infringement. D defended by saying 1) patent invalid; and 2) patent not original. P won.
The court necessarily decided that patent WAS valid and WAS original.
Action 2: Suit for another infringement on same patent. P tries to offensively collaterally estop D from asserting
BOTTOM LINE: Court would NOT give estoppel on validity of patent. The patent itself had two parts and we
don’t know which the jury meant was valid.

Non-Mutual Collateral Estoppel

• Analyzing non-mutual collateral estoppel cases:
o Parties the same, or is the right party the same?
o Same requirements as above (same issue, necessarily decided, etc.)
o Does the doctrine of non-mutuality apply?
• *** Estoppel never applies against parties not bound by (not a party to / NOT present at) a previous
judgment (must have your “day in court” – full & fair opp)
• BUT a party asserting preclusion need NOT be a party to the first action, as long as the party against whom
the estoppel is asserted had a full & fair opportunity to litigate the issue in action 1.
Offensive and Defensive Use of Non-Mutual Collateral Estoppel
• Offensive: (sword) When the P seeks to use a previous judgment from an action in which D was a party
against him
• For offensive use of non-mutual collateral estoppel, the 4 prerequisites for collateral estoppel MUST be
met, AND the court must consider other factors including: (see Parklane)
a. Does this encourage a “wait and see” approach? Could the Ps have joined together but just chose
not to?
b. Did the D litigate the first case aggressively enough? Was there a lot at stake in first action or was
it obvious that a lot could be at stake in a subsequent action?
c. Was the D at a procedural disadvantage (he did not chose forum)?
d. One or more prior inconsistent judgments may make giving preclusive effect to one unfair.
• Defensive: (shield) Defensive use occurs when D seeks to prevent a P from asserting a claim the P has
previously litigated and lost against another D (Parklane, example is Blonder-Tongue) Person whom it’s
asserted against was the ACTIVE Party/ ∏ in the first action

Non-Mutual Defense
Action 1: Probate action to settle all matters in estate. Decided Decedent gave $$ to man as gift.
Action 2: Party from same action sues Bank of America (new party, bought old bank) regarding the $$ decedent
gave to man. Bank uses collateral estoppel defensively, saying the $$ was a gift as decided in first Action.
BOTTOM LINE: SC of CA decides non-mutual defensive collateral estoppel is ok. 1) Unfair for party to be
dragged into action that P already had crack at; 2) unseemliness bc can’t keep litigating over and over until it
wins; 3) Use of Resources – wastes, have an interest in only doing it once


U of I sues P1 for violation of patent. Court says patent NOT valid. Then U of I sues P2. P2 tries to use non-mutual
defensive collateral estoppel saying patent wasn’t valid.
BOTTOM LINE: Erosion of mutuality requirement serves purpose of keeping same issues from being re-
litigated. Unseemly, like gambling til you hit the jackpot. Confined to defensive, saves offensive for later day.

Action 1: SEC files against Parklane, Court rules that proxy statement was misleading. SEC wins
Action 2: Shareholders try to use first action offensively against Parklane
BOTTOM LINE: Offensive Non Mutual Collateral estoppel not absolutely barred, but give judge discretion
when deciding to use it. [don’t want to promote sideline sitting & potential unfairness]; 1) If party could have
joined in first action; 2) Posture of parties procedurally; 3) D didn’t anticipate full extent of liability; 4) prior
judgments in D’s favor.

Action 1: Black firefighters sue city. Consent decree ordered, change discriminatory practices but set quotas.
Action 2: White firefighters sue city for consent decree  if they enforce, hurts their rights. D says they are barred
from suing bc of consent decree. D says they should have come in under 24 to represent their interests.
BOTTOM LINE: They were not a party to the first action, so they are not bound. The system NEVER puts the
burden on a non-party to join an action, even if their interests are involved. [FRCP 19 leaves the burden ot the
parties to the action to decide to bring the others in]


Zipper clause in consent decree tried to bind non parties to the case. Antrim tried to stop government from cleaning
up its polluting activities by saying the consent decree bound them.
BOTTOM LINE: Cannot bind parties that are not in action. Zipper clause is null, ineffectual.