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Text-Specific Outlines > Civil Procedure Freer 7th ed.
Civil Procedure
Authors Richard D. Freer
Contents Wendy Collins Perdue
Text
1 Unit 1: Personal Jurisdiction
1.1 Does the court have power over the
defendant?
1.1.1 Long-arm Statute
1.2 Ways to get In Personam Jurisdiction
1.2.1 Consent
1.2.2 In-State Service
1.2.3 Domicile
Civil Procedure: Cases, Materials, and
1.2.4 General jurisdiction over any
claim, whether or not related to Questions, Seventh Edition
forum contacts Taught by
1.2.5 Specific Jurisdiction
1.2.5.1 What Contacts Will Taught at
Suffice to Establish Related
Specific Jurisdiction? course(s)
2 Unit 2: Notice & Opportunity to be Heard
3 Unit 3: Subject Matter Jurisdiction *ALWAYS
CHECK EVEN WHEN NOT IN QUESTION--
EVERYONE’S DUTY
3.1 Diversity Jurisdiction
3.1.1 Citizenship of Entities – 1332c1
3.1.2 Domestic and Probate Exception
3.2 Federal Question jurisdiction
3.3 Removal to Federal Court
4 Unit 4: Venue and Change of Venue
4.1 Transfer
5 Unit 5: Pleadings and Motions to Dismiss
6 Unit 6: Discovery
7 Unit 7: Adjudication: Summary Judgment, Trial,
and Post-Trial
7.1 JUDGMENT AS A MATTER OF LAW
(Rule 50)
7.2 Renewed Judgment as a Matter of Law
(judgment notwithstanding the
verdict/JNOV) – Rule 50(b)
7.3 New Trials
7.4 Appeals
8 Unit 8: Erie Doctrine
9 Unit 9: Preclusion – MAKE SURE TO
MENTION CHOICE OF LAW
10 Joinder and Supplemental Jur (mention 1367c if
in an essay ?)
Rule 4(k)(1)(A): A federal ct has jurisdiction only if the state in which it sits would have jurisdiction. EXCEPT:
■ When authorized by federal statute
■ “Nationwide service of process” for antitrust, securities, bankruptcy, interpleader (Rule 4(k)(1)(c)
■ Rule 4(k)(2) PJ in any federal ct where (Rule 4(k)(2)):
Claim is based on federal law
Jurisdiction is constitutional
No state would have PJ
Long-arm Statute
It is a fundamental principle of due process that a court may not issue a valid judgment if it lacks authority over the
defendant, that is, PJ. In addition, a court must have a statutory basis for exercising jurisdiction. In this case, we are not
told about the long-arm statute, but I will assume that there is one and that it reaches the Constitutional limit.
Therefore, the analysis will focus on whether the exercise of jurisdiction would comply with due process.
Source of
Jurisdiction Topic of Suit Enforceable Against
Power
Ownership of Presence of the
In rem That property.
property. prop.
Quasi-in- Personal Presence of the Property (only as much as property is worth, even if dispute is over more money)
rem type 2 obligation property (attach at outset of case) (see Shaffer)
Power of Personal That person & any prop they own; in state or not; Full Faith & Creditused to need
In personam
person obligation consent & presence + service--new ways today
In-State Service
Rule 4(e): Proper in-state service for an individual (to determine if service was proper)
Burnham v. Superior Court of Cal.: SC upheld jurisdiction over D who is physically, although temporarily, w/in
state when served w/ process
○ Scalia: presence in the forum state has always been sufficient
○ Brennan: even temporary visitors benefit from state laws
○ Tag jurisdiction is a form of general jurisdiction in that the claim need not arise or relate to the D’s
presence in the forum
James-Dickinson Farm Mortgage Co v. Harry - can’t claim jurisdiction in another state not related to business by
serving process aka “tagging” an executive officer temporarily therein
Personal service over an individual partner or member of such a non-incorporated business (LLCs!!!) who is
present in the forum on company business will confer jurisdiction on the business
Fraud or kidnapping circumstances (lure someone fraudulently in order to serve them and gain PJ) à cts would
probably not uphold this bc they want to discourage this
Domicile
Individuals: domicile if a place of general PJ
Milliken: there is PJ over D where D is domiciled even if D is temporarily away (instate service not necessary if
domiciled there)
Businesses: state of incorporation — see general jurisdiction
General jurisdiction over any claim, whether or not related to forum contacts
General jurisdiction allows a court to exercise jurisdiction over any claim against a defendant if the defendant is “at
home” in the forum state. A defendant corporation is at home in its state of incorporation, the state of its principal
place of business, and perhaps in an exceptional case some other state where it has overwhelming activity. Daimler v.
Bauman.
Available when contacts w/ forum state are so substantial as to render the D effectively “at home”
○ Individual: domicile
○ Corporation: state of incorporation and principal place of business
○ LLC: The law on general personal jurisdiction over unincorporated entities is unsettled at the moment
■ Post-Daimler—LLCs, LLPs, and other unincorporated entities — treated like corporations for
purposes of general PJ (most cts say this)
■ AKA look for the LLC’s principal place of business, the state under whose laws the entity is
formed, and (in an exceptional case) , or some other place where it could be considered “at home”
Before Perkins v. Benguet Consolidated Mining Co. (1952) (SC), only general PJ in state of incorporation
○ Held: Also general PJ in the place of a corporation’s HQ
○ Facts: D was a Philippine corp. During WWII, ran activities from OH. SC upheld general PJ in
OH (not specific--didn’t have to do w/ OH) on account of its HQ being temporarily there
Mere purchases w/o continuous and systematic business contacts are not enough to establish general
jurisdiction. ('Helicopteros')
Daimler AG v. Bauman (SC) (2014) (at home standard)
○ Held: ct may assert general jurisdiction over D when the corp’s affiliations w/ the forum state are
so constant & pervasive as to render it essentially at home in the forum state
○ NOTE: High bar for general jurisdiction: even substantial contacts may be insufficient
○ May be an exceptional case where conduct in state is so substantial & of nature as to render
corporation at home in the forum state
○ A defendant corporation is at home in its state of incorporation, the state of its principal place of
business, and perhaps in an exceptional case some other state where it has overwhelming activity.
Daimler v. Bauman.
■ If question alludes that there might be a third place, mention this!!!
Hertz v. Friend: SC decided that the PPB was the nerve center (not “muscle center”)
**Note: this is a form of general PJ. HOWEVER, Daimler doesn’t mention whether its ruling
applies if a state long-arm statute allows for a company to “consent” to general PJ. This is still being
discussed in the courts
Specific Jurisdiction
The more promising jurisdictional theory is specific jurisdiction, which is available when there are minimum contacts
between the defendant, the claim, and the forum state such that maintaining the suit would not offend traditional
notions of fair play and substantial justice. See Int’l Shoe.
McGee v. International Life Insurance: Cal. P sued Tex. life ins comp for benefits (purchased policy in Cal. &
did all activity there). Contacts sufficient to establish min contacts bc everything was done in Cal. from the start.
○ Held: A single act/interaction is enough for specific PJ if the suit arose from that interaction
○ Due process clause allows for Ps in one state to sue company in another state if the suit is based on a
contract which had substantial connection w/ P’s state
Purposeful availment This case resembles World-Wide Volkswagen in that the plaintiff took the product away from the
place of sale. The unilateral activity of the plaintiff cannot subject the defendant to suit wherever the plaintiff takes the
product.Unlike in WWVW, here the defendant [fill in the blank – something directed @ forum state].
Keeton v. Hustler Magazine: Defamation lawsuit (from NY) on magazine in NH bc distributed nationwide
○ Ct upheld PJ despite P’s minimal contact w/ NH
○ Held: If you reach out and create harm there (directed at the forum), will be minimum contacts
■ D has to reach out and do it; advertising isn’t enough
Calder v. Jones: Cal. resident was subject of libel, acts that were subject of the article allegedly occurred
in Cal., P’s career in Cal., calls for Cal. sources
○ Harmful effects test: even if D has never set foot in the state, jurisdiction can still be established
if D specifically targeted forum state
Walden v. Fiore (2014): Drug case in airport in GA, tried to sue in home state of Nevada
○ No PJ; important facts are D’s contacts with the forum state, not w/ persons who reside there
○ “It is the defendant, not the plaintiff or third parties, who must create contacts w/ the forum state”
Vangheluwe: Doxing case where Ps around the country disclosed false info about P online
○ Rule: merely posting a defamatory statement about the P online not enough to hale the poster into
the state where P resides; instead the poster’s conduct must have involved P’s state in some
additional way ('Calder effects test') (home address)
○ Mere injury to a forum resident is not sufficient connection to the forum; the D needs to
specifically direct tortious conduct at the forum
Stream of Commerce
Gray v. American Radiator & Standard Sanitary Corp. (1961)--law updated (McIntyre)
Asahi Metal Indust. Co. v. Superior Court of California: no maj opinion
J. McIntyre v. Nicastro (need to cite all 3) (SC) (2011)--not 5 votes so need to cite all
If the court follows the Kennedy approach from McIntyre v. Nicastro, then . . . . If the court follows the Breyer view,
then . . . If the court follows the Ginsburg approach then...
○ P (NJ) injured while using machine manufactured by D (inc. in England). D did not sell machines here, used a
US distributor, located in OH.
○ Kennedy (plurality decision--4)
■ Stream of commerce plus some additional acts by which the D purposefully avails itself in the forum
state
■ Looking for more purposeful availment (marketing, commercial relationship, etc.)
○ Breyer (Concurring opinion) (2)
■ Looks at whether there’s a consistent flow of products in the forum state. One-time sale not enough
(trickle of commerce); but thinks that there should be PJ if there were regular sales to the forum state.
■ Is the flow of products a significant portion of the total sales of the company?
○ Ginsburg (Dissent) (3)
■ By having a foreign distributor sell its machines in the US, they did purposefully avail themselves to US
markets nationwide--enough for specific jurisdiction
■ Suit would be reasonable in any state it sells to
Jones v. Flowers (2006) (Sup. Ct.): sent letter to inform of tax delinquency - letter returned unclaimed - took no
additional steps to contact owner - this activity did violate due process bc they knew that it was not received
Weigner v. NYC (2d Cir., 1988): ct upheld a foreclosure where notice sent by regular mail, but owner claimed
not to have received the notice. He argued that notice by certified or registered mail should be required
Email? Several cts have upheld in regards to Ds who could not be served w/ process in the US. In each of these
P demonstrated that email service reasonably calculated to give actual notice and therefore satisfied Mullane
○ In domestic context, some cts have rejected email service of process bc not in FRCP
Covey v. Town of Somers: Court refused to uphold notice mailed to a person known to be mentally incompetent
Schroeder v. City of NY: Publication in a newspaper and posting of notices near the property insufficient if D’s
name and address easily ascertainable from public records’
Greene v. Lindsey (US Sup. 1982): Court required service by mail in addition to posting on the door of the
premises, though said reasonable in some cases
R.4c2: can only serve if > 18 & not a party to the complaint
Rule 4(e)--rules for service to an individual
○ (1) follow state law (state you’re in or state of the dist ct) for serving a summons--sometimes state rule
may allow a lower standard--fine to do that
○ (2) Or follow 4(e)(2) methods:
■ Personal delivery of summons and complaint to D
■ leaving a copy of each at the individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
■ Deliver copy to an authorized agent
National Development Co
○ Held: a party may have several primary places of residence at which he may be properly served.
As long as each has a sufficient indicia of permanence
○ Rule 4(e)(2)(B): must be served at dwelling house or usual place of abode
■ Must show the location has sufficient indicia of permanence
○ May not spend a ton of time here, but it helped the case that he happened to be there at the time of
the lawsuit (even though only there a month or so out of the year) & maid (capable adult) received
notice
hotel case - this isn’t someone staying in a hotel for vacation, this was a long-term stay and the defendants
had left the old home, First Nat. Bank & Trust Co, v. Ingerton
Rule 4(h)--Rules for service to a business (LLCs)
○ Or Rule 4 (e) (1) STATE LAW
○ Delivering a copy of summons + complaint to an officer, managing/general agent,
○ or IF TO AN authorized agent and--if agent authorized by statute & statute requires--by also
mailing a copy to D (mailing is only required if the agent is one authorized by statute (not if it’s to
the officer) and the statute so requires)
Rule 4(f)--Service to inds in a foreign country
Rule 4(d) Waiving Service: D can waive service. When the D says - just mail it to me and that will be
good.
○ Benefit to the Defendant: might not be required to pay process fees. More time to answer - 60
days instead of 21 days. This is like an automatic extension.
4(m): Timing: service must be made w/in 120 days after complaint is filed'
○ Can only get an extension to show good-faith efforts to serve process
Rule 4 (k)(1)(A) -
○ We can serve process throughout the state where the federal court sits, OR
○ If a state court could do so as well
○ ex) San Diego Federal Court can serve in Northern California even if not the correct district
○ provides that a FC can piggyback on the long-arm statute of the state in which it sits
Art. III: ceiling to how much jurisdiction the FCs can have. Out of this, Cong determines how much it wants.
Section I: federal court of appeals and district courts are the inferior federal courts. These inferior courts are
optional as ordained by Congress. The Supreme Court is the only required federal court
○ Section II: Judicial power. 9 heads of jurisdiction (types of cases).
○ Most important categories:
■ federal question or arising under jurisdiction (cases that arise under federal law). Governed by
1331.
■ Between citizens of different states or between a foreign citizen or subject and a citizen of the US
- diversity / alienage--1332
It doesn’t say how much money you need to have involved for diversity of jurisdiction. But
when you look at the federal statute, it has an amount listed: $75k
Exclusive federal (civil) jurisdiction: patents, CR, bankruptcy, securities, etc.
Diversity Jurisdiction
Under 28 U.S.C. § 1332, there is SMJ between citizens of different states involving more than $75,000.A corporation
has dual citizenship in its state of incorporation and its PPB. Here, the parties are completely diverse bc…
(Strawbridge for complete diversity).'28 USC § 1332 Diversity Jurisdiction'
Alienage jurisdiction
Mas v. Perry (1974) Mr. Mas is a French citizen. Mrs. Mas - domicile of origin is Mississippi. Then she goes to
LSU to be a grad student, gets married to Mr. Mas. Get married in MS. Then they go back to Louisiana for 2
years - where they live and where the tort occurs. File suit in Louisiana and then they move to Illinois.
○ Held: Citizenship = domicile
○ It’s more than residence. It’s your fixed home, the place you intend to remain.
■ You get one when you’re born and you keep it until you get a new permanent home.
■ Factors to consider: voter reg, purchase of home, payment of taxes, in-state college tuition, etc.
○ Care about citizenship at the time the suit was filed.
If you’re a US citizen, and you leave the country, you’re a citizen of whatever state you were in
Galva Foundry Co. v. Heiden: D: lifelong cit of Illinois, but after he retired, had a 2nd home in Florida, got a FL
driver’s license, registered to vote there, etc. Spent several months a yr in FL, several months/yr traveling, rest
of time in Ill
○ Court found that Heiden remained an Ill. domiciliary.
Held: rationale for DJ: protect nonresidents from possible prejudices that they might encounter in local cts.
Since D was a long-time resident of Ill. - unlikely to encounter hostility in the cts
Representative suits §1332(c): legal reps adopt citizenship of person they’re representing (children, decedents)
DC — we treat DC as a state for diversity purposes.
Even if you have a case that would otherwise qualify for diversity jurisdiction...
○ If it were a domestic relations case or a probate case, no federal jurisdiction
○ Very narrow. By domestic relations, mean (divorce, alimony, child custody), not everything that
involves family relations (related torts let’s say).
○ W/ probate - won’t probate a will or administer an estate. But can still rule on cases related to estates.
§1331: The district cts shall have original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States.
○ Cases w/ no federal substantive law in them: landlord/tenant disputes, contracts, family law, etc.
○ REQUIRES WELL-PLEADED COMPLAINT RULE & CENTRALITY OF THE FEDERAL ? TO
THE COMPLAINT
Mottley: to settle a claim, RR gave D lifetime passes. Then a fed. statute forbade RRs from giving such passes.
RR failed to honor passes. Complaint was for a contract dispute BUT the real issue was whether the fed statute
applied when an agreement was in place.
○ Well-Pleaded Complaint Rule (Holding): The actual claim needs to come out of a federal question, it
isn’t enough that the defense will raise some constitutional or federal issue.
○ Elements (not defense!) determines whether it “arises under” federal/const law
Well-Pleaded Complaint Rule also applies to counterclaims; i.e., even if counterclaim raises a fed ?, doesn’t
invoke SMJ - Holmes
○ EXCEPT: §1338(a) allows federal courts to hear cases arising under federal intellectual property law
even if the intellectual property law claim is asserted in a counterclaim
Declaratory Judgment: Sometimes P seeks noncoercive remedy of a declaratory judgment - requests that the court
declare the relative rights between the parties
For ex: ins comp may seek declaratory declaration that it isn’t required to pay under a policy bc the insured
breached a condition.
○ Coercive suit that would occur is a patent infringement case. That arises under fed law.
Ex: new inventor sues patent holder; wants declaration that patent is invalid
TO DETERMINE FED ? JURISDICTION...imagine what the suit would have looked like w/o declaratory
judgment: plaintiff would have sued the insurance company for damages for not paying life insurance party
○ Apply well-pleaded complaint rule to that suit (what would the original suit have been)
Centrality of the Federal Issue to the ClaimFed courts have imposed another statutory limitation on the words “arising
under” in §1331.
Fed issue must also be a sufficiently central part of the dispute to justify jurisdiction.
Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (MODERN TEST FOR WHEN
THERE’S AN EMBEDDED FEDERAL ISSUE IN A STATE CLAIM!): P claimed that D’s title was invalid
bc the IRS failed to notify P of the tax delinquency in the proper manner before they sold the property to D -
said it needed personal service, not service by certified mail according to federal law (title claim — state; notice
— fed)
○ Held: natl interest in providing a federal forum for federal tax litigation is sufficiently substantial for
fed ?. Would not distort any division of labor between the state and federal courts
○ TEST: Federal courts will have jurisdiction over a state claim if the federal ingredient is:
■ Necessarily raised…
■ a disputed fed issue — only important issue was one of interpreting federal statute
■ that is substantial — collecting taxes is important!
Gunn v. Minton: malpractice claim (of a patent matter)
○ Clarification of the “substantial” requirement: Must be important to the federal
system as a whole, not just the immediate claim
○ Decision of patent malpractice issue is a fed issue, but not sufficiently substantial to
the fed judicial system and state-court jurisdiction would not upset the balance of
power between the state/federal courts
■ And unlikely to affect the balance of power between state and federal courts — Only a
small portion of state tax cases are likely to involve questions of federal law
Supplemental Jurisdiction (28 U.S.C. § 1367): A case that invokes federal SMJ - diversity of citizenship, alienage,
or federal question- might include individual claims or issues that do not.
For any claim where the federal court has original jurisdiction, it may exercise supplemental jurisdiction over
state claims that “form part of the same case or controversy under Article III”
Subsections (b) and (c) give specific exceptions
○ (b) In diversity jurisdiction case, no supplemental jurisdiction over non-diverse joined parties
○ (c) No supp jur if the state law claim is particularly complex or dominates over the fed claim
In FC, D generally must respond to suit against her w/in 21 days of process. What happens if the D removes
after (but before 30 days)? Is she late? No.
○ Federal Rule 81(c)(2): allows Ds at least 7 days after filing the notice of removal in which to make
their defensive response in federal court.
D has 30 days from when the D is served to remove the lawsuit (1446(b)(1))
○ OR according to 1446(b)(3), 30 days from when the case becomes removable
■ BUT 1-yr outer limit for diversity (& alienage) (1446c1)
If a federal question pops up, then it’s still okay
UNLESS if the plaintiff acts in bad faith (1446 (c)(1))
■ Example of bad faith for diversity: if the plaintiff acts in bad faith trying to conceal the amount in
controversy
Fraudulent joinder: P purposely spoils complete diversity so they can stay in state court. No
plausible basis for recovery / no possibility for recovery
○ Not totally in the statute yet, still in CL. This is about extra defendants when there’s
not a legitimate claim against them.
○ Still has 30 days from when the D figures out that there’s fraudulent joinder
○ Boss v. Nissan: Car accident. P sued Nissan (not MD) in state ct & joined 3 MD
residents as Ds During discovery, learned that P had fraudulently joined MD parties.
Nissan filed notice of removal, over non-fraudulently joined parties
■ Held: Removal was timely bc according to 1446(b)(1), D has 30 days to file a
notice of removal from date ppl realize case is removable
1441(a) – D may remove to the district court for the district “embracing the place where such action is pending”
Instate defendant rule: §1441(b)(2): Ds sued in their home state may not remove to FC in a diversity case
THIS IS FOR DIVERSITY ONLY
Only blocks removals for diversity purposes, not original diversity filings
1441(c) – a suit with both a state and federal component can be removed, but the state claim will be severed and
remanded to state court
1446(b)(2)(A): Rule of unanimity: all Ds who have been properly joined & served must agree to removal
D has chance to persuade the others to remove if D3 is served later; even though others ran out of time
§1446(b)(2)(c): If Ds served at different times,
Later-served D filed notice of removal: earlier-served D may consent even though it didn’t initiate it
Later-served D disagrees w/ removal... §1448: ... when a later served D would not have agreed to the
removal, can file to remand the case to state court bc they would not have agreed to removal.
1446(c)(2): if removing based on diversity, the sum demanded in good faith in the initial pleading shall be
deemed to be the amnt in controversy (if nonmonetary relief/doesn’t mention – can assert amount in notice of
removal)
How to File…
1447(c): Procedure after removal generally: if you wish to remand on a defect other than SMJ, P has 30 days
to remand back.
If court lacked SMJ, can do it at any point. Ct can also bring up sua sponte
1447(e): If P tries to join a diversity-destroying defendant after removal, the court may either:
○ (i) deny joinder
○ (ii) allow joinder and remand the case.
Voluntary/involuntary rule (if D had destroyed diversity and then he leaves and you want to go to FC) (Rule 41)
Transfer
Choice of Law
Other categories: transferee court acts as if the suit were originally brought in the transferee court.
○ Law that would be applied doesn’t stick (transferor court wasn’t a proper court in which to sue).
§1407 Multi-District Litigation (MDL): permits all these federal cases to be transferred to one district and
consolidated for pretrial proceedings. Need not meet other venue requirements.
○ In mass torts (airplane crashes), may be many cases in different fed districts which all raise the same ?
○ May not be able to do a big class action in FC
○ So could have discovery done 1x for this one defendant rather than doing it all over the country
○ Once the pre-trial proceedings are done, supposed to go back to their home cts
○ But not a lot go to trial
○ Panel of judges decides who gets which MDL case
Want to transfer, but don’t have the means to do so (not in your own system)
○ State-to-state, country-to-country
Piper Aircraft Co. v. Reyno: plane crash in Scotland; Piper in OH; sued comp in Cal.
○ Demonstrates the balancing test used to determine whether a case should be dismissed due to forum non
conveniens
○ Ct of Appeals gave too much weight to the possible impact of the different substantive law in a different
forum -- Generally, this should be a small consideration
○ Gilbert Factors to determine when FNC should apply…
■ Private Interest Factors
Ease and access to sources of proof, attendance, cost of attendance, appropriate to action; all
other things that would make trial expeditious and inexpensive
Not supposed to consider choice of law EXCEPT:
○ When no remedy for Ps (statute of limitations problem) OR
■ BUT court can condition its FNC dismissal on D waiving certain defenses,
including statute of limitations!!!
○ Remedy clearly unsatisfactory (N Korea..probs not, but Scotland is fine)
■ Public Interest Factors
Certain locality may have a particular interest in case; burden of having cts try case
■ If the 2 come out evenly, will give deference to where P chose to file (less so when foreign)
Requirements of a complaint Rule 7(a): Pleadings. Only these pleadings are allowed: a complaint; an answer to a
complaint; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party
complaint; an answer to a third-party complaint; and if the court orders one, a reply to an answer.
Rule 8:
○ (a1) Short and plain statement of SMJ (CITIZEN; exceeds $75k)
■ Must allege basis for ct’s jurisdiction over all claims (federal ?, diversity, or supplemental)
■ Adding PJ + venue is common, but not required (they are waivable so the burden is on the
defendant to challenge them as a defense)
○ (a2) Short and plain statement of the claim showing that the pleader is entitled to relief'
■ Legal sufficiency: taking everything P says as true, P will win
Ex. Loss of consortium for spouses but BF and GF filing, not legally sufficient, not married,
no recovery
IF LEGALLY INSUFFICIENT, Defendant files 12(b)(6) motion failure to state a claim
(usually w/ leave to amend)
■ Factual sufficiency
PLAUSIBILITY PLEADING (SEE TWIQBAL)
Twombly: Parallel conduct is not enough to show an agreement
○ Held: factual theory of the complaint must be “plausible”
■ Plausible does not mean probable to result in a victory for the plaintiff. It
means more than the plaintiff has at least some chance to win.
Ashcroft v. Iqbal: P alleged discriminatory policies by FBI. Detention isn’t enough to
show discrimination by an officer.
○ Held: Plausibility standard not limited to antitrust cases--reinterpreted Rule
8(a)(2) to apply to all civil cases in federal court
○ Standard for evaluating pleadings:
■ Disregard legal conclusions
Sometimes allow things such as “negligently” drove though
■ Determine whether remaining facts show plausible claim to relief
taking factual allegations as true
if inferences required, only plausible inferences allowed
SPLIT IN THE CTS ABOUT HOW STRICTLY TO APPLY TWIQBAL:
○ Swanson v. Citibank, N.A. (7th Cir): P applied for loan. Was
initially approved; after appraisal, denied. P said bank and appraiser
denied her bc of her race.
■ Held: plausibility standard only requires a P to allege a set of
facts that are possible; w/ facts P presented, possible there was
discrimination.
P identified when who, how
■ Bruhl: compare to McCleary-Evans; this is the weaker case
but cts divided on plausibility; depends on the judge
■ IF pleadings in the gray area, would say that some cts would
treat this info as plausible & others would say that
discrimination is implausible w/o some additional facts to
show discrimination (direct evidence of racist comments,
hiring history, etc.). Some courts hold that it is sufficient
(compare 4th and 7th circuits)
○ McCleary-Evans v. Md. Dep’t of Transp. (4th Cir): P worked for D
for 20 yrs; despite experience & education, wasn’t selected, and
positions were filled by 2 non-black candidates. Alleged
discrimination.
■ Held: failed to include adequate factual allegations to
support a claim that D discriminated against. Actions were too
far separated and could have other lawful explanations
Georges v. Dominion Payroll: D hired, alleged she received only
positive feedback, and was later fired and replaced with someone
who was younger and had less experience.
○ Held: Complaint met plausibility stnd
○ Reason: only received pos feedback; replacement younger
w/ less experience
○ (a3) Demand for relief sought'
■ Wherefore/ P requests....and such other relief the court
thinks is appropriate.
■ Must ask for jury trial specifically! (38b – put in complaint,
or if you forget that, put in another doc)
■ it’s okay to say an amount to be determined at trial, during
Discovery (w/ diversity can just say it’s more than 75k w/ final
amnt TBD at trial)
■ Rule 54(c) & many state provisions: demand doesn’t limit
P’s recovery
Pleadings must also have...Rule 10: governs the form of all
pleadings in federal court.
○ (a) Caption - Every pleading must have a caption w/ ct's
name, a title, a file number, and a Rule 7(a) designation. The
title of the complaint must name all the parties; the title of
other pleadings.
○ (b) #d paragraphs, can refer to the #d paragraphs in
answer/later
Rule 9 - Special Pleadings (Heightened pleading standards for fraud and in some other kinds of statutes)
Rule 11: veracity in pleadings. Some reasonable basis in fact for a pleading
Response to a Complaint'
Even if you’re not sure, just put it in the answer if there’s even a chance
Why file a 12(b) motion instead of putting it in an answer (or vise versa)?
○ D would typically prefer to file a motion and dismiss a complaint (don’t need to go through discovery or
admit the bad things you potentially did)
○ A win on the merits can be better than a jurisdictional win. If D wins on the merits, the P can’t sue again
in the state next door. A loss on the merits precludes another claim. But a jurisdictional loss doesn’t
necessarily preclude this.
○ Only has 21 days to file a motion or answer. Might sit on the jurisdictional issue for awhile and just
include it in the answer
(a) Must serve this or an answer w/in 21 days after being served summons + complaint
○ (a1) Unless it waived service (Rule 4(d)), w/in 60 days after request for waiver was sent
○ (a1) Must answer counterclaim or crossclaim within 21 days after being served
○ (a1) Must reply to an answer within 21 days after being served if required
○ (a4) if ct denies motion or postpones its disposition until trial, 14 days after notice of the ct’s action
○ (a4) if the ct grants a motion for a more definite statement, 14 days
(b) Every defense to a claim for relief in any pleading must be asserted in the responsive pleading A party may
assert the following defenses by motion (red = waivable! Need to go into answer or 1st R.12 motion):
○ (1) lack of subject-matter jurisdiction
○ (2) lack of personal jurisdiction;
○ (3) improper venue;
○ (4) insufficient process;
○ (5) insufficient service of process;
○ (6) failure to state a claim upon which relief can be granted; and
■ 12h: 12(b)(6) and (7) can be raised at any time through trial; but just based on the pleadings
■ cannot be filed agaist an answer (would use 12c)
○ (7) failure to join a party under Rule 19.
Motion must be made before pleading if a responsive pleading is allowed. No defense / objection is waived by
joining it with other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings. Like a 12(b)(6) motion; like a motion for SJ; after the pleadings
are closed rather than before the answer—but before discovery
○ Rarer; assumes everything in pleadings true
○ But most say that if they can’t grant a 12(b)(6) motion, usually will force Ds to go to discovery
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to & not excluded by the ct, the motion must be treated as one for SJ under
R.56. All parties must be given a reasonable opp to present all the material that is pertinent to the motion.
(e) Motion for a More Definite Statement: if so vague or ambiguous that party can’t reas prepare a response.
Must be filed before responsive pleading & point out defects; Does NOT waive the right to make a 12(b)(6) motion
(f) Motion to Strike. May strike insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. The court may act:
○ (1) on its own; or
○ (2) on motion made by a party before responding to the pleading OR w/in 21 days if resp pleading not
allowed
12(g) and 12(h)
○ 12(g): motion under Rule 12 may be joined with any other motion allowed by Rule 12
■ Can’t make 2 different Rule 12 motions (except 12(b)(6) & SMJ); BUT can make say a motion to
extend time & then a Rule 12 motion (12(g) only covers Rule 12 motions)
○ 12h: 12(b)(2-5) defenses are waived if not included in first Rule 12 response
○ 12(h)(1)(B): For defenses 2-5, if D files an answer, it better be in the answer. If a D files a motion, needs
to be in the motion. If it’s not in those, then it’s gone.
○ 12(b)(1) is never waived, allocation of judicial authority (12h)
○ Not about the merits of the case, are about the place of the case
If responsive pleading is allowed, must make motion before response
Pleadings: documents setting forth factual and legal contentions of the parties as required by Rules 8 & 9.
○ An answer is a pleading (Rule 7(a))
Motions: requests that the court order something (Rule 7(b)(1))
Pretrial conference order of the court supersedes the pleadings; issues not included in such an order generally
are waived
Party may move to dismiss a case under doctrine of forum non conveniens
○ Not a motion to dismiss under Rule 12(b)(3) improper venue; so it isn’t waived if asserted in the first
Rule 12 response
Collateral and Direct Attacks on Personal Jurisdiction
○ Direct attack: special appearance in court to challenge PJ
■ Use when case is strong on the merits
■ BUT! Need to be prepared to stick out the case through appeals
■ Traditional rule: If state rejects...still need to go to trial there; can only appeal PJ decision after
○ Collateral attack: client can ignore & allow the state ct to enter a default judgment against her
■ Use when strong PJ defense and weak merits defense
■ When P tries to enforce default judgment in home state, client could make a collateral attack
■ In this attack, would argue that the other state’s judgment is not entitled to full faith and credit bc
state didn’t have PJ
■ Benefits: allows client to litigate at home
■ Risky: P might try to enforce anywhere client has property--could be not at home
Wherever the P seeks to enforce the other state’s judgment, even if it’s in the home state--
collateral attack only permits client to raise the issue of whether the court PJ; can’t contest the
merits of the claim
If home state ct determines that other state had jurisdiction, then the default judgment against
the client is enforced w/o litigation of the merits of the underlying claim
○ If client has a weak case on the merits, might be better to do a collateral attack bc then can
challenge PJ in a dif suit and if it was determined that they didn’t have PJ, P would have to re-file in
home state.
■ Might make them want to settle/discourage them from bringing a 2nd suit. If you lost PJ,
not a big loss bc probably would have had to pay anyway. (collateral attack)
○ If client has a strong case on the merits, probably a better idea to launch a direct attack on PJ
Baldwin: D claimed not properly served. Made special appearance & filed a motion to quash and dismiss
for want of service [Rule 12(b)(5)]. Court quashed service, but refused to dismiss. D filed another motion
to dismiss for lack of PJ [R.12(b)(2)]. Motion overruled, w/ leave to plead w/in 30 days. D didn’t file a
plea -- so judgment entered for amount claimed. THEN D went to Iowa ct to claim trial wasn’t proper
○ Held: by making a special appearance in the Missouri court, consented to allowing the Missouri ct
litigate ? of whether it had PJ over D. After Missouri made its decision, D could have appealed in
Missouri courts; can’t go to a different state to contest ruling after it already appeared.
○ Res judicata (“claim preclusion”): can only challenge PJ once--in direct or collateral attack--
not both
Challenging Federal SMJ
○ Usually D will challenge by moving to dismiss under Rule 12(b)(1)
○ P may challenge SMJ of a removed case by moving to remand to state court under 28 USC §1447
○ Can raise it any time; even at SC
○ Same rule applies w/ collateral attacks--Ds who litigate the issue of SMJ and loses can’t challenge
it again in a separate action--though has narrow exceptions - Bankruptcy legislation
○ Party can’t raise the issue of SMJ in a collateral suit -should have been raised in first proceeding
THE ANSWER
Rule 15(a)(1)(B): Can amend your pleadings (incl. answer) w/in 21 days of filing
21 days to file an answer after being served; 14 days to answer after notice of denial of the Rule 12 motion
Admissions / Denials (*must include)
○ Rule 8(b)(1)(A): party must state in short & plain terms its defenses to each claim asserted against it
○ Rule 8(b)(1)(B): admit or deny the allegations asserted against it by opposing party
■ Admit
Req by Rule 11 to admit anything that is obviously true; can settle if damaging
■ Deny; by denying, allegation is joined (contested)
General denial (Rule 8(b)(3)): denies whole complaint (rare)
Specific denial (Rule 8(b)(3-4)): D responding to specific details of the complaint
11(b)(4) how much basis you need for a denial “warranted by evidence” or “reasonably based
on belief or a lack of information”
Rule 8(b)(5): can claim lack of knowledge; BUT can’t use if it’s public record / has access to
knowledge
Rule 8(b)(6): allegations (other than damages) considered admitted if responsive pleading
required & allegation not denied
○ Some states require a reply though
○ Rule 7(a): a reply to an answer isn’t required but may be ordered
Don’t quote the denials, say: D denies the allegations in paragraph X.
○ OR Admits to X, doesn’t have sufficient knowledge of the rest of the allegations in
par X
■ Legal Conclusion → Paragraph 8 asserts legal contentions to which no response is required.
To the extent that it can be construed to contain factual allegations, they are denied.
■ Claim insufficient knowledge or information
Treated as a denial
Can get around legal conclusion
Defenses (*must include, if applicable)
○ Rule 8(c)(1) lists common defenses (not every defense)
○ Must assert affirmative defenses in a responsive pleading or it’s waived!
■ Must plead affirmative defenses in answer or they are waived
■ GEOMC v. Calmare (2d Cir. 2019):
Plausibility standard of Twiqbal applies to defenses
BUT also need to consider that defense is limited to 21/14-day rules (not as
much time), also consider the nature of the defense (statute of limitations
should be readily available, maybe not for some others), warranting a
relaxed application of the plausibility standard
■ Majority of courts: say defenses don’t need to comply w/ Twombly and Iqbal
■ BUT minority of courts: defenses do need to comply w/ Twombly & Iqbal
○ 8(d)(2): can plead alternative defenses
Counterclaim, maybe (I didn’t do x, AND you did y) (Can include...might have to)
○ Why file a counterclaim as opposed to a separate action?
■ Rule 13(a) sometimes requires a D to assert a counterclaim
■ Example: If contract dispute, and both are alleging that the other breached the
contract
■ If it arises out of the same event, typically must be in a counterclaim
■ If unrelated, may assert the counterclaim, but doesn’t have to
○ Crossclaim (against a co-party)
○ Can also force a joinder of co-Ds
Default: notation on court’s docket sheet that D has failed to plead or otherwise respond in time
○ Usually happens when P files complaint and D never shows up
○ Rule 55(a): D’s failure to respond w/in prescribed time doesn’t automatically result in an entry for
default. P must ask clerk to enter the default on the docket sheet. Once the default is entered, D may not
respond by motion or answer.
■ Need a good reason
○ Rule 6(b): time extensions for good cause
■ May be granted without a motion if requested within original deadline
■ May be granted by motion after deadline in cases of excusable neglect
○ Rule 54(c): default judgment can’t exceed relief demanded in pleadings (so D knows what is on the
line)
■ 55(b)(1): demands for specific relief must be entered by CLERK OF COURT
demands w/ specific amounts
■ 55(b)(2) all other demands must be rendered by a court order (prof. discretion)
Usually tort cases, judge will look at case, have a hearing, and determine how much in
damages should be awarded
Also sent to judge if Defendant is minor or incompetent
need to send written notice to D of these steps at least 7 days before hearing
■ 55(c) set aside entry of default for good cause or excusable neglect - left for discretion of the ct
Rule 60(b): allows a motion to set aside a judgment if one’s already been entered for “excusable neglect”
(a) At the discretion of the district judge
(b) Most cts conclude that a lawyer’s failure to respond appropriately Rule 60(b)(6) unless
extraordinary circumstances
If worried about hurdle for pleadings being too high, could strengthen Rule 11 to keep bad pleadings out
Before applying sanctions, requires the opportunity to be heard
Rule 11(a): must sign every pleading, motion, paper submitted to the ct
Rule 11(b): signature certifies these things (lists how one violates R.11) [conduct subject to sanctions]:
○ (b1) Papers not being presented for any improper purpose
○ (b2) Claims/defenses, etc. are warranted by existing law
■ OR for a non-frivolous argument for extending, modifying, or reversing existing law)
■ Need to tell the ct that’s what you’re doing though
○ (b3) Facts have evidentiary support - not “are true” or “are true to the best of one’s knowledge” (in a
verified complaint would have to be true to the best of one’s knowledge)
■ Should have some basis for this
○ (b4) denials of factual contentions must be warranted on the evidence, or are reasonably based on belief
or a lack of information **Needs to be reasonable under the circumstances - 1 day to prepare before SoL
runs out is different than 3 months to prepare, different stnds
■ BUT it’s a continuing duty, if it becomes clear claim has no basis in law, duty to stop pursuing
FC can impose Rule 11 sanctions even when it might lack jurisdiction (Cooter)
○ Had already voluntarily dismissed suit, still imposed
District ct may impose Rule 11 sanctions in a case in which the court is later determined to be w/o SMJ
(Willy)
R.11c ways to impose sanctions – ct can file or judge can act sua sponte (judge issues order to show
cause; show why you shouldn’t be sanctioned)
○ Rule 11(c)(2): opposing side can make a motion for sanctions
■ 21 Day Safe-Harbor Rule: Serve other side, then 21 days for the other party to fix the
issue BEFORE you file w/ the ct - allows other side to correct problem 1st
○ Rule 11(c)(3): Court can also sanction attorney, law firm, or party on its own initiative
■ Can apply to law firm or atty
○ Rule 11(c)(4): Monetary sanctions: compensation for attorney’s fees can only be ordered for
sanctions imposed by motion –
■ Goal is to give sanctions that suffice to deter repetition of conduct in future
■ Possible sanctions: nonmonetary directives, penalty in ct, an order directing payment to the
movant of part or all of the reasonable atty’s fees & other expenses directly resulting from
violation
1) 2 types of mo\netary sanctions: penalty paid into the court, or it could be paying the
other side’s attys fees that were used in responding to that frivolous motion
2) Party can recover attorney’s fees when it filed a motion for sanctions and the
attorney fees were in response to the conduct in question
○ Rule 11(c)(5)(A-B): can’t impose monetary sanctions against a represented party for
violating 11(b)(2)
■ Or on its own, unless it issued the show-cause order under Rule 11(c)(3)
○ Rule 11(c)(6): order imposing sanction must describe sanctioned conduct & explain basis
for
Verified pleadings are signed under oath (under penalty of perjury) and were once quite common--
today has option to file a verified complaint, but hardly ever used
○ Use: can be used as evidence
○ Especially important w/ summary judgment
Other Sanctions
28 U.S.C. § 1927: any lawyer in federal ct who multiplies the proceeding in any case unreasonably should be
required by the ct to satisfy the excess costs, expenses, and attys fees reasonably incurred bc of such conduct
○ Used to be hardly ever invoked
○ Applies to all proceedings in federal court, including proceedings that are entirely oral
○ Applies only to attorneys, not to parties
○ 6th Cir held only applies to individual attorneys, not even the law firm
○ Split among circuits as to whether a showing of bad faith must be made in addition to a showing of
objective unreasonableness
Rule 38 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1912 can also be used to sanction
frivolous appeals (in addition to 1927)
In the absence of a statute or rule, cts have inherent power to sanction bad faith conduct by litigants or counsel-
-typically reluctant to extend it much & still need to give notice and opportunity to be heard
Unit 6: Discovery
Gather and exchange facts about issues that are in dispute (decided in pleadings)
Rule 26(f): parties supposed to get together for a discovery planning conference and decide whether they’re
going to change any of the rules (instead of X interrogatories, going to do Y)
○ Then will present this to a judge
○ Judge will issue a scheduling order that will tell you how long it’s going to last (Rule 16(b))
○ Set a trial date and date things were due
○ Length will depend on how complex the case is and where you are
Rule 26(a): each party has to disclose certain info to other parties (mandatory disclosures)
○ Rule 26(a)(1): initial disclosures
■ Requires each party to disclose certain info (incl ESI) w/o any request by another party
Must identify people with names and contact information holding discoverable info which the
disclosing party may use to SUPPORT your case
Copies or descriptions of things that you may use to SUPPORT your case
P give calculation of damages and D give any insurance information
■ Rule 26(a)(1)(C): requires party to produce initial disclosures no later than 14 days after Rule
26(f) conference --typically 2-3 months after D served w/ process
○ Rule 26(a)(2): disclosures about experts
■ 90 days before the trial date
■ Expert testimony: Qualified by knowledge, skill, experience, training, or education
Lay witnesses: only permitted to testify about matters observed, may not offer opinions
■ req detailed info about the expert & a report of her findings, conclusions, opinions to avoid
surprises at trial
○ Rule 26(a)(3): pretrial disclosures
■ Required no more than 30 days before trial
■ Must set forth detailed info about witnesses and evidence they intend to present at trial
■ Will have honed the issues remaining to be adjudicated
Rule 26(g): all discovery docs must be signed by counsel--certification that doc is basically correct & not
interposed for an improper cause (delay, harassment)
○ No safe harbor provisions and can be sanctions if rule is violated
○ Rule 11 doesn’t apply to discovery, only Rule 26(g) / R.37
Rule 26(e)(1)(a): party must supplement discovery responses if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or correct info hasn’t
otherwise been made known to the other parties
○ Each party has a duty to police itself to ensure that previous responses are still accurate
In response to discovery (required), party can assert objections
○ Ex: beyond the scope of discoverability (Rule 26(b)(1))
Protective order (Rule 26(c)): party can seek to limit discovery - something is sensitive or private
○ Judge could also say it needs to be disclosed but under protection, maybe only certain ppl can see
5 TOOLS OF DISCOVERY
Rule 26(b)(1): “Parties may obtain discovery regarding any 'nonprivileged' matter that is 'relevant' to any party’s
claim or defense and 'proportional' to the needs of the case . . . .”
○ Exception: Court has authority to issue a protective order placing conditions on the disclosure or
protecting against disclosure altogether (ex: only viewable by parties in case)
'Relevant' – loose standard. Doesn’t need to be admissible at trial, just has to appear reasonably calculated to
lead to the discovery of admissible evidence
■ Is the information relevant?
■ What is it relevant to?
○ Requesting party must meet low standard of “threshold relevance”
○ Resisting party must prove irrelevance prior to the trial
'Proportional': shouldn’t put undue burden or expense on party
○ Can make a difference in some of those close calls
○ Rule 26(b)(1): consider 6 factors:
■ importance of the issues at stake in the action
■ amount in controversy
■ parties’ relative access to relevant information
■ parties’ resources
■ importance of the discovery in resolving the issues
■ whether the burden or expense of the proposed discovery outweighs its likely benefit.
○ Information within this scope of discovery need not be admissible in evidence to be discoverable.
○ Bard IVC Filters Products Liability Litigation: P seeking damages for injuries caused by filter. Seeking
injuries about D’s discussion w/ foreign safety boards - hoping to contradict what D told the US FDA.
■ Held: not entirely relevant AND not proportional when you weigh the costs & benefits
■ Searching 18 foreign entities over a 13-yr pd for emails not entirely relevant to the suit (not US
company) is NOT proportional (potential costs outweigh benefits)
Rulw 26b2: specific limitations on ESI
○ Cost Shifting in Discovery'
■ Zubulake v. UBS Warburg LLC: did cost-shifting before FRCP rule change (still cited
today)
Rule 26(c)(1)(b): court can specify terms of disclosure in terms of time and place and
in terms of costs and expenses
Rule today: look at Rule 26(b)(1) factors (listed above) to see if it’s discoverable
Work Product Doctrine: protects material one party has generated in preparation of litigation from discovery (NOT
atty-client privilege info--that’s privileged)--Rule 26(b)(3): called “trial preparation materials” in rule
Hickman v. Taylor: created the common law work product doctrine (not codified in FRCP yet)
○ Wrote memos about witness interview (he writes notes to himself about what he says)
○ Not privileged bc not w/ client
○ SC holds he doesn’t have to turn over his notes bc Ps could talk to witnesses himself; don’t want to put
lawyers on trial
Rule 26(b)(3): Largely includes Hickman information
○ To get them, must show a substantial need and inability to get the info through other means
○ (A) Documents and tangible things: in Hickman also had intangible things--rule doesn’t address that,
but it’s understood that the mental impressions are protected as well
■ “in anticipation of litigation”
Something like an accident report that’s done every time there’s an accident, probably
wouldn’t be considered “in anticipation of litigation” if it’s something that’s done every time
or done for some type of business reason as well
■ Isn’t just stuff that the lawyer prepares. It can be an insurer or agent investigating as well. Doesn’t
just need to be an attorney.
■ Some exceptions:
Party has a substantial need for materials and can’t get through other means
○ Ex: if witness is dead, might not be another way to get that information
○ (B) Even when material needs to be turned over, must protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of a party’s attorney concerning
the litigation
JURY SELECTION
JMOL
May be motioned for by any party before the case is submitted to the jury but after the non-moving party has
been heard on the issue – Rule 50(a)(2)
○ D can file at close of P’s case and P files at close of all the evidence (after D’s case)
○ Requires looking at the burden of production again
Standard: no reasonable jury could find for non-moving party (same as for SJ) – Rule 50(a)(1)
○ Judge considers all evidence & reasonable inferences in light most favorable to the non-moving party
○ Inferences must be reasonable
■ Lavender v. Kurn: whenever facts are in dispute or the evidence is such that fair-minded men may
draw diff inferences, a measure of speculation & conjecture is required on the part of those whose
duty it is to settle the dispute by choosing what seems to be most reasonable inference
Haney hit by a mailhook case. Strong evidence against P, but enough facts were there to deny
JMOL & give it to the jury
○ Safest to think of JMOL as operating only on insufficient evidence
■ Even if a party has overwhelming evidence JMOL isn’t assured, but if so overwhelming
that a reasonable jury couldn’t find for the other side then JMOL is proper
○ If there is substantial evidence on both sides: court denies motion for JMOL and let’s jury decide
○ If 50-50 chance that P is liable (2 equal options; no credibility issues), D has to win as a matter of
law bc burden is on P to prove (Reid)
■ cow got onto a RR and killed by a train. If the cow got onto the right of way through an
open gate, RR wasn’t liable. But if it came through a break in the fence it was liable.
Renewed Judgment as a Matter of Law (judgment notwithstanding the verdict/JNOV) – Rule 50(b)
If granted, the basic result is the court ignoring the jury’s verdict
o Saying that the jury wasn’t reasonable as no reasonable jury could decide that way
Party must make motion for JMOL before case went to jury (or else they waived their chance)
Time limit: must be filed w/in 28 days after entry of judgment
o This limit cannot be extended – Rule 6(b)
Why can the judge grant JNOV when he didn’t grant the original JMOL?
o JNOV is treated as a delayed ruling on the original JMOL because the judge wanted to give the jury a
chance to come to the right decision because juries are important
o That way if the JNOV is reversed, the parties don’t have to redo the whole trial either
Rule 50(c)(1) judge granting renewed motion for JMOL must also make a conditional ruling on whether a new
trial is needed if JMOL is overturned
New Trials
Rule 59: allows the ct to order new trial if the ct strongly disagrees w/ jury’s verdict and thinks it was against
the heavy weight of evidence
○ Limited to 28 days after final judgement
■ Rule 60(b)(2): If a party discovers new evidence more than 28 days after judgment, may move
for relief provided the motion is filed < yr after judgment
○ Rule 59(d) allows trial ct to grant a new trial on its own, w/o a motion by a party (can’t do this for
JMOL)
○ Don’t have to file for JMOL first
○ Decision to grant a new trial isn’t considered a final judgment so typically it’s not appealable
Party could get a new trial for…
○ Jury misconduct
○ Judge decides there was a mistake in letting in certain evidence
○ Procedural error: error must prejudice the party, cannot be a harmless error, and a party must make a
timely objection to the error or else it is waived
○ Verdict “wrong”...see below
Standard: against the clear weight of the evidence (lower than “a reasonable jury could not find)
○ Appellate stnd for reversal higher: abuse of discretion (HIGH standard)
○ Not as high of a stnd as JMOL (not as drastic)
○ Dadurian v. Underwriters at Lloyd’s of London: CoA judge thinks testimony about where the $$ came
from is knowingly false so they said we need a new trial
■ New trial preferable to JMOL, allows courts to avoid making credibility determinations
When verdict is excessive, district ct may use remititur as an alternative to ordering a new trial
○ Can give an alternative amdt to P as an alternative to trial — P doesn’t have to accept, but if P
doesn’t the ct will order a new trial
○ Additur: opposite — verdict is too low and gives the D the choice of a specified higher verdict or
a new trial — THIS IS UNCONST IN FED CT (7th amdt) — many states still allow though
Rule 50(c) is use it or lose it — if you don’t also request a new trial if the JMOL is overturned, you
forfeit your right to seek a new trial after appeal
Appeals
General rule: no appeals until final judgment (different places where final judgment would occur)
○ EXCEPT (very small exceptions):
■ interlocutory appeal
■ Mandamus
○ Standards of review for appeals
■ De novo: from new, no deference to what the lower ct said
Use this stnd for questions of law -- think they’ll do a better job on the law
■ Clear error - deference
Abuse of discretion - only if it’s clearly incorrect
■ No reas jury
Same as renewed JMOL standard (no reas jury could find…)
Forces plaintiffs to join all claims arising from a single basic event into one case
(1) Same claim as case 1 (or “cause of action”)…walk through each, but go w/ transactional on exam
○ Primary Rights Test (min view): allowed to have different claims for different rights (right to property,
right to bodily integrity)
Still have issue preclusion so wouldn’t relitigate issues
Different evidence for the different issues (some overlap)
Carter v. Hinkle: car accident btwn P & D. Prop damage to P’s car & personal injury to P.
○ Held (minority approach): 2 claims; personal injuries and prop damage.
○ Single Wrongful Act test: stems claim from a single wrongful act and second case is barred if it
stems from the same unlawful act as the first
■ Similar to transactional, but there can be multiple wrongful acts within the same
transaction/occurrence so they don’t always overlap or reach the same answer
○ Transactional Test (MAJ) party has to join all claims stemming from the same transaction or
occurrence in the same case or else will be precluded from bringing further claims stemming from
that same transaction/occurrence
■ Some claim that is based on the “shared nucleus of operative facts”
Closely related facts
If taken together it forms a convenient unit for trial
If treating it as a single transaction squares with parties’ expectations
■ Ex: multiple contracts on similar subject/time/topic
(2) Same parties as case 1
○ OR persons “in privity” / other nonparty preclusion scenarios
■ Taylor v. Sturgell: Case 1: Herrick v. FAA. wanted FAA docs. FAA said no. sued for
docs. loses. Case 2: Taylor v. FAA. friend of Herrick, wanted same plans. Sued for the
docs. Same plane. Represented by the same attorney.
Held: No such thing as virtual representation, instead gave 6 exceptions for
when different parties can be in privity:
○ By agreement
○ Substantive legal relationship
○ Representative suits (e.g. class action, estates, etc.)
○ Party in present case “assumed control” over prior case (e.g. hired
lawyers)
○ Litigation by proxy
○ Special statutory scheme inconsistent with due process- bankruptcy and
probate proceedings
Principle: everyone gets their day in court
(3) Parties in same posture as in case 1
(4) Case 1 ended in valid final judgment “on the merits”
○ Valid: with jurisdiction (PJ & SMJ)
■ not the same thing as correct
■ NOTE: even if there’s a clear procedural error in case 1, still valid as
long as there’s jurisdiction. Up to parties in case 1 to appeal.
○ Final: final in the trial ct.
■ Case that’s pending on appeal is final in this purpose.
■ If decision is then reversed on appeal…
Party can reopen a judgment if the decision is based on the first case
that was overturned (Rule 60(b)(5))
○ On the merits: not decided on certain jurisdictional or procedural
grounds that would prevent the ct from getting to the merits.
■ Dismissal for lack of jurisdiction, improper venue, or failure to
properly join a party under Rule 19 are not under preclusive effect –
Rule 41(b)
■ Failure to prosecute, default, SJ, failure to state a claim etc. is still
“on the merits”
■ Settlement: not judgment on the merits but the settlement will
usually have clause saying P can’t sue again
Exceptions: Victor in first case is not barred from suing on judgment to
collect judgment
○ Claim preclusion doesn’t apply if the first court lacked SMJ
○ Parties agree to allow further suits later
○ For overwhelming concerns for fairness to be able to bring up
again later (really rare)
Issue Preclusion (Collateral Estoppel): narrower; some particular issue
treated as resolved; but a claim often has multiple issues IF YOU’RE
USING THIS CHECK CHOICE OF LAW (sticks to case 1; FCs usually
apply state preclusion law in div cases)
Ex: P v. D for battery - P wins
○ Then D says that P is a liar and that he never touched P
○ P sues D for slander in case 2
■ Not claim preclusion, but there’s some overlap
■ D touched P w/o consent - that was settled in case #1 so
wouldn’t be an issue in case#2
(1) Case 1 was valid final judgment on the merits - see above, same
requirements
(2) Same issue in case 1 + case 2
(a) Cromwell v. County of Sac: no issue preclusion bc the
bonds at issue were different (but both were related to the
fraudulent issuance of the bonds
(b) Consider how narrow “issue” is and the influence of which
party asserts it
(c) S v. J for negligence; S wins (general verdict); J v. S —>
issue preclusion on J’s negligence, issue preclusion on S’s
freedom from negligence (because they would have had to
determine both to reach that verdict)
(d) S v. J for negligence; J wins; J v. S for negligence —> NO
issue preclusion on J’s negligence, NO issue preclusion on S’s
negligence (could have been negligent in the first place OR it
could have been contributory negligence on the part of S, we
don’t actually know)
(3) Issue essential to the judgment in case 1
(a) preclusive effect if changing it affects outcome of the case
w/ all other issues held constant (Rios)
(i) Prof’s on/off switch trick: hold one constant & flip
the other to see if it changes the outcome, if it does then
it’s essential
(ii) In orig case D was found negligent but P was also
found negligent so went in D’s favor. Issue of P’s
negligence is precluded, but D’s isn’t. If you make it to
where P was not negligent but D still was, then the
outcome would change to P winning. If you switch it to
where D was not negligent, but P still was, then the
outcome of P losing would stay the same.
(b) S sues J for negligence. J raises contributory negligence
def. Jury returns special verdict finds S negligent and J not
negligent. Ct enters verdict for J. THEN J sues S to recover
damages arising from same accident. Can J assert issue
preclusion against S as to (1) his freedom from negligence or
(2) S’s negligence?
(i) Findings here are alternative determinations...AKA
neither finding was essential…
1) S neg
1. a) If you flip S, not J → S not neg, J not neg
→ J wins
2. b) SO S’s finding of negligence not
essential
2) J not negligent
1. a) If you flip J, not S → S neg, J neg → J
wins
2. b) So J’s finding of not negligence is NOT
essential either
(ii) 2 restatements take different approaches:
1) Alternative findings restatement: even
though 1st one wasn’t essential to the case,
give preclusion to both
2) Restatement 2: don’t give preclusion to
either unless affirmed on appeal
(iii) Cts disagree on which approach to use
(4) Against whom may preclusion be asserted?
(a) only parties of case 1 can be estopped (or
privity exceptions - Taylor)
(i) Everyone has their day in court
(5) Who can assert estoppel?
(a) Only parties (mutuality) - old view
(b) Only stranger D (nonmutual
defensive)
(i) Stranger D can assert estoppel to
DEFEND THEMSELVES from
being sued
(ii) Bernard v. Bank of America Nat’l
Trust & Savings Assn: first family
tried to sue Cooks for getting family
member’s money, then family tried to
sue bank for giving money to the
Cooks
1) Bank (not in case 1) allowed
to assert estoppel to defend
themselves
(c) Both P and D (nonmutual
offensive)
(i) Allows stranger P to assert
issue preclusion...already
litigated so I should also win
here
(ii) Parkland Hosiery Co. v.
Shore (SC, but only applies to
FCs): Allows nonmutual
offensive collateral estoppel at
the discretion of the trial
court…consider rejecting if
following factors…
1) P could have easily
joined in the earlier
action (Easy joinder)
1. a) Don’t want to
create an incentive
for P to wait and
see
2) OR where the
application of offensive
estoppel would be unfair
to D
1. a) Foreseeability
of
litigation/incentive
to litigate
1. i) Ex: if case
1 for small
damages,
less
incentive to
defend
vigorously
2. b) If basis for
estoppel is
inconsistent w/
one or more
previous
judgments in favor
of D (ex: large
accident case)
3. c) If 2nd action
affords D
procedural
opportunities
unavailable in 1st
action that could
cause a different
result
1. i) Ex: if D
had to
litigate in an
inconvenient
forum
(iii) cts don’t like to allow it because it creates incentive to ‘wait and see’ how other’s litigation goes and it
creates a risk of inconsistent judgments
1) g. train case w/ 100 Ps, 1st 20 trains loses, 21 P wins, 22-100 could use preclusion to ride the wave
(6) Exception: May not apply if there was an intervening change of law
Which Preclusion Rules Apply if Jurisdiction Differs?
○ State to State: first state’s preclusion rules
○ State to federal: Law of preclusion that applies in case 2 is the law from the rendering court
(preclusion law “sticks” to the judgment)
○ Fed to Fed (different states):
■ Fed question case: federal CL of preclusion (Parkland Hosiery)
■ Diversity: applies federal law BUT the fed law will = state law
Joinder and Supplemental Jur (mention 1367c if in an
essay ?)
Step 1: What picture / rule applies? Step 2: Follows the rule? Step 3: SMJ / Supplemental JurisdictionFor R.18 (&
others), make sure to check aggregation rules in SMJ section! (P may aggregate claims even if unrelated)Impleader –
R.14
o 14a(1) D MAY serve a nonparty who is liable for all or part of the claim against it; has 14 days after
serving the answer to serve TPD; OR if late, D needs the court’s leave to implead the TPD (IMPLEAD)
MAY serve; not same parties so would not be claim preclusion
AKA can join a third-party to get…
Indemnity (full) (insurance; vicarious liability) OR
Contribution (partial) - typically for joint tortfeasors
Marvicka: Child inj using a jointer machine made by D. D filed 3rd party complaint alleging right to
indemnity from school district for negligent maintenance of machine
Indemnity: enables tort-feaser to shift entire burden of judgment to another
Contribution: 2+ actors liable; each required to pay his own proportion of damages
o (2) TPD…
must assert any def against TPP’s claim under R.12
must assert any counterclaim against P under R.13a; may assert others under 13b; or any
crossclaim against a TPD under R.13g
may assert any defense that TPP has to P’s claim, and
may also assert against the plaintiff any claim arising out of the transaction or occurrence that
is the subject matter of the plaintiff's claim against the TPP (DOWNSLOPING)
if it had any others would use R.18
o (3) P may also assert claims against TPD if it arises out of the same transaction/occurrence
(UPSLOPING). If It does, TPD must assert defense, counterclaim, or crossclaim
o (4) Any party may move to strike the third-party claim, to sever it, or to try it separately.
o (5) TPD may proceed against a nonparty who is or may be liable for all/part of claim
against it
R.14b When a claim is asserted against a plaintiff, the P may bring in a 3d party if this rule would
allow a D to SMJ – READ 1367 LITERALLY
o Check if any of the suits have SMJ independently
o No SMJ? → §1367(a); whether it satisfies Gibbs (common nucleus of oper fact w/ the
underlying action)
Impleader: YES; requires TPD to be liable to D for all/part of P’s claim (underlying
dispute)
Downsloping: meets test; can only be asserted if they arise from same transaction or
occurrence as underlying dispute
TPD does not equal P under 1367, so DOES NOT APPLY
Upsloping?READ 1367 LITERALLY (PLAINTIFF CAN’T BRING…NOT TPP; NOT
CLAIMANT)
Federal claim → ok
Same state → (See Owen)
Owen Equipment & Erection Co. v. Kroger: OPPD impleaded Owen, then P filed
upsloping claim against Owen; OPPD got SJ. W/ Owen and Kroger – not
diverse.
o Holding: a plaintiff cannot bring a cause of action against a citizen of the
same state in a diversity case
EVEN under supplemental jurisdiction
Note: If P asserts a compulsory counterclaim (13a) against TPD, there’s no
supp jur (if there’s a complete diversity problem)
o Bc it’s a claim by a plaintiff, by a person made a party under R.13
o This one is unclear what the plaintiff would do in this situation
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